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FIFTH
SECTION
CASE OF KREYDICH v. UKRAINE
(Application
no. 48495/07)
JUDGMENT
STRASBOURG
10 December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kreydich v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
judges,
Mykhaylo Buromenskiy, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar.
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48495/07) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Belarusian national, Mr Viktor Anatoliyevich
Kreydich (“the applicant”), on 8 November 2007.
- The
applicant was represented by Mr A.P. Bushchenko, a lawyer practising
in Kharkiv, Ukraine. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev, of
the Ministry of Justice of Ukraine.
- The
applicant alleged that in the event of his extradition to Belarus he
would face the risk of torture and of an unfair trial, and that his
detention pending extradition had been unlawful. He further alleged
that he was not able to challenge his arrest, subsequent detention
and the decision on his extradition before the national courts, and
that he had no right to compensation for his detention.
- On
11 September 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3). The case was given priority
under Rule 41 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Kyiv, Ukraine.
- In
the middle of 2006 the applicant left Belarus as he had been invited
to work as a coach for the national free-style wrestling team of
Ukraine.
- On
15 June 2007 the General Prosecutor’s Office of Belarus
instituted criminal proceedings against the applicant for aiding and
abetting bribery (maximum sentence of six years’ imprisonment).
Since his whereabouts were unknown, a warrant for his arrest was
issued.
- On
2 July 2007 the Kyiv Organised Crime Department received a request
from the Main Organised Crime Department of Belarus to assist in
arresting the applicant.
- On
18 July 2007 the General Prosecutor’s Office of Belarus charged
the applicant with participation in organised crime, abuse of
authority, aiding and abetting bribery and other offences (maximum
penalty of fifteen years’ imprisonment).
- On
the same day the applicant was arrested in Kyiv, Ukraine.
- On
20 July 2007 the Pecherskyy District Court of Kyiv authorised the
applicant’s detention pending a decision on his extradition.
- On
25 July 2007 the General Prosecutor’s Office of Belarus
requested the applicant’s extradition to Belarus.
- On
31 July 2007 the Kyiv City Court of Appeal changed the decision of 20
July 2007 further to an appeal by the applicant and authorised his
detention for a maximum of forty days pending receipt of the request
for his extradition.
- On
20 August 2007 the Pecherskyy District Court of Kyiv authorised the
applicant’s continued detention. This decision was upheld on 30
August 2007 by the Kyiv City Court of Appeal.
- By
letter of 25 October 2007 the General Prosecutor’s Office of
Belarus stated that, if extradited, the applicant would not be
subjected to the death penalty or to any treatment contrary to
Article 3 of the Convention; that he would be provided with the
necessary medical treatment; that he would be given a fair trial; and
that he would not be persecuted for his political beliefs.
- On
5 November 2007 the General Prosecutor’s Office of Ukraine
(“the GPO”) authorised the applicant’s extradition
to Belarus. On the same date the decision was sent to the applicant.
The applicant was also informed that this decision could be contested
by him in court within ten days of its receipt.
- On
13 November 2007, under Rule 39 of the Rules of Court, the President
of the Fifth Section of the Court invited the Government of Ukraine
not to extradite the applicant to Belarus.
- The
applicant received the decision of 5 November 2007 on 16 November
2007, but did not challenge before in the Kyiv Regional
Administrative Court until 19 February 2008.
- On 7 April 2008 the applicant was granted refugee
status in Ukraine by the State Migration Committee.
- On
21 April 2008 the Pecherskyy District Court rejected an appeal by the
applicant’s lawyer against the court decisions of 20 July and
20 August 2007 since they had already been appealed against
under the ordinary appeal procedure and the first-instance court was
not competent to quash them. This decision was upheld on 5 May 2008
by the Kyiv City Court of Appeal.
- On
25 April 2008 the GPO filed an objection with the State Migration
Committee against the decision granting the applicant refugee status.
According to the applicant, execution of the relevant decision was
suspended pending the Committee’s reply.
- On
7 May 2008 the Kyiv Regional Administrative Court rejected a
complaint by the applicant against the decision to extradite him. In
particular, the court indicated that the applicant had not yet been
granted refugee status when the contested decision had been taken on
5 November 2007. The applicant did not appeal.
- By
letter of 14 May 2008 the State Migration Committee informed the GPO
that its objection to the decision of 7 April 2008 had been rejected.
- On
23 May 2008 the GPO challenged the decision of 7 April 2008 in court.
- On 21 July 2008 the Kyiv Regional Administrative Court
rejected the GPO’s request to quash the decision of 7 April
2008.
- On 25 November 2008 the Kyiv Administrative Court of
Appeal upheld the decision of 21 July 2008.
- On 28 November 2008 the GPO refused to extradite the
applicant to Belarus. On the same day the applicant was released.
II. RELEVANT LAW AND PRACTICE
- The
relevant international and domestic law and practice are summarised
in the judgments Soldatenko v. Ukraine (no. 2440/07, §§
21-29 and 31, 23 October 2008) and Svetlorusov
v. Ukraine (no. 2929/05, §§
32-34, 12 March 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 6 § 1 AND 13 OF
THE CONVENTION
- The
applicant complained that, if extradited, he would face a risk of
being subjected to ill-treatment and an unfair trial by the Belarus
authorities, which would constitute a violation of Articles 3 and 6 §
1 of the Convention. He further complained, under Article 13 of the
Convention, about the absence of effective remedies in respect of his
complaints under Article 3 of the Convention. The invoked provisions,
in so far as relevant, read as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 6 § 1
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court notes that the applicant’s extradition to Belarus was
refused by the Ukrainian authorities and that the extradition
proceedings against him were discontinued. There is nothing in the
case file to suggest that he still faces a risk of being extradited
to Belarus.
- Accordingly,
the applicant cannot claim to be a victim of a violation of his
rights under Articles 3, 6 § 1 and 13 of the
Convention as required by Article 34 of the Convention. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
- In
this connection, the Court also notes that there is no need to
continue the interim measure applied on 13 November 2007. It
therefore lifts the measure.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 4 AND 5
OF THE CONVENTION
- The
applicant complained under Article 5 § 1 (f) of the Convention
that his arrest and detention were unlawful. He further complained
that since the date when he had received refugee status his detention
could not be considered to be with a view to extradition and that
none of the grounds listed in Article 5 § 1 of the Convention
was applicable to his detention, as the domestic law prohibited the
removal of refugees from the territory of Ukraine. The applicant also
complained under Article 5 § 4 of the Convention that he had had
no possibility to challenge his arrest and detention. The applicant
finally complained of a violation of Article 5 § 5 of the
Convention because he had not been able to receive any compensation
for the allegedly unlawful detention.
- The
relevant parts of Article 5 read as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- The
Government submitted that the matter of extradition to Belarus was
covered by the Constitution of Ukraine, the CIS Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters
1993, the Code of Criminal Procedure and Resolution no. 16 of the
Plenary Supreme Court of 8 October 2004 on certain issues relating to
the application of legislation governing the procedure and length of
detention (arrest) of persons awaiting extradition. The relevant
provisions of these texts were clear, understandable, foreseeable and
accessible to the person concerned. Moreover, according to the
Government, the applicant could have challenged his arrest in court.
The Government further argued that at the material time the applicant
had not acquired refugee status because the relevant decision of the
State Migration Committee had been challenged by the GPO in court.
The Government finally noted that since the applicant’s arrest
and detention were lawful, he did not have a right to any
compensation.
-
The applicant submitted that his detention from 18 July 2007 until
7 April 2008, and from 25 April 2008 until 8 May 2008 (which,
according to the applicant, was the date when the State Migration
Committee rejected the GPO’s objection to the decision of 7
April 2008) was in violation of Article 5 § 1 (f) of the
Convention (Soldatenko v. Ukraine, cited above, and Novik
v. Ukraine, no. 48068/06, 18
December 2008). Moreover, his detention from 7 April 2008 until 25
April 2008, and from 8 May 2008 until 28 November 2008 could not
have been, from the applicant’s standpoint, “with a view”
to his extradition because during those periods the decision granting
him refugee status had not been suspended and domestic law prohibited
the removal of refugees from the territory of Ukraine. Consequently,
his detention had not pursued any of the aims listed in Article 5 §
1 of the Convention and had thus been contrary to that Article.
- The
parties further submitted arguments similar to those made in the
cases of Soldatenko v. Ukraine (cited above, §§
104-07 and 116-20) and Svetlorusov v. Ukraine (cited above, §§
43-46 and 52-56).
- The
Court has previously found violations of Article 5 §§ 1, 4
and 5 of the Convention in cases raising issues similar to those
in the present case (see Soldatenko v. Ukraine, cited above,
§§ 109-14 and 125-27, and Svetlorusov v. Ukraine,
cited above, §§ 47-49, 57-59 and 66-70). These findings
were primarily based on the lack of sufficient legal basis for the
applicants’ detention pending extradition proceedings and of a
procedure through which the lawfulness of that detention could be
examined by a court. The Court also found that Ukrainian law did not
afford the applicant an enforceable right to compensation, as
required by Article 5 § 5 of the Convention.
- Having
examined all the materials submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in respect of any of
the detention in the present case. As for the applicant’s
complaint related to specific periods of his detention after he had
been granted refugee status on 7 April 2008, the Court notes, as the
applicant claims and the Government do not contest, that domestic law
provides a certain protection from expulsion of those with refugee
status. Further, the Government have not explained how the
applicant’s continued detention was compatible with that
status, in particular after his refugee status had been finally
confirmed. However, even assuming that during those periods the
applicant was detained “with a view to” his extradition
on the ground that General Prosecutor’s Office still intended
to extradite the applicant, the finding that there was no adequate
legal basis for the applicant’s extradition detention covers
the whole of the period, and it is not necessary for the Court to
consider separately the period subsequent to the grant of refugee
status.
There
has accordingly been a violation of Article 5 §§ 1, 4 and 5
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage. He argued that his detention for one and a half years had
caused him severe physical and mental suffering.
- The
Government were of the opinion that there was no causal link between
the alleged violations and the non-pecuniary damage alleged by the
applicant.
- The
Court considers that the applicant suffered non-pecuniary damage on
account of his unlawful detention, damage which cannot be compensated
by the mere finding of a violation of his Convention rights. Having
regard to the circumstances of the case and ruling on an equitable
basis, as required by Article 41, it awards him EUR 3,500 under this
head.
B. Costs and expenses
- The applicant did not claim any costs and expenses
incurred before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning Article 5 of
the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds that there has been a violation of Article
5 § 5 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Ukrainian hryvnias at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
