The High Court did not sufficiently clarify whether Nikola Lakušić from Belgrade would be subjected to torture, if he were to be extradited to Serbia, which is looking for him for aggravated attempted murder...
This is stated, among other things, in the decision of the Appellate Court, which accepted the defendant's appeals, annulled the first-instance decision on extradition and sent the case back for a new decision.
Earlier in the courtroom, Lakušić demanded that he not be extradited to his homeland, because "he will be killed immediately in prison."
A warrant was issued for him due to suspicion that he wounded Srđan Mićić and his friend Teodora P. in Belgrade in early August 2016.
"Based on the appeals of the defendant LN and his defense attorneys, the first-instance decision is overruled due to a significant violation of the provisions of the criminal procedure... This is for the reason that the first-instance decision was made in addition to the stated essential violation of the provisions of the criminal procedure, since there is also no reason for decisive facts, so the annulment of the disputed solution appears as necessary", the solution states.
They remind that the first-instance court found that the legal prerequisites from the Law on International Legal Assistance in Criminal Matters were met for the extradition of the accused Lakušić, at the request of the Ministry of Justice of Serbia, in order to conduct criminal proceedings due to the existence of a well-founded suspicion that he committed a criminal offense - aggravated attempted murder , in conjunction with the criminal offense of illegal production, possession, carrying and trafficking of weapons and explosive materials....
However, the judges of the Court of Appeal claim that such a conclusion cannot be accepted and cite Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which stipulates that no one may be subjected to torture or inhuman or degrading treatment or punishment, as well as the article defined that extradition will not be granted if the requested state has a reasoned opinion that the extradition was requested for a criminal offense under general law for the purpose of prosecuting or punishing a person because of race, religion, nationality or political beliefs or if it is considered that the position of that person would be aggravated for those reasons...
"The defendant's defense attorneys submitted evidence with the appeal, and what evidence exists in the case files in support of their claim that there could be a violation of Art. 3 of the Convention. In the first-instance decision, no clear and valid reasons were given regarding the aforementioned evidence, which had to be evaluated both individually and in their mutual relationship. In this regard, the obligation of the first-instance court was to assess in a specific case whether proceeding under the international obligation to extradite has primacy in relation to the protection of individual rights, i.e. to weigh what is more important, whether proceeding under such an international obligation or the protection of individual rights, in particular in the context of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which absolutely prohibits torture, inhuman or degrading treatment regardless of the victim's behavior"...
Because of everything, they state that the appeals show that the first-instance court did not sufficiently appreciate the facts and circumstances related to possible violations of basic human rights and freedoms in case he is extradited to the competent authorities of the Republic of Serbia...
"Nor can we recognize the reasons that the first-instance court conducted an appropriate assessment regarding the treatment of the defendant in the case of extradition to the RS... It should be pointed out that the position of the Constitutional Court of Montenegro was expressed through the decisions of that court, that regular courts have an obligation to declare due to of which they believe that extradition between states has primacy in relation to the protection of individual rights, in the context of court proceedings, the state of human rights and general circumstances in the state requesting extradition. As a result of the above, the contested decision does not show that an appropriate assessment was carried out regarding the further treatment of the defendant in the case of extradition to the country requesting extradition, nor that the first instance court gave valid reasons in this regard, and the defendant during the hearing before the first instance court problematized", added the judges.
They explain that according to the practice of the European Court of Human Rights, the answer to the question of what constitutes inhuman and degrading treatment or punishment depends on all the circumstances of the case and the entire Convention is imbued with the search for a fair relationship between the requirements of the general interest of the community and the requirements for the protection of the fundamental rights of the individual.
"The question is whether the extradition of a fugitive to another state, where he would be subjected or likely to be subjected to torture or inhuman or degrading treatment or punishment, in itself leads to the responsibility of the contracting state under Article 3 of the Convention and would hardly be in accordance with the fundamental values of the Convention if a contracting state knowingly extradites a fugitive to another state when there are substantial reasons to believe that he is at risk of being subjected to torture there, regardless of the gravity of the alleged criminal offense and extradition under these circumstances would be completely contrary to the spirit and meaning of Article 3 of the Convention. The first-instance decision does not contain clear and valid reasons regarding all of the above, which fact is well-grounded in the appeals, which is why the cancellation of this decision proved to be necessary".
They emphasize that in the retrial the first-instance court will have to evaluate all the facts from the case file, after which it will be able to make a proper and legal decision.
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