Zitieren als:
EGMR, Urteil vom 07.12.2017 - 34999/16 D.L. gg. Österreich - M26033

Staatlicher Schutz vor Blutrache im Kosovo nach Auslieferung gegeben:

1. Eine Auslieferung darf zwar nicht erfolgen, wenn der betroffenen Person im Zielstaat eine EMRK-Verletzung droht. Dies gilt auch bei Gefahren, die von nichtstaatlichen Akteuren ausgehen.

2. Der von Blutrache betroffene Beschwerdeführer kann aber nach Auslieferung geschützt werden. Blutrache existiert im Kosovo nach wie vor, und davon betroffene Personen, die sich in Freiheit befinden, können vom Staat nur wenig Schutz erwarten. Der Schutz des Beschwerdeführers allerdings kann gewährleistet werden, da er sich nach Auslieferung in Haft befinden wird. Staatliche Stellen haben in seinem Fall auch bereits angemessen auf Bedrohungen reagiert.

3. In Haft hat der Betroffene keine Misshandlungen zu befürchten. Zwar wurden Vorfälle von Misshandlungen durch Polizei und Strafvollzugsbeamte gemeldet, aber die Gesamtsituation hat sich gebessert und insbesondere bei der Hafteinrichtung Mitrovica wurden keine Misshandlungen berichtet.

(Leitsätze der Redaktion; im Verfahren hatte der EGMR eine vorläufigen Maßnahme nach "Rule 39" seiner Verfahrensordnung erlassen; siehe EGMR-Rechtsprechungsübersicht in AM 3/2018.)

Schlagwörter: Serbien, Kosovo, Auslieferung, Blutrache, Strafe, Haft, Haftbedingungen, Europäischer Haftbefehl, Haftbefehl, unmenschliche oder erniedrigende Behandlung, Schutzfähigkeit, Schutz, nichtstaatliche Akteure,
Normen: EMRK Art. 2, EMRK Art. 3,


60. The Court reiterates that the question of the permissibility of the applicant’s extradition was the subject of three rounds of proceedings, namely the initial extradition proceedings, the proceedings following the applicant’s application for their reopening, and the proceedings before the Supreme Court concerning his application for their renewal. In the initial extradition proceedings, the domestic courts comprehensively examined the question of the alleged influence of the Lu. clan and any risks contrary to Articles 2 and 3 the applicant might face if extradited. In the reopening proceedings, they examined whether the sworn statement by L.Q. was capable of immediately dispelling the suspicion against the applicant, as well as taking into account the latest Kosovo country reports relating to the applicant’s allegations. In the renewal proceedings, the Supreme Court equally assessed the alleged threats of violations of Articles 2 and 3 of the Convention.

61. The Court finds that in all three sets of proceedings, the domestic courts comprehensively examined the applicant’s claims and extensively gave reasons as to why they believed that his extradition was permissible. The Court is therefore satisfied that they have complied with their duty to conduct an individual risk assessment in his case.

62. Concerning the substance of this risk assessment, the Court reiterates that there are essentially two complaints to be examined, namely (ii) the applicant’s claim that his life and limb were in danger in Kosovo because of the alleged threat emanating from a blood feud with the Lu. clan, which the Kosovo authorities were not willing or able to protect him from, and (iii) the allegation that the detention conditions in Kosovo fell short of Article 3 standards, in particular that ill-treatment by the police and prison officers, inter-prisoner violence and corruption were prevalent in places of detention and prisons in Kosovo. The Court will consider them separately below.

(ii) Protection from alleged blood feuds

63. When it comes to the substance of the applicant’s allegations that his life and limb were in danger in Kosovo because of the alleged threat emanating from a blood feud with the Lu. clan, the Court notes that there is only little information available on the phenomenon of blood feuds in Kosovo, and that there seem to be no official statistics on violence resulting from their occurrence (see paragraphs 36-37 above). What can be said from the available material is that blood feuds still exist in Kosovo and persons at liberty who are affected by blood feuds appear to have little State protection, as they would have to be constantly monitored, which is not considered feasible. However, firstly, even if one assumed that there was an ongoing blood feud involving the applicant in Kosovo, his situation is different from that of individuals in liberty, as he would be in a prison, where he would be monitored by the authorities twenty-four hours a day. Contrary to what the applicant alleged, the international reports on Kosovo do not indicate that the issue of corruption among detention officers was so widespread and systematic that third parties could exert any amount of influence there. The issue rather arises in the context of favouritism, concerning the use of mobile phones and other contraband, or unwarranted privileges, but none of the international reports consulted (see paragraphs 31-35 above) mention any instance of a prison officer being bribed into allowing a blood-feud killing to be carried out in prison (contrary to what the applicant suggested could be the case with him and the Lu. clan). In this respect the Court observes that, from the material before it, it appears that Sm. Lu., to whom the applicant referred to in particular in his appeal of 24 March 2016, was no longer detained in prison in Kosovo. There is no further indication that a member of the Lu. clan was detained in prison in Kosovo, in Mitrovica prison in particular or that the Kosovo authorities were not able to protect the applicant against such person.

64. Secondly, the Court notes that the Kosovo authorities have already demonstrated – even specifically with regards to the applicant – that they were indeed capable of responding to threats against him, specifically by convicting S.Lu. of aggravated threat (see paragraph 15 above). The Court therefore finds it safe to conclude that the Kosovo authorities would be willing and able to equally respond to any new threats against the applicant while in prison.

65. Thus, the Court concludes that, regarding the complaint of a lack of State protection from a blood feud, the applicant has not substantiated a further threat concerning Article 2 or 3 of the Convention if returned to Kosovo.

(iii) Detention conditions

66. According to the latest international reports (see paragraphs 31-35 above), the Court notes that incidents of ill-treatment of detainees and prisoners by the police and, to a lesser extent, prison officers remain a concern, and that the Kosovo authorities have yet to bring the problem of favouritism and corruption under control, in particular at Dubrava Prison (see paragraph 31 above). No allegations of ill-treatment were however reported at Mitrovica Detention Centre, where the applicant alleged he would most likely be held if extradited.

67. Furthermore it appears that the overall situation has improved, as noted by the CPT in its report on the 2015 Kosovo visit. Inter-prisoner violence did not appear to be a major problem anymore at any of the visited facilities, and those prisons where material deficiencies had previously been found were in the course of being closed down and replaced by new facilities. The Court therefore cannot deduce from the information available that there was a situation of widespread or systematic violence against prisoners in Kosovo prisons which would render any extradition to Kosovo incompatible with Article 3 of the Convention.

68. The Court must therefore examine whether the applicant’s personal situation and circumstances are such that his extradition to Kosovo would contravene Article 3 of the Convention (compare, for example, Tershiyev v. Azerbaijan, no. 10226/13, § 55, 31 July 2014). In his submissions to the Court, the applicant relied on international reports. He did not allege that he had ever experienced ill-treatment by the Kosovo authorities himself before, nor were his allegations that he personally would be at a specific risk if imprisoned in Kosovo sufficiently substantiated. The Court considers therefore that the applicant has failed to substantiate that he was under any kind of particular, individual threat to be subjected to treatment contrary to Articles 2 or 3 of the Convention. [...]