BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KOKTYSH v. UKRAINE
(Application
no. 43707/07)
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 Koktysh 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,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, 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. 43707/07) 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 Igor Gennadievich
Koktysh (“the applicant”), on 8 October 2007.
- The
applicant, who had been granted legal aid, was represented by Ms A.
Mukanova, a Kazakh lawyer. 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, the outcome of
which was likely to be the death penalty. He further alleged that his
detention pending extradition had been unlawful. The applicant lastly
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. Questions were put under
Articles 2 and 3 (risk on extradition to Belarus), 3 and 13
(conditions of detention and transport), 6 (risk of unfair trial in
Belarus if the applicant were extradited) and 5 (compatibility of the
detention with the provision, and related procedural issues) of the
Convention. 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, who was born in 1980, is a Belarusian youth activist and
musician. He is currently detained in the Pre-Trial Detention Centre
no. 15 (hereinafter, “the SIZO”) in Simferopol
(Сімферопольський
слідчий ізолятор),
Ukraine.
A. Background to the case and the extradition proceedings
- In
2001 the applicant and R. were charged with the murder (under Article
139 § 2 of the Belarusian Criminal Code) and robbery of M.
According to the above Article, the death penalty is foreseen, inter
alia, as a sanction for murder.
- On
7 December 2001 the Brestskiy Regional Court of Belarus acquitted the
applicant and R. In particular, the court emphasised that during
their interrogations the applicant and R. had been subjected to
physical and psychological pressure and had been forced to confess,
and therefore their confessions during the pre-trial investigation
could not be taken into consideration.
- On
1 February 2002 the Supreme Court of Belarus upheld this decision.
- On
18 May 2002 these decisions were quashed by the Presidium of the
Supreme Court of Belarus under the extraordinary review procedure
upon an application (“protest”) lodged by a prosecutor,
and the criminal proceedings were resumed.
- In
June 2002 the applicant moved to Ukraine, where he was registered by
the Zhytomyr passport service. He travelled several times to Poland
and married in 2003. Therefore, according to the applicant, he has
not been hiding from justice.
- On
28 June 2002 the Brestskiy Regional Court stayed the criminal
proceedings since the applicant’s whereabouts were unknown.
- On
9 July 2002 the Brestskiy Regional Prosecutor decided to search for
the applicant.
- On
an unspecified date an international search warrant for the applicant
was issued.
- On
25 June 2007 the applicant was arrested in Sevastopol, Ukraine.
The applicant stated that during his arrest the policemen had fired
several shots in order to intimidate him and that he had been
subjected to physical and psychological pressure.
- On
27 June 2007 the Balaklava District Court of Sevastopol ordered the
applicant’s detention for forty days with a view to his
extradition to Belarus.
- On
9 July 2007 the General Prosecutor’s Office of Belarus
requested the General Prosecutor’s Office of Ukraine
(hereinafter, “the GPO”) to extradite the applicant. In
its request the General Prosecutor’s Office of Belarus
indicated that “Koktysh I.G. would be tried only for the crimes
he was extradited for, and he would not be sentenced to the death
penalty”.
17. On 3 August 2007
the Balaklava Local Court decided that the applicant should remain in
detention pending extradition.
- On
10 October 2007, under Rule 39 of the Rules of Court, the President
of the Court’s Fifth Section indicated to the Government of
Ukraine that the applicant should not be extradited to Belarus.
- On
15 October 2007 the General Prosecutor’s Office of Belarus
informed the GPO that in the event of the applicant’s
extradition he would not be tortured, ill-treated or discriminated
against and would be given a fair trial. If necessary, he would be
provided with medical assistance and treatment.
- On
19 May 2008 the Balaklava District Court informed the applicant that
his request for release could not be considered as the current
legislation did not foresee the possibility of challenging detention
pending extradition.
- On
3 June and 7 July 2009 the Balaklava District Court rejected the
applicant’s further requests for release since the law in force
did not foresee the possibility of replacing his detention pending
extradition by another non-custodial preventive measure.
B. Conditions of the applicant’s detention as presented by
the applicant
- From
26 June to 5 July 2007 the applicant was detained in the Sevastopol
Temporary Detention Centre in cell no. 1 (Севастопольський
ізолятор тимчасового
утримання)
(hereinafter, “the ITT”).
He submitted that in
his cell, which measured 4 x 8 metres, around 20 persons had been
detained, while it had been equipped with only two sleeping places.
There were no sheets, pillows or blankets but only a couple of dirty
mattresses. The cell was very dirty, without ventilation or proper
lighting, and infested with different insects. Nearly all of the
detainees smoked and this caused the applicant intense suffering
since he has bronchial asthma. The ITT did not contain a shower and
the detainees could not go for a walk. The applicant stated that the
daily food had been limited to a piece of bread, a plate of
poor-quality soup and water. The applicant was not provided with any
medical assistance in spite of suffering from asthma. On 2-5 August
2007 the applicant was detained in cell no. 2 with similar conditions
of detention.
23. From 6 July 2007 to
date the applicant has been detained in the SIZO. The applicant
submitted that during his transportation from the ITT to the SIZO he
had been placed in a special van together with 12 other people while
there had been space available for only 6. The temperature in the van
reached 600C
and there was neither drinking water nor ventilation.
24. In the SIZO,
according to the applicant, he is detained in a 2 x 4 metre cell
together with 9 other detainees. The cell has no ventilation or
sufficient lighting and all of the detainees smoke apart from the
applicant. The detainees can shower only once a week. The applicant
stated that the medical assistance he received in the SIZO was
inadequate.
C. Conditions of the applicant’s detention as presented by
the Government
1. The ITT
25. On 25 June 2007 the
applicant arrived at the ITT. He was questioned about his state of
health by the officer on duty but the applicant did not complain
about his health problems. During his stay in the ITT (25 June-5 July
2007 and 2-5 August 2007) the applicant did not complain about his
health problems either.
26. From 26 June 2007
until 5 July 2007 the applicant was detained in cell no. 1. The cell
measured 19.3 sq. m. At the material time from 16 to 21 persons were
detained there.
27. From 2 August 2007
until 5 August 2007 the applicant was detained in cell no. 2, which
measured 17.4 sq. m. 11 other persons were detained at that time
together with the applicant.
28. Every cell was
equipped with a WC and a wash-basin. The detainees were provided with
bed sheets and were served hot food three times a day. The cells are
regularly cleaned and disinfected. The detainees take a hot shower at
the week-end or during the week if they so wish.
29. The ITT has a
ventilation system which functions non-stop. The detainees also have
a daily one-hour walk in two specially equipped yards.
30. The cells are
equipped with two electric light-bulbs and the detainees also have
access to daylight.
2. The SIZO
- During
the applicant’s stay in the SIZO, since 5 July 2007, he has
been detained in three different cells (nos. 57, 60 and 68), which
measure between 12.4 sq. m and 13.2 sq. m. Together with him, from 4
to 9 persons have been detained during different periods of time.
- The
cells are equipped with the necessary number of sleeping places,
sufficient electric and natural light, separated WCs, wash basins,
tables and chairs. There is ventilation and the conditions of the
applicant’s detention have complied with the sanitary
standards. The applicant has been able to take a shower once a week.
- On
the day of his arrival the applicant was examined in the SIZO
hospital wing and diagnosed with asthma. During his stay in the SIZO
the applicant has been further examined and treated on numerous
occasions.
3. Conditions of transportation
- On
5 July the applicant was transported from the ITT to the SIZO and on
2 August 2007 he was returned to the ITT. On 5 August 2007 he was
again taken to the SIZO.
- Specially
equipped vehicles and railway carriages were used for the
transportation. Every vehicle can carry up to 22 persons and every
railway carriage up to 80. The special police forces in charge of the
transportation of prisoners transported the applicant in compliance
with the requirements of the national legislation.
II. RELEVANT LAW AND PRACTICE
A. Relevant international and domestic law and practice
concerning extradition
- The
relevant international and domestic law and practice in respect of
the applicant’s extradition are summarised in the 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) judgments.
B. Relevant domestic law concerning conditions of detention and
transportation
Pre-Trial Detention Act 1993 (“the Act”)
- Under
Article 11, detainees must be provided with everyday conditions that
meet sanitary and hygiene requirements. The cell area for one person
may not be less than 2.5 sq. m.
C. Relevant international materials concerning the situation of
human rights in Belarus
1. Resolution 1606 (2008) of the Parliamentary Assembly of the
Council of Europe on abuse of the criminal justice system in Belarus
“... 2. Such abuses take different forms,
including:
2.4. the continued use of the death penalty and the
particularly cruel, secretive method of execution by gunshot, without
informing the condemned persons themselves or their families until
the last moment. Belarus is the last country on the European
continent that still implements the death penalty. The existence of
the death penalty excludes the extradition to Belarus of any person
accused of a capital offence by member states of the Council of
Europe...”
2. Resolution 1671 (2009) of the Parliamentary Assembly of the
Council of Europe on the situation in Belarus
“...17. The Assembly regrets that capital
executions can still be carried out in Belarus, despite the reduction
of the categories of crimes for which they can be inflicted, a
decrease in the number of death sentences handed down in such cases
and the fact that no executions have been carried out since October
2008 according to official statements. The Assembly recalls that, in
the current Constitution, the death penalty is considered as a
transitional measure and that no legal impediment prevents either the
President or the Parliament from introducing a moratorium on
executions...”
3. UN Human Rights Council: Report of the Special Rapporteur on
the Situation of Human Rights in Belarus, 15 January 2007, A/HRC/4/16
“...The Special Rapporteur regrets that the
Government of Belarus, in 2006 as in 2004 and 2005, has not responded
favourably to his request to visit the country and has in general not
cooperated with him in the fulfilment of his mandate...
...13. Since his last report, the Special Rapporteur has
remained concerned that Belarus is the last country in Europe to
apply the death penalty. The situation in the country is still
characterized by harsh conditions of pre-trial detention, the
practice of torture and other inhuman treatment, and excessive use of
force by the police...”
4. UN General Assembly, Situation of human rights in Belarus :
resolution / adopted by the General Assembly, 20 March
2008, A/RES/62/169
“...The situation of human rights in Belarus in
2007 continued to significantly deteriorate, as documented in the
reports of the Office for Democratic Institutions and Human Rights of
the Organization for Security and Cooperation in Europe and the
report of the Special Rapporteur on the situation of human rights in
Belarus, which found that systematic violations of human rights
continue to take place in Belarus...
...1. [The Assembly] expresses deep concern:
(a) About the continued use of the criminal
justice system to silence political opposition and human rights
defenders, including through arbitrary detention, lack of due process
and closed political trials of leading opposition figures and human
rights defenders;
(b) About the failure of the Government of
Belarus to cooperate fully with all the mechanisms of the Human
Rights Council, in particular with the Special Rapporteurs on the
situation of human rights in Belarus, while noting the serious
concern relating to the continued and systematic violations of human
rights in Belarus...”
5. The Country Report on Human Rights Practices by the
US Department of State
- The
Country Report on Human Rights Practices of the US Department of
State (hereafter “the Reports”) for 2008, released on
25 February 2009, noted with respect to Belarus:
“The government’s human
rights record remained very poor as government authorities continued
to commit frequent serious abuses...
...Prison
conditions remained extremely poor, and reports of abuse of prisoners
and detainees continued. Arbitrary arrests, detentions, and
imprisonment of citizens for political reasons, criticizing
officials, or for participating in demonstrations also continued...
c. Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
The law prohibits such practices;
however, the Belarusian Committee for State Security (BKGB), the
Special Purpose Detachment riot police (OMON), and other special
forces continued to beat detainees and demonstrators...
...Police also
beat individuals during arrests and in detention for organizing or
participating in demonstrations or other opposition activities...
...On September
2, 2008, the International Federation of Human Rights (FIDH) in
cooperation with the domestic human rights NGO "Vyasna"
released a joint report, Conditions of Detention in Belarus, based on
interviews with more than 30 persons. The report noted "substantial
evidence" of the use of torture and mistreatment of suspects
during criminal and administrative investigations...
e. Denial of Fair Public Trial
The constitution provides for an independent judiciary;
however, the government did not respect judicial independence in
practice. Corruption, inefficiency, and political interference were
prevalent in the judiciary.
There was evidence that prosecutors and
courts convicted individuals on false and politically motivated
charges, and that executive and local authorities dictated the
outcomes of trials...”
6. Amnesty International Report on Human Rights 2009
“...Death penalty
...According to
media reports, four people were executed during the year...
...In December,
Belarus abstained on a UN General Assembly resolution calling for a
worldwide moratorium on executions...”
D. Relevant international and domestic materials concerning
conditions of detention and transportation
1. Recommendation Rec(2006)2 of the Committee of Ministers to
member states on the European Prison Rules
- The relevant extracts from the European Prison Rules
read as follows:
“4. Prison conditions that infringe prisoners’
human rights are not justified by lack of resources.
...
10.1 The European Prison Rules apply to persons who have
been remanded in custody by a judicial authority or who have been
deprived of their liberty following conviction.
...
18.1 The accommodation provided for prisoners, and in
particular all sleeping accommodation, shall respect human dignity
and, as far as possible, privacy, and meet the requirements of health
and hygiene, due regard being paid to climatic conditions and
especially to floor space, cubic content of air, lighting, heating
and ventilation.
18.2 In all buildings where prisoners are required to
live, work or congregate:
a. the windows shall be large enough to enable
the prisoners to read or work by natural light in normal
conditions and shall allow the entrance of fresh air except where
there is an adequate air conditioning system;
b. artificial light shall satisfy recognised
technical standards; and
...
18.3 Specific minimum requirements in respect of the
matters referred to in paragraphs 1 and 2 shall be set in national
law.
18.4 National law shall provide mechanisms for ensuring
that these minimum requirements are not breached by the overcrowding
of prisons.
...
19.3 Prisoners shall have ready access to sanitary
facilities that are hygienic and respect privacy.
19.4 Adequate facilities shall be provided so that every
prisoner may have a bath or shower, at a temperature suitable to the
climate, if possible daily but at least twice a week (or more
frequently if necessary) in the interest of general hygiene.
...
21. Every prisoner shall be provided with a separate bed
and separate and appropriate bedding, which shall be kept in good
order and changed often enough to ensure its cleanliness.
22.1 Prisoners shall be provided with a nutritious diet
that takes into account their age, health, physical condition,
religion, culture and the nature of their work.
22.2 The requirements of a nutritious diet, including
its minimum energy and protein content, shall be prescribed in
national law.
22.3 Food shall be prepared and served hygienically.
22.4 There shall be three meals a day with reasonable
intervals between them.
...
27.1 Every prisoner shall be provided with the
opportunity of at least one hour of exercise every day in the open
air, if the weather permits.
...
32.2 The transport of prisoners in conveyances with
inadequate ventilation or light, or which would subject them in any
way to unnecessary physical hardship or indignity, shall be
prohibited.”
2. European Committee for the Prevention of Torture and Inhuman
and Degrading Treatment and Punishment (“the CPT”)
40. Relevant
extracts from the reports of the Committee for the Prevention of
Torture following the Committee’s visits to Ukraine in 1998 –
2002 can be found in the judgment in the case of
Yakovenko v. Ukraine,
(no. 15825/06, §§ 56-61).
3. The Ukrainian Parliament Commissioner for Human Rights
- On
14 January 2004 the Ukrainian Parliament Commissioner for Human
Rights, after her visit to the penitentiary institutions of the
Autonomous Republic of Crimea (hereinafter, “the ARC”),
in her address to the members of the Verkhovna Rada of the ARC,
published on the Ukrainian Parliament Commissioner’s Internet
site, mentioned the overcrowding in the Simferopol SIZO, lack of
daylight in the cells, the absence of outside walks and insufficient
nutrition. In the majority of the ITTs visited by her, the detainees
were provided with food only once a day. In the Sevastopol ITT there
were 206 persons detained while there were only 82 places.
- On
11 August 2008 the press service of the Ukrainian Parliament
Commissioner for Human Rights published a press release on the
Commissioner’s further visit to the penitentiary institutions
of the ARC. The Sevastopol ITT was described as the worst. The cells
were dirty, without sufficient daylight and ventilation, and outside
walks were not regular. The detainees were not provided with
mattresses, covers or bed linen. The cells were overcrowded and the
detainees slept in turns. The conditions of transportation between
the Sevastopol ITT and the Simferopol SIZO were unbearable. In
particular, on 9 June 2008, 34 detainees were taken to the Sevastopol
ITT but after spending 6 hours locked in the vehicle were sent back
to the Simferopol SIZO because of overcrowding in the ITT. The trip
lasted 14 hours and the detainees were practically not allowed to use
the toilet and were not provided with water or food.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 6 OF THE
CONVENTION IN RESPECT OF THE APPLICANT’S EXTRADITION TO BELARUS
- The
applicant complained that if extradited to Belarus he could be
subjected to capital punishment contrary to Article 2 of the
Convention. He further complained under Article 3 of the Convention
that there was a risk of his being subjected to torture and inhuman
and degrading treatment by the Belarusian law-enforcement
authorities. In particular, the applicant complained that the
prospect of possible capital punishment caused him intense moral
suffering. The applicant also complained under Article 6 of the
Convention that if extradited to Belarus he would face an unfair
trial.
The
invoked Articles, in so far as relevant, read as follows:
Article 2
“Everyone’s right to life shall be protected
by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a
crime for which this penalty is provided by law ....”
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 6
“ In the determination of his civil rights
and obligations or 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 ...”
A. Admissibility
- The
Government noted that as there had been no decision to extradite the
applicant he could not claim to be a victim of the alleged
violations. The Government further indicated that no decision on
extradition would be taken until this Court took further decision
concerning the application of interim measures or decided on the
merits of the applicant’s complaint.
- The
applicant submitted that, although there had been no formal decision
on his extradition, his prolonged detention could not be explained by
any other reason than by an intention to extradite him. Therefore,
even in the absence of any formal decision taken by the Ukrainian
authorities, he could still be regarded as a victim of the alleged
violations.
- The
Court notes that the applicant was arrested in June 2007 on the basis
of an international warrant. Subsequently, the Prosecutor General’s
Office of Belarus requested the applicant’s extradition. The
applicant’s detention pending extradition was authorised by the
Balaklava Local Court on 3 August
2007, without setting a time-limit for that detention and in
circumstances under which domestic law does not impose a time-limit.
In the absence of any other domestic decision authorising the
applicant’s continuing detention, which is still continuing two
years and nearly five months after it began, the Court is of the
opinion that the applicant’s detention is still “pending
extradition”, even though no decision on extradition has been
adopted. The Court would note that its indication under Rule 39 of
the Rules of Court related to the applicant’s extradition and
not to his detention. The Court is of the opinion that the applicant
is still under a threat of extradition and has not lost his victim
status.
- The
Court notes that the applicant’s 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
1. The parties’ submissions
(a) The Government
- The
Government argued that the application of Rule 39 of the Rules of
Court had prevented the GPO from taking any decision on the
applicant’s extradition and thus from assessing the potential
risks the applicant would face in Belarus. Therefore, in the absence
of any decision, the Court was not in a position to decide whether
there had been any violation of the applicant’s rights, since
the State’s actions had so far been of a “preparatory”
nature and did not indicate their “official” position.
- The
Government further pointed out that the Prosecutor General of Belarus
had provided sufficient assurances against any treatment contrary to
Articles 2 and 3 of the Convention and against an unfair trial in the
applicant’s criminal case. The Government stated that the
applicant’s allegations about his possible ill-treatment were
unsubstantiated since he had been wanted because of the criminal case
pending against him and not because of his involvement in opposition
activities such as the foundation of a youth organisation or a rock
music group. The Government further indicated that there was no
evidence in support of the applicant’s allegations that these
activities had been regarded as subversive or had been banned.
- The
Government lastly submitted that although in the past the Court had
not excluded that an issue might exceptionally be raised under
Article 6 of the Convention by an extradition decision in
circumstances where the fugitive had suffered or risked suffering a
flagrant denial of a fair trial in the requesting country, the facts
of the present case did not disclose such a risk. In particular,
there were no grounds to question the reasonableness and lawfulness
of the decision of the Supreme Court of Belarus of 18 May 2002 and
the applicant’s statements about the risk of an unfair trial
were explained by his unwillingness to stand trial. The Government
further referred to the provisions of the Code of Criminal Procedure
of Belarus on the presumption of innocence and indicated that this
provision was a sufficient guarantee against an unfair trial in the
applicant’s criminal case.
(b) The applicant
- The
applicant believed that the application of Rule 39 of the Rules of
Court did not prevent the Government from taking decisions within
their jurisdiction but had been aimed at stopping the execution of
such decisions. The applicant further referred to the Soldatenko
v. Ukraine case (cited above) and indicated that the General
Prosecutor’s Office of Belarus was not empowered to give
diplomatic assurances and, moreover, that the Government of Ukraine
were not in a position to review compliance by the Government of
Belarus with the assurances provided. In particular, the Prosecutor
General of Belarus could not sufficiently guarantee that the death
penalty would not be imposed in the applicant’s case since it
was the court alone which decided on the punishment and the
prosecutor being a party to the proceedings could not influence it.
- Furthermore,
the Republic of Belarus had failed to cooperate with international
organisations on different levels, did not submit regular reports
under the International Covenant on Civil and Political Rights and
the Convention against Torture, and ignored recommendations of the
relevant UN Committees. Moreover, in 2005-2007 on a number of
occasions the Belarusian authorities had refused entry to the country
to a number of representatives of the relevant international
organisations; among others, the Rapporteur of the Committee on Legal
Affairs and Human Rights of the Parliamentary Assembly of the Council
of Europe and the UN Special Rapporteur. The applicant further
pointed out that the reliability of the information provided by the
Belarusian authorities was very low and that the Government of
Ukraine should have demonstrated the special means at their disposal
by which they were intending to obtain reliable information about the
implementation of the assurances provided.
- The
applicant believed that in the event of extradition he would run a
real risk of being ill-treated and tortured in order to extort his
confession. In particular, the applicant stated that he had already
been ill-treated by the police during the pre-trial investigation
into his criminal case in 2001. Moreover, significant evidence
collected by the international bodies confirmed that the practice of
torture and ill-treatment in order to extract a confession or to
intimidate political opponents and activists was widespread in
Belarus.
2. The Court’s assessment
(a) The relevant principles
- The Court observes at the outset that the Contracting
States have the right, as a matter of well-established international
law and subject to their treaty obligations, including the
Convention, to control the entry, residence and expulsion of aliens.
However, the Court has not in earlier cases excluded the possibility
that a Contracting State’s responsibility might be engaged
under Article 2 of the Convention or Article 1 of Protocol No. 6
where an alien is deported to a country where he or she is seriously
at risk of being executed, as a result of the imposition of the death
penalty or otherwise (see, Soering v. the United Kingdom, 7
July 1989, Series A no. 161). The Court also notes that there
had to be a “near-certainty” of loss of life to make
expulsion an “intentional deprivation of life” prohibited
by Article 2 (see Dougoz v. Greece (dec.), no. 40907/98,
8 February 2000).
- In
Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV), the
Grand Chamber of the Court noted that the territories encompassed by
the member States of the Council of Europe had become a zone free of
capital punishment and that it could be said that capital punishment
in peacetime, having regard, inter alia, to the fact that all
member States had signed Protocol No. 6 and almost all had ratified
it, had come to be regarded as an unacceptable form of punishment
which was no longer permissible under Article 2 of the Convention
(ibid., § 163; for a survey on the Council of Europe’s
stance regarding capital punishment, see Öcalan, §§
58 and 59). The Court, however, abstained from reaching any firm
conclusion as to whether Article 2 of the Convention could be
considered to have been amended so as to prohibit the death penalty
in all circumstances (ibid., § 165) but concluded that it
would be contrary to the Convention, even if Article 2 were to be
construed as still permitting the death penalty, to implement a death
sentence following an unfair trial, as an arbitrary deprivation of
life was prohibited (Öcalan v. Turkey [GC], no. 46221/99,
§ 166, ECHR 2005 IV). The Court also found that to
impose a death sentence on a person after an unfair trial would
generate, in circumstances where there existed a real possibility
that the sentence would be enforced, a significant degree of human
anguish and fear, bringing the treatment within the scope of Article
3 of the Convention (ibid., §§ 168 169).
- Consequently,
an issue may arise under Articles 2 and 3 of the Convention if a
Contracting State deports an alien who has suffered or risks
suffering a flagrant denial of a fair trial in the receiving State,
the outcome of which was or is likely to be the death penalty (see
Bader and Kanbor v. Sweden, no. 13284/04, § 42, ECHR
2005 XI).
- Furthermore, the expulsion of an alien by a
Contracting State may give rise to an issue under Article 3, and
hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the
person in question, if deported, would face a real risk of being
subjected to treatment contrary to Article 3 in the receiving
country. In these circumstances, Article 3 implies an obligation not
to deport the person in question to that country (see, among other
authorities, Saadi v. Italy [GC], no. 37201/06,
§§ 124-125, ECHR 2008-...). The establishment of such
responsibility inevitably involves an assessment of conditions in the
receiving country against the standards of Article 3 of the
Convention. Nonetheless, there is no question of adjudicating on or
establishing the responsibility of the receiving country, whether
under general international law, under the Convention or otherwise.
In so far as any liability under the Convention is or may be
incurred, it is liability incurred by the Contracting State which
deports or, as in the present case, extradites an individual, by
reason of its having taken action which has as a direct consequence
the exposure of that individual to proscribed ill-treatment (see
Soering v. the United Kingdom, 7 July 1989, §§ 89-91,
Series A no. 161, and Garabayev v. Russia, no. 38411/02,
§ 73, 7 June 2007, ECHR 2007 VII (extracts)).
- In
determining whether it has been shown that the applicant runs a real
risk, if deported or extradited, of suffering treatment proscribed by
Article 3, the Court will assess the issue in the light of all the
material placed before it, or, if necessary, material obtained
proprio motu. In cases such as the present the Court must
examine the foreseeable consequences of sending the applicant to the
receiving country, bearing in mind the general situation there and
his personal circumstances (see Vilvarajah and Others v. the
United Kingdom, 30 October 1991, § 108 in fine,
Series A no. 215). To that end, as regards the general
situation in a particular country, the Court has often attached
importance to the information contained in recent reports from
independent international human-rights-protection associations such
as Amnesty International, or governmental sources, including the US
State Department (see, for example, Chahal v. the United Kingdom,
15 November 1996, §§ 99-100, Reports 1996 V;
Müslim v. Turkey, no.o53566/99, § 67,
26 April 2005; Said v. the Netherlands, no. 2345/02,
§ 54, 5 July 2005; Al Moayad v. Germany
(dec.), no.o35865/03, §§ 65-66, 20 February
2007; and Saadi v. Italy [GC], cited above, §§ 143-146).
- Furthermore,
even if diplomatic assurances have been given, the Court is not
absolved from the obligation to examine whether such assurances
provided, in their practical application, a sufficient guarantee that
the applicant would be protected against the risk of treatment
prohibited by the Convention (see Chahal, cited above, §
105, and Saadi v. Italy [GC], cited above, § 148).
(b) Application of the above principles to
the present case
- Referring
to its findings above, the Court reiterates that, given the Ukrainian
court’s decision to detain the applicant pending his
extradition, his lengthy detention and the refusals to release him,
and in the absence of any formal refusal to extradite the applicant,
he can still be regarded at present as running a risk of extradition
in view of a criminal case pending against him in Belarus.
- The
Court notes that in 2001 the applicant was charged with murder and
robbery but acquitted by the courts at two instances. In less than
four months these decisions were quashed under the extraordinary
review procedure by the Presidium of the Supreme Court of Belarus and
the case was remitted for fresh consideration. Without pre-judging
the merits of the applicant’s complaint under Article 6 of the
Convention, the Court notes that in a number of cases a similar
procedure has been found not to be in compliance with the guarantees
of a fair trial (see, for example, concerning civil proceedings,
Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999 VII).
At present, the criminal proceedings against the applicant are
pending anew and one of the charges against him carries the death
penalty as a possible punishment.
- The
Court cannot speculate on the possible outcome of the applicant’s
criminal case. However, the mere possibility of the imposition of
capital punishment together with the prospect of an unfair trial,
given the quashing of a final decision in the applicant’s case,
is sufficient in the Court’s view to conclude that such
situation generates for the applicant a sufficient anguish and mental
suffering to fall within the ambit of Article 3 of the Convention.
- The
Court further notes that despite the assurances provided by the
Belarusian authorities, the international human rights reports show
serious problems as regards the international cooperation of the
Belarusian authorities in the field of human rights and particularly
with respect to the abolition of the death penalty and the Ukrainian
Government did not specify how in view of these difficulties they
intended to monitor the implementation of the provided assurances.
- The
Court also notes that both reports of the international and
nongovernmental bodies refer to violations of human rights in Belarus
and, in particular, to ill-treatment and torture. Although the
reference to a general situation concerning human rights observance
in a particular country cannot on its own serve a basis for refusal
of extradition, there is an evidence in the present case, confirmed
by the findings of the Belarusian courts, that the applicant has been
already ill-treated by the Belarusian authorities. The Government did
not show that the situation in respect to the applicant had changed
to the extent which enables any possibility of ill-treatment in the
future. Therefore, the Court cannot agree with the Government that
the assurances given in the present case would suffice to guarantee
against the serious risk of ill-treatment in the event of the
applicant’s extradition (see Soldatenko v. Ukraine,
cited above, §§ 73-74).
- There
would be accordingly a violation of Article 3 of the Convention in
the event of the applicant’s extradition to Belarus.
- The
Court finds that it is not necessary in the circumstances of the case
to consider separately the applicant’s complaints under
Articles 2 and 6 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 5 AND 13 OF THE
CONVENTION IN RESPECT OF THE APPLICANT’S DETENTION PENDING
EXTRADITION
- The
applicant complained that his arrest and detention in Ukraine were
contrary to Article 5 of the Convention since his criminal
prosecution in Belarus was unlawful. Moreover, the applicant’s
detention in Ukraine was not regulated by any law and he could not
challenge it. The applicant further complained under Article 13 of
the Convention about the absence of effective remedies in this
respect.
- The
Court is of the opinion that these complaints should be considered
under Article 5 §§ 1 (f), 4 and 5 of the Convention, which
are the appropriate provisions, the relevant parts of which 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
- In
their observations of 7 November 2008 the Government submitted that
the applicant had failed to exhaust effective domestic remedies as he
had failed to challenge the decisions on his detention before the
higher courts. Moreover, the applicant had never lodged a request for
re-examination of the grounds of his detention. The Government stated
that if the domestic courts had found that the applicant’s
detention was unlawful or that the grounds for his detention had
ceased to exist they would have decided to release him. In support of
their statements the Government submitted a copy of the decision of 5
May 2008 of the Kakhovskiy Local Court, by which S., who had been
detained pending his extradition to Turkmenistan, was released upon
an undertaking not to abscond.
- The
applicant believed that he had not had any effective procedure by
which he could have challenged his detention pending extradition.
- The
Court notes that after the receipt of the Government’s
observations the domestic courts on two occasions (see paragraph 21
above) had expressly denied any possibility for the applicant to be
released while the decision on his extradition was still pending.
Therefore, in spite of the copy of a decision submitted by the
Government, the Court is not convinced that this remedy could be
considered an effective one. The Court therefore dismisses the
Government’s objection.
- 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 “Minsk Convention”), 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
instruments were clear, understandable, foreseeable and accessible to
the person concerned. They further noted that under the Minsk
Convention, a Contracting State had to recognise official documents
issued by another Contracting State. Therefore, the Ukrainian
Government could not call into question the official documents issued
by the relevant Belorussian authorities in the applicant’s
case. The Government maintained that by detaining the applicant, the
Ukrainian authorities had acted in accordance with their
international obligations under the Minsk Convention and that his
detention was for the purpose of extradition. Moreover, according to
the Government, the applicant could have challenged his arrest before
a court. The Government lastly noted that since the applicant’s
arrest and detention were lawful, he did not have a right to any
compensation.
- The
applicant referred to the Court’s finding in the cases of
Svetlorusov v. Ukraine and Soldatenko v. Ukraine (cited
above) and indicated that on numerous occasions he had requested the
courts to release him but to no avail.
- 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,
§§ 109-114 and 125-127, and Svetlorusov v. Ukraine,
cited above, §§ 47-49, 57-59 and 66-70). Those findings
were primarily based on the lack of legal provisions both for the
applicants’ detention pending extradition and for regular
review of the lawfulness of such detention. 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 the present case.
- There
has accordingly been a violation of Article 5 §§ 1, 4 and 5
of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 13 OF THE
CONVENTION IN RESPECT OF THE CIRCUMSTANCES OF THE APPLICANT’S
ARREST AND CONDITIONS OF DETENTION AND TRANSPORTATION
- The
applicant complained under Articles 2 and 3 of the Convention that he
had been subjected to physical and psychological pressure during his
arrest, and that the conditions of detention in the Sevastopol
Temporary Detention Centre, in the SIZO and during his transportation
had been inhuman and degrading. The applicant further complained
under Article 13 of the Convention about the absence of effective
remedies in this connection.
- The
Court finds that in the circumstances of the case it is more
appropriate to consider the applicant’s complaints under
Articles 3 and 13 of the Convention since there is no prima facie
evidence that the applicant’s life has been seriously
endangered.
- These
Articles, 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 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.”
A. Admissibility
1. Alleged ill-treatment at the time of the applicant’s
arrest
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The Court notes that in the present
case there is no evidence that the applicant has ever raised before
the relevant domestic authorities the issue of the use of force or
his ill-treatment at the moment of his arrest (see, mutatis
mutandis, Aliev v. Ukraine no. 2 (dec.), no. 33617/02, 14 October
2008). In particular, one avenue open to the applicant would have
been to complain to a prosecutor, and in the Naumenko case
(Naumenko v. Ukraine, no. 42023/98, § 136,
10 February 2004) such a remedy was found to be
effective. The prosecutor is bound to consider the applicant’s
complaint and to adopt a relevant decision to institute or not the
criminal proceedings. The applicant can further appeal against the
refusal to the court, which has a power to examine all necessary
evidence and to order further investigation if necessary.
- The
Court finds, therefore, that these complaints must be rejected for
non exhaustion of domestic remedies
pursuant to Article 35 § 1 of the Convention.
2. Conditions of detention
- The
Government accepted that the applicant had complained to a prosecutor
about “improper medical conditions” in the SIZO but
submitted that he had failed to raise before the relevant domestic
authorities his other complaints (general conditions of his
detention, absence of medical treatment in the ITT and the conditions
of his transportation). In particular, the applicant could have
raised his complaints before the courts or a prosecutor. Moreover,
the applicant had failed to raise his complaints before the
administration of the relevant detention facilities.
- The
applicant believed that the Ukrainian legislation did not provide for
any effective remedies concerning complaints about conditions of
detention, lack of medical assistance and conditions of
transportation of detainees. In particular, there were no remedies
capable of providing redress and changing the applicant’s
situation. He also submitted that the administration of the detention
facilities had been aware of his health problems.
- The
Court reiterates that, according to its established case-law, the
purpose of the domestic remedies rule contained in Article 35 §
1 of the Convention is to afford the Contracting States the
opportunity to prevent or put right the violations alleged before
they are submitted to the Court. However, the only remedies to be
exhausted are those which are effective. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one, available in theory and in practice at
the relevant time (see, inter alia, Vernillo v. France, 20
February 1991, § 27, Series A no. 198, and Dalia v.
France, 19 February 1998, § 38, Reports 1998-I).
Once this burden of proof has been satisfied, it falls to the
applicant to establish that the remedy advanced by the Government has
in fact been exercised, or is for some reason inadequate and
ineffective in the particular circumstances of the case, or that
there exist special circumstances absolving him or her from this
requirement (see Dankevich v. Ukraine, no. 40679/98, §
107, 29 April 2003).
- In
the present case the Government proposed recourse to a court and a
prosecutor as effective remedies against the conditions of detention
and transportation which were allegedly inhuman and degrading. The
Court notes that on a number of occasions it has already dismissed
similar objections by the Government, referring, amongst other
things, to the structural nature of matters complained of (see Melnik
v. Ukraine, no. 72286/01, § 69-71, 28 March 2006). It
can see no reason to hold otherwise in the present case.
- Concerning
the applicant’s failure to raise his complaints before the
administration of the relevant detention facilities, which the
Government contended would have been an effective remedy, the Court
notes that the applicant’s complaints about the conditions of
his detention in the ITT and the SIZO, as well as about the
conditions of his transportation, concern problems that have been
experienced by the Ukrainian penitentiary system for quite a long
time. In particular, since 2000, both international and domestic
human rights institutions have repeatedly indicated that the
conditions of detention in the Sevastopol ITT and the Simferopol SIZO
did not comply with the human rights standards. In such circumstances
and given that the Government have failed to provide any detailed
explanation as to how the applicant’s complaint to the Heads of
the ITT and the SIZO would have improved his situation, the Court
considers that this remedy would have been inadequate and ineffective
in the case
This
part of the applicant’s complaints cannot be declared
inadmissible for non-exhaustion of domestic remedies. Nor can it be
rejected as being manifestly ill-founded or declared inadmissible on
any other grounds. It should therefore be declared admissible.
B. Merits
1. Article 3 of the Convention
(a) General principles
- The
Court observes that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3 of the Convention. The assessment of this minimum
level of severity is relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the sex, age and state of health
of the victim (see, among other authorities, Ireland v. the
United Kingdom, 18 January 1978, § 162, Series A no. 25).
Furthermore, in considering whether treatment is “degrading”
within the meaning of Article 3, the Court will have regard to
whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it has
adversely affected his or her personality in a manner
incompatible with Article 3. Even the absence of such a purpose
cannot conclusively rule out a finding of a violation of this
provision (see Peers v. Greece, no. 28524/95, §§
67-68 and 74, ECHR 2001-III, and Valašinas
v. Lithuania, no. 44558/98, § 101,
ECHR 2001-VIII).
- The Court has consistently stressed that the suffering
and humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Measures depriving a person of
his liberty may often involve such an element. In accordance with
this provision the State must ensure that a person is detained in
conditions which are compatible with respect for his human dignity,
that the manner and method of the execution of the measure do not
subject him to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention and that, given
the practical demands of imprisonment, his health and well-being are
adequately secured (see Kalashnikov v. Russia, no. 47095/99,
§ 95, ECHR 2002 VI).
- The
Court also reiterates that allegations of ill-treatment must be
supported by appropriate evidence. In assessing evidence, the Court
has generally applied the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Salman v. Turkey [GC],
no. 21986/93, § 100, ECHR 2000 VII).
(b) Application in the present case
i. Material conditions of the applicant’s
detention in the ITT
- The
Government explained the overcrowding in the cells by the fact that
at that time the courts of Sevastopol had been considering an
extensive number of criminal cases and all persons detained in the
ITT had been taking part in their respective criminal proceedings in
the courts. The Government further noted that as for other conditions
of the applicant’s detention, they did not reach the minimum
threshold of severity required by Article 3 of the Convention, as the
applicant had been detained in the ITT for the short periods of 10
and 4 days, respectively. The applicant’s situation was not
different from the situation of any other person suffering from
limitations related to the deprivation of liberty.
- The
applicant disagreed and pointed out that the conditions of detention
in the ITT were found to be appalling by numerous international and
domestic observers. He referred to the findings of the CPT and the
Ukrainian Commissioner for Human Rights.
- The
Court notes that it has already found a violation in respect of the
conditions of detention in the Sevastopol ITT experienced by the
applicant in 2003-2006 in the case of Yakovenko v. Ukraine (no.
15825/06, 25 October 2007). In the present case the applicant
stayed in the ITT for 10 and 4 days, respectively, in July-August
2007. Although the applicant and the Government submitted two
contradictory descriptions of the material conditions of detention in
the ITT, the applicant’s version is corroborated by the
subsequent findings of the Ukrainian Commissioner for Human Rights.
The Commissioner visited the ITT one year after the applicant had
been detained there, and the press release issued after her visit
refers to the same conditions of detention as those complained of by
the applicant. Furthermore, the Government have failed to adduce any
evidence in support of their description of the conditions of
detention in the ITT. They also refrained from commenting on the
applicant’s allegations that he had suffered from his
co-detainees’ constant smoking.
- The
Court further notes that the problem of overcrowding in the
Sevastopol ITT was indicated by the CPT as early as in 2000. It was
further confirmed by the findings of this Court in the Yakovenko
case, and, according to the press release issued by the Ukrainian
Commissioner for Human Rights, the overcrowding remained a problem in
mid-2008. The Government have also failed to comment on the
applicant’s allegations that the detainees had to sleep in
turns and, given the size of the cell and the number of persons
detained, the Court has no reason to doubt the applicant’s
submissions. In such circumstances the lack of sleeping places makes
the effect of overcrowding in the applicant’s case even more
harmful.
- Therefore,
the Court finds that the overall conditions of the applicant’s
detention in the ITT, even during relatively short periods of time,
amount to inhuman and degrading treatment and are in violation of
Article 3 of the Convention.
ii. Material conditions of the applicant’s
detention in the SIZO
- The
Government submitted that the conditions of the applicant’s
detention in the SIZO were adequate and did not reach the threshold
required by Article 3 of the Convention. In support of their
statements, the Government submitted a document, certified by the
SIZO Governor, which contained a description of the cells in which
the applicant had been detained. In particular, the document says
that in every cell there was a 120x40 centimetre window, with natural
and artificial lighting and ventilation.
- The
applicant contested these submissions. He repeated his previous
complaints that he had been able to wash only once a week and
sometimes even more rarely. The applicant further indicated that the
Government had provided only general information about the conditions
of detention but had not shown that the ventilation had been
functioning and that the lighting had been sufficient.
- The
Court notes that the Government’s observations did not provide
much substantiation in support of their statement that the
ventilation and lighting in the applicant’s cells were
sufficient. Moreover, the Government failed to comment on the
applicant’s allegation that all of the detainees had constantly
smoked, which had caused the applicant additional suffering as he had
bronchial asthma. Given that, in the case of allegations about
inadequate conditions of detention, the Government are in a better
position to obtain evidence in support of their views (see Yakovenko
v. Ukraine, cited above, § 106), the Court is of the opinion
that in the circumstances of the present case the Government have
failed to substantiate their statements.
- In
respect of the applicant’s allegations about overcrowding in
the Simferopol SIZO, the Court notes that, according to the
information submitted by the Government, at any given time there was
from 1.47 to 3.25 sq. m of space per inmate in the applicant’s
cell. The Court recalls that the CPT has set 7 sq.m. per prisoner as
an approximate, desirable guideline for a detention cell (see the 2nd
General Report - CPT/Inf (92) 3, § 43).
- The
Court refers to its findings in the Kalashnikov v. Russia case
(no. 47095/99, ECHR 2002 VI...) and finds that there has been a
violation in respect of the conditions of the applicant’s
detention in the Simferopol SIZO.
iii. Medical assistance to the applicant
- The
Government stated that the applicant had not complained about his
health problems while staying in the ITT and had been provided with
adequate treatment in the SIZO.
- The
applicant disagreed and submitted that all necessary medication had
been provided to him by his wife.
- The
Court notes that the applicant’s submissions in this respect
are limited to a general statement that he is suffering from
bronchial asthma. He did not submit any particular details as to the
severity and frequency of the symptoms. It follows from the medical
file submitted by the Government that the applicant was regularly
checked in the SIZO and provided with some treatment, which the Court
is not in a position to question, given the absence of any indication
that the applicant’s health significantly deteriorated either
while staying in the ITT or in the SIZO. In such circumstances, the
Court finds that there has been no violation of Article 3 of the
Convention in respect of the applicant’s medical treatment
during his detention.
iv. Conditions of transportation
- For
the Government, in the absence of any complaints on the national
level about the conditions of transportation from and to the SIZO,
the burden of proof in respect of these complaints lay with the
applicant. The Government further stated that the conditions of the
applicant’s transportation complied with the national law
requirements and did not reach the level of severity required for
Article 3 of the Convention to apply.
- The
applicant reiterated his previous submissions and referred to the
findings of the CPT in support of his complaints.
- The
Court reiterates its position that it is for the respondent
Government to substantiate their allegations as in the particular
circumstances of a given case they are in a better position to
furnish all necessary evidence (see paragraph 98 above). The Court
notes that the Government’s submissions in this respect are
quite vague and refer only to the number of places available in the
vehicles or railway carriages without proving any further details
about the available space per person and other conditions of
transportation (available facilities, lighting, ventilation, etc.).
- The
Court notes that the applicant was transported on three occasions a
distance of 70 kilometres. The Court further notes that the
applicant’s allegations are confirmed by the findings of the
CPT, the Ukrainian Commissioner for Human Rights and by the Court’s
own findings in the Yakovenko case (cited above).
- Therefore,
the Court finds that there has been a violation of Article 3 of
the Convention in respect of the conditions of the applicant’s
transportation.
2. Article 13 of the Convention
- The
Government referred to their observations on the admissibility of the
applicant’s complaints under Article 3 of the Convention.
- The Court points out that Article 13 of the
Convention guarantees the availability at the national level of a
remedy to enforce the substance of Convention rights and freedoms in
whatever form they might happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the provision of a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief
(see Kudła v. Poland [GC], no. 30210/96, §
157, ECHR 2000 XI).
- The scope of the obligation under Article 13
varies depending on the nature of the applicant’s complaint
under the Convention. Nevertheless, the remedy required by Article 13
must be effective in practice as well as in law.
- Taking
into account its earlier considerations as to the exhaustion of
domestic remedies (paragraphs 85-87 above) as well as its previous
case law on the matter (see Melnik, cited above, § 115,
and Dvoynykh v. Ukraine, no. 72277/01, § 72, 12
October 2006), the Court finds that there was no effective or
accessible remedy in respect of the applicant’s complaints
about the conditions of his detention. There has therefore been
a violation of Article 13 of the Convention.
V. 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 15,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that there was no causal link between the
alleged violations and the non-pecuniary damage claimed and,
therefore, this claim was to be rejected.
- The
Court considers that the applicant suffered non-pecuniary damage
which cannot be compensated for 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 7,000 under this head.
B. Costs and expenses
- The
applicant did not claim any costs and expenses; the Court, therefore,
makes no award in this respect.
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 applicant’s complaint under
Article 3 of the Convention about the alleged ill-treatment at the
time of the applicant’s arrest inadmissible and the remainder
of the application admissible;
- Holds that there would be a violation of Article
3 of the Convention in the event of the applicant’s extradition
to Belarus;
- Holds that there is no need to examine the
complaints concerning the applicant’s extradition under
Articles 2 and 6 of the Convention;
- Holds that there has been a violation of Article
3 of the Convention in respect of the material conditions of the
applicant’s detention in the ITT and the SIZO;
- Holds that there has been no violation of
Article 3 of the Convention in respect of the applicant’s
medical treatment in detention;
- Holds that there has been a violation of Article
3 of the Convention in respect of the conditions of the applicant’s
transportation;
7. 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;
10. Holds that there has been a violation of Article 13 of the
Convention in respect of the applicant’s complaints under
Article 3 of the Convention about his conditions of detention;
- 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 7,000 (seven thousands 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
