Legal counsel close to Vijay Mallya mulling to approach ECHR

The lawyers close to Mallya said they will use all possible avenues to ward off extradition.

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Mumbai: Legal counsel close to Vijay Mallya told ET that they are exploring the possibility of approaching the European Court of Human Rights (ECHR). While the ECHR is yet to officially receive an application from Vijay Mallya, beleaguered liquor baron. However, top lawyers close to the development say the move is imminent as, according to them, the recent UK High Court's recent judgement allowing his extradition to India are in violations of certain human rights that the ECHR protects.

UK is a signatory to ECHR. However no application seems to have been filed as of now.

Replying to a query sent by The Economic Times, Denis Lambert, press officer, ECHR said “…I just can tell you that the Court has not received, for the time being, any request for a Rule 39 interim measure on behalf of Vijay Mallya.”

The lawyers close to Mallya said they will use all possible avenues to ward off extradition.

"We have been in touch with the UK authorities for early extradition of Vijay Mallya. We have also requested the UK side not to consider his asylum if requested by him," External Affairs Ministry spokesperson Anurag Srivastava said in a media briefing on Thursday.

On May 27, ET had reported that Mallya could have sought asylum in the UK. However sources aware of the development did not confirm if the application was moved before May 14 --- the day the UK High Court refused to grant him leave to approach that country's Supreme Court. The High Court order had triggered the commencement of a 28-day period during which the extradition order was supposed to have been issued by the UK Home office.

There are essentially two options before Mallya. To seek political asylum in UK or to approach the ECHR. He can also use both routes. "We don't know which one he has used," a Indian government official said.

While there is no official confirmation that an asylum application has in fact been filed, the fact that no application has reached the ECHR, as per its spokesman, would appear to indicate that it was an asylum application which was causing the delay.

According to recent media reports, the British High commission cited a "confidential legal issue" that has surfaced during the extradition process. Mallya’s extradition was due soon after the loss of his appeal in the UK High Court challenging a 2018 order of extradition on the request of Indian authorities before the Supreme Court.

Pavani Reddy legal director Clyde & Co London said, "Logically and legally at this point of time, the only confidential legal issues cited by the UK High Commission could be asylum and human rights. The extradition process has no other legal processes involved."

An e-mail sent to the Indian High Commission in UK remained unanswered until press time.

Legal experts told ET that the embattled businessman’s plea before ECHR can be filed for breach of Article 3 (prohibition of torture), Article 5 (Right to liberty & security) and Article 6 (Right to a fair trail).

“However this option has to be availed before UK Home Office of minister Priti Patel certifies the extradition order,” said a legal expert familiar with the developments.

Vijay Mallya was unavailable for comment.

Another senior government official told ET that many of the issues concerning alleged human rights violations have already been addressed before the courts in the UK during prolonged legal proceedings. During the course of his hearing before London’s Westminster Magistrate’s court, Mallya had raised issues concerning the conditions at Mumbai's Arthur Road jail. He had alleged lack of access to natural light or fresh air.

In response, the Indian authorities provided a "step by step video report" about the detention centre for Mallya, following which it approved the said facility for him. “However the COVID cases at the designated Arthur Road facility in Mumbai could be a fresh ground cited by Mallya. And he won't let go of any legal remedy that would help him delay the execution of his extradition,” the official added.

The ongoing Covid 19 health scare, the state of Indian prisons and Mallya's offers to pay off the loans to banks, could be some of the top reasons cited , top lawyers close to the development said.

Explaining the procedure before ECHR, a senior Indian government official, requesting anonymity, told ET, that there are a number of grounds for appeal. “There are four major grounds on which an applicant tried by a member state can file an appeal. This includes exhaustion of domestic remedies, applicant suffering significant disadvantage and the complaint to be based on the European convention,” said the official.

Essentially there are two main stages in the consideration of cases brought before the Court: the admissibility stage and the merits stage. The processing of an application also goes through different phases.

A British High Commission spokesperson said: “Vijay Mallya last month lost his appeal against extradition, and was refused leave to appeal further to the UK Supreme Court. However, there is a further legal issue that needs resolving before Mr. Mallya’s extradition can be arranged. Under United Kingdom law, extradition cannot take place until it is resolved. The issue is confidential and we cannot go into any detail. We cannot estimate how long this issue will take to resolve. We are seeking to deal with this as quickly as possible.”
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