The International Criminal Law Forum, organized by the publishing house “Yuridichna Praktika” and the Association of Ukrainian Corporate Counsel, continues in Kyiv. The event’s program continued with a special presentation by Elvira Lazarenko, a partner at Barristers Law Firm, on the topic “The Risk of Violating Convention Rights as Grounds for Denying Extradition.”

Ms. Lazarenko noted that a state’s obligation to thoroughly examine circumstances that may indicate a risk of fundamental rights violations stems from international treaties governing extradition procedures, as well as from the Convention for the Protection of Human Rights and Fundamental Freedoms.

The expert highlighted the key conventions governing extradition, including the European Convention on the Extradition of Offenders, the United Nations Convention against Transnational Organized Crime, the United Nations Convention against Corruption, and the Convention on Extradition (the latter entered into force for Ukraine in 2023).

She emphasized that, under the provisions of some of these conventions, extradition may be refused if there is a risk of the death penalty or if extradition would cause harm to the person’s situation, and noted that, upon ratifying the European Convention on the Extradition of Offenders, Ukraine entered a reservation reserving the right not to extradite a person if, due to their state of health, extradition would be detrimental to their health.

Ms. Lazarenko pointed out that most cases in which violations of Convention rights were found in extradition cases considered by the ECHR concerned Articles 2 and 3 of the Convention (finding that there were serious risks of ill-treatment and threats to life). Violations under Articles 5, 6, and 8 of the ECHR were recognized less frequently. She recalled that the ECHR’s first finding of a violation under Article 6 of the ECHR occurred in 2012 in the case of “Othman (Abu Qatada) v. UK” (8139/09) due to the risk of a gross denial of justice resulting from the possible use, during the review of criminal proceedings against the applicant in Jordan, of evidence obtained through the torture of third parties.

Ms. Lazarenko also analyzed in detail the arguments set forth in the decisions of European courts regarding the refusal to extradite individuals at the request of the competent authorities of Ukraine. In particular, in 2023, a French court refused to extradite a Ukrainian businessman, finding that extradition was incompatible with Article 6 of the ECHR due to the existence of a real risk of a flagrant denial of justice resulting from martial law in Ukraine and the armed conflict. The French court took into account Ukraine’s declarations of derogation from its obligations under international treaties and the amendments made to Article 615 of the Code of Criminal Procedure of Ukraine, which limited judicial oversight, as well as the lack of guarantees that criminal proceedings would be conducted within a reasonable time. 

It cited the example of a decision by an Italian court, which rejected assurances from the Office of the Prosecutor General regarding the provision of adequate conditions of detention for the individual following his extradition to Ukraine. The court took into account the ECHR’s landmark decision in Sukachov v. Ukraine, which identified systemic and structural problems in Ukraine’s penitentiary system. The court did not accept the arguments of the Office of the Prosecutor General that the Kyiv Pretrial Detention Center has paid cells with improved conditions and that the individual would be provided with the minimum permissible space for detainees of 4 square meters. The Office of the Prosecutor General’s failure to provide information on the current number of persons held in pretrial detention prevents the court from concluding that there is no overcrowding in this facility. In addition, the court also took into account Ukraine’s derogation from its obligations under international treaties and amendments to the Code of Criminal Procedure of Ukraine that limit judicial oversight during martial law. Consequently, the court effectively found that extradition was incompatible with Articles 3 and 6 of the ECHR.

Similar decisions were issued by courts in Sweden and Austria, taking into account the individual risks to the persons concerned and the overall situation in Ukraine related to the war and the state of the legal system.

At the conclusion of her presentation, Ms. Lazarenko highlighted the measures Ukraine has taken to improve the efficiency of extradition procedures. She noted that a Strategy for Reforming the Penitentiary System had been developed, and a list of facilities for holding extradited persons had been approved, primarily in central and western Ukraine—at a considerable distance from the combat zone. According to her, the number of persons extradited to Ukraine from 2022 to 2025 in response to requests from the Office of the Prosecutor General increased approximately fivefold, and in response to requests from the Ministry of Justice—approximately tenfold. According to information from the Ministry of Justice of Ukraine and the National Anti-Corruption Bureau of Ukraine (NABU), Germany is the leading country in terms of decisions to extradite individuals to Ukraine, whereas, according to Austrian sources, since the start of Russia’s full-scale invasion of Ukraine, Austria has denied 26 of Ukraine’s 27 extradition requests.