poor conditions of detention in the Republic of Belarus

no extradition to Belarus

Munich - 24.10. 2018 - In its decision of 24. 10. 2018, the Higher Regional Court Munich (OLG München, 1 AR 26/18) declared the extradition to Belarus inadmissible because the conditions of detention to be expected there do not meet the criteria established by the European Court of Human Rights in its fundamental decision of 20.10.2016 (ECHR, judgment of the Grand Chamber of 20.10.2016 - 7334/13, Mursic v Croatia).

Size of detention space as a measurable criterion

The Prosecutor General's Office of the Republic of Belarus had previously stated that, with regard to the conditions of detention that would await the persecuted person in the event of extradition, the persecuted person would be placed in prisons in Belarus, where he would have only 2.5 square metres or 2 square metres available in the detention cell. Such statements by the Prosecutor General's Office of the Republic of Belarus on the detention situation (2.5 square metres and 2 square metres of detention space, respectively) have also appeared in other extradition proceedings in Germany and have been accepted differently by German courts (see below). The Higher Regional Court in Munich (1 AR 26/18) was not at all satisfied with the outspoken commitment of the Belarusian Attorney General's Office to the inhumane size of the detention rooms. The court therefore determined in the extradition proceedings that the detention conditions in Belarus constitute an obstacle to extradition pursuant to § 73 IRG, since it is not ensured that the detention conditions meet the minimum human rights requirements laid down in Art. 3 MRK. According to Art. 6 (3), the requirements which Art. 3 MRK standardises belong to the principles of Art. 6 referred to in § 73 IRG.

Although the Court of Appeal sees strong indications of structurally inadequate prison conditions in Belarus ...

In the meantime, however, the Berlin Higher Regional Court (KG) apparently handles extradition requests from Belarus differently. In a decision of 15.02.2019 - (4) 151 AuslA 178/17 (10/18) the KG declared: "The detention conditions in the Republic of Belarus do not prevent extradition", although the Senate is aware "that there are strong indications for structurally inadequate detention conditions in the requesting state".

... but leaves assurances in the extradition procedure sufficient

The Berlin Higher Regional Court (KG) nevertheless relies on assurances from the Prosecutor General's Office of the Republic of Belarus that the person being prosecuted will be detained in prisons that comply with the European Convention on Human Rights and the European Prison Rules of 11 January 2006 (Council of Europe Recommendation REC(2006)2) during the period of pre-trial detention and possible imprisonment. Such assurances should be sufficient to address concerns arising from maladministration in the Belarusian penitentiary system (4) 151 AuslA 178/17 (10/18). In extradition traffic between Germany and other states, with regard to compliance with the principles of the rule of law and the protection of human rights, the requesting state should in principle be placed in trust as long as it is not to be expected in the individual case that the assurance will not be complied with. - I do not know whether the assurance in the case of the Court of Appeal looked exactly the same as in our case of the Munich Higher Regional Court, where a inhumane detention room size of only 2.5 square metres or 2 square metres was assured. Because then however it was to be expected clearly that the assurance of humane detention accommodation was not kept, because 2.5 square meters or 2 square meters are not sufficient for the European Convention on Human Rights.