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FIFTH
SECTION
CASE OF
MOLOTCHKO v. UKRAINE
(Application
no. 12275/10)
JUDGMENT
STRASBOURG
26 April
2012
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 Molotchko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 3 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12275/10) 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 German national, Mr Pavel Molotchko (“the
applicant”), on 2 March 2010.
- The
applicant was represented by Mr S. J. Schleicher, a lawyer practising
in Berlin. The Ukrainian Government (“the Government”)
were represented by their Agent, Ms V. Lutkovska, of the Ministry of
Justice.
- On
3 March 2010 the President of the Section decided to indicate to the
Government, under Rule 39 of the Rules of Court, that the applicant
should not be extradited to Belarus. On 5 January 2011 the
President decided to discontinue the application of Rule 39 (see
paragraphs 64-68 below).
- On
1 June 2010 the Chamber decided to give notice of the
application to the Government. After consulting
the parties, the Chamber decided, pursuant to Rule 54 § 3
and Rule 72 §§ 1 and 2, that no hearing was
required in the case and that it was not necessary to relinquish
jurisdiction in favour of the Grand Chamber. The Chamber also decided
that it was not necessary to adopt any investigative measure to
establish the facts of the case (Rule A1, Annex to the Rules of
Court).
- In
accordance with Article 36 § 1 of the Convention, the
German Government were invited to exercise their right to intervene
in the proceedings, but they declined to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 in Belarus. In 1991 he left Belarus for
Germany. He obtained refugee status in that country on the ground
that he was of Jewish origin and, because of this, risked persecution
in Belarus. In 2004 the applicant acquired German nationality. The
applicant pursued business activities in both countries.
A. Criminal proceedings against the applicant in
Belarus
- In
January 2007 the Belarus authorities instituted criminal proceedings
against the applicant and several others, accusing them of organised
crime, abuse of power, smuggling and bribery. According to the
Belarus investigators, the applicant and his co-accused committed
these crimes in 1999 and 2001 when they were engaged in business
activities in that State. In particular, they allegedly bribed
high-ranking officers of the Belarus Customs Service and Committee
for State Security (“the KGB”) to allow them to import
goods into Belarus without paying high customs duty. Subsequently,
criminal proceedings were brought against a number of former and
acting State officials, with the result that some of them were
dismissed from office and some were convicted. The investigations
were carried out jointly by the General Prosecutor’s Office and
the Ministry of the Interior and were led by investigator B. attached
to the General Prosecutor’s Office.
- On
11 October 2007 an arrest warrant was issued against the applicant.
It was later revoked, as the applicant was cooperating with the
investigators and was living permanently in Germany. In particular,
on a number of occasions in 2008 and 2009 the applicant was
questioned by investigators at the Belarus consulate in Berlin, and
provided witness statements which, according to the applicant, were
used in proceedings against others, including several former
high-ranking KGB officers and the former Minister of the Interior.
The applicant submits that during one of the meetings with the
investigators he was questioned in his lawyer’s absence.
- On
22 February 2010 the General Prosecutor of Belarus issued an arrest
warrant against the applicant on the grounds that he had committed
serious crimes and was living permanently outside Belarus. In the
arrest warrant it was stated that the applicant was to be placed in
the KGB Detention Centre.
- According
to the applicant, one of his lawyers contacted investigator B.,
asking about the reasons for the decision to arrest the applicant. In
a telephone conversation between the lawyer and the investigator, the
latter stated that a decision to bring the applicant to Belarus had
been taken at a high political level in order to coerce him to change
or retract the statements he had made during his questioning, with a
view to torpedoing the proceedings against the senior officials
accused of involvement in smuggling and bribery.
- On
3 March 2010 the KGB arrested the investigator on charges of
abuse of power. According to the applicant, the investigator was
dealing mainly with high-profile corruption cases involving the KGB
and the police staff. Her arrest was one of the consequences of a
“power struggle” between the KGB, the Ministry of the
Interior and the Prosecution Service, the former having the strongest
position in the political system of Belarus. Several other
investigators dealing with the applicant’s case were also
arrested by the KGB.
- The
investigator is being tried in Belarus. The court hearings are being
held in camera as the case concerns State secrets.
- In
2010 some extracts from the video recording of the applicant’s
questioning in 2008-09 were broadcast by the Russian television
company NTV, in a programme which concerned alleged corruption
of the highest officials in Belarus, including the President.
B. The applicant’s arrest and detention in
Ukraine
- On
22 February 2010 the applicant went to Ukraine on business.
- On
the same day the General Prosecutor of Belarus requested the General
Prosecutor’s Office of Ukraine (“the GPU”) to
arrest the applicant pursuant to Article 61 of the Convention on
Legal Assistance and Legal Relations in Civil, Family and Criminal
Cases (“the Minsk Convention”, see paragraph 89 below).
- On
23 February 2010 the applicant was arrested by the Ukrainian State
Security Service (“the SBU”).
- According
to the applicant, he was taken to the SBU the same day, where he was
denied access to a lawyer and forced by unknown SBU officers to
sign a waiver of his right to legal assistance. He was questioned by
the officers for about six hours.
- On
24 February 2010 the SBU requested the Babushkinskyy District Court,
Dnipropetrovsk (“the Babushkinskyy Court”) to remand the
applicant in custody for forty days, pending submission of an
extradition request by the Belarus authorities.
- On
the same day the court, relying on Article 29 of the Constitution of
Ukraine, Article 61 of the Minsk Convention, and Articles 148-150,
155, 165-1 and 165-2 of the Code of Criminal Procedure (see paragraph
93 below), ordered that the applicant remain in detention until
5 March 2010. The court held that it was necessary to obtain
further information concerning the SBU’s request.
- The
court hearing on 24 February 2010 was attended by a prosecutor,
SBU officers and the applicant. During the hearing the applicant’s
request for a lawyer was refused, as the court considered a lawyer’s
participation unnecessary.
- On
an unspecified date the applicant hired Ms M., a lawyer practising in
Kyiv, to act as his legal representative. Subsequently, the applicant
also hired Mr S., a lawyer practising in Kiev.
- On
5 March 2010 the Babushkinskyy Court examined a new request
lodged by the SBU on 4 March 2010 for the applicant’s
continued detention pending a decision on the extradition request of
24 February 2010 (see paragraph 50 below). The applicant
and one of his lawyers were present at the court hearing and asked
the court to refuse the SBU’s request. The lawyer also
complained that the applicant’s arrest had not been in
accordance with the relevant regulations and that his right to legal
assistance had been violated.
- The
court held that it was necessary to obtain information concerning the
administrative proceedings instituted by one of the applicant’s
lawyers against the GPU (see paragraph 69 below) and extended the
applicant’s detention until 10 March 2010.
- The
court further held that the applicant’s arrest had been lawful.
It found that the arrest had been in accordance with Articles 56 §§ 1
and 2, 57 and 58 of the Minsk Convention and had been
based on a request and accompanying documents submitted by the
General Prosecutor’s Office of Belarus. The court also noted
that the applicant had expressly waived his right to a lawyer.
- On
10 March 2010 the Babushkinskyy Court, having examined the
SBU’s request of 4 March 2010 in the applicant’s and
one of his lawyers’ presence, ordered the applicant’s
detention pending his extradition. The court found that the
extradition request was in compliance with Article 58 of the Minsk
Convention and that there were no grounds for refusing extradition
under Article 57 of the Minsk Convention.
- One
of the applicant’s lawyers appealed, stating in particular that
the request for the applicant’s extradition had not been made
in accordance with the relevant regulations. The lawyer also
challenged the lawfulness of the applicant’s possible
extradition to Belarus.
- On
15 March 2010 the Dnipropetrovsk Court of Appeal upheld the decision
of 10 March 2010, finding that the applicant’s detention
was based on an extradition request submitted in accordance with the
Minsk Convention. Having noted that the applicant was a German
national and resident and was wanted by the Belarus authorities for
serious crimes, the Court of Appeal concluded that if at liberty the
applicant might evade investigation and trial. The court declined
jurisdiction to deal with the submissions that the applicant’s
extradition should be refused.
- The
applicant states that he was not present at the hearing before the
Court of Appeal.
- On
an unspecified date one of the applicant’s lawyers lodged with
the Supreme Court a request for review of the decisions of 10 and
15 March 2010 on the basis of exceptional circumstances. There
is no information about its outcome.
- On
21 June 2010 the Dnipropetrovsk Krasnogvardiyskyy District
Prosecutor lodged a request with the Krasnogvardiyskyy District
Court, Dnipropetrovsk (“the Krasnogvardiyskyy Court”)
seeking the applicant’s placement under extradition arrest
pending a decision on his extradition. The prosecutor relied on
Article 60 of the Minsk Convention and Article 463 of the
Code of Criminal Procedure (see paragraphs 91 and 93 below).
He also submitted that, having regard to the preliminary results of
an inquiry concerning the extradition request, there were no
circumstances preventing extradition under Article 57 of the Minsk
Convention. In particular, the applicant was not wanted for political
or war crimes; the prosecution was not time-barred; the charges had
not been previously determined in Ukraine; the applicant was not a
Ukrainian national, and had been refused refugee status in Ukraine;
the applicant confirmed that he was in good health and had full
command of the Russian language.
- On
23 June 2010 the Krasnogvardiyskyy Court
examined the prosecutor’s request in the applicant’s and
his lawyers’ presence and found that there were grounds for the
applicant to remain in detention.
- The
court observed that administrative arrest, introduced into the
Ukrainian legal system with changes to the Code of Criminal Procedure
on 17 June 2010, had actually been applied in the applicant’s
case by the Babushkinskyy Court on 10 March 2010. On that ground
it refused to decide on the question whether the applicant should be
placed under extradition arrest. Relying on Article 463 § 8
of the Code of Criminal Procedure, the Krasnogvardiyskyy Court
proceeded to examine the grounds for the applicant’s continued
detention. It noted that the extradition request had been made in
accordance with Article 58 of the Minsk Convention; that there were
no grounds for refusing the applicant’s extradition pursuant to
Article 57 of the Minsk Convention; that both Ukrainian and Belarus
law envisaged imprisonment for over one year for the crimes for which
the applicant was wanted and the charges were not time-barred; that
the Belarus authorities had issued a warrant for the applicant’s
arrest in the framework of the criminal proceedings; that the
applicant did not have refugee status, nor did he enjoy immunity from
prosecution; and that the eighteen-month period for extradition
arrest had not expired. The court further noted that the parties did
not indicate any circumstances capable of serving as a basis for the
applicant’s release.
- On
30 June 2010 the Dnipropetrovsk Regional Court of Appeal quashed
the decision of 23 June 2010, holding that the
first-instance court had failed to decide on the prosecutor’s
request. The matter was remitted for fresh examination.
- On
13 July 2010 the Krasnogvardiyskyy Court, relying on the
same arguments as in its decision of 23 June 2010, decided to
place the applicant under extradition arrest pending a decision on
his extradition to Belarus.
- One
of the applicant’s lawyers appealed, alleging that the decision
of 13 July 2010 was unlawful, that there were no grounds for
placing the applicant under extradition arrest, that the prosecutor’s
request should not have been examined before the Supreme Court had
dealt with the lawyer’s appeal against the decisions of 10 and
15 March 2010, and that the applicant should have been released from
detention within seventy-two hours of the entry into force of the
extradition-related amendments to the Code of Criminal Procedure on
17 June 2010.
- The
lawyer also argued that the first-instance court had failed to take
into account submissions that the applicant risked treatment contrary
to Article 3 of the Convention and that the extradition inquiry had
not been completed. The lawyer stated that the applicant had not been
duly informed of the Belarus authorities’ decision to arrest
him and that the decision was invalid on that ground.
- On
21 July 2010 the Dnipropetrovsk Regional Court of Appeal upheld
the decision of 13 July 2010, finding that the first-instance
court had duly examined all the relevant circumstances and complied
with the procedure envisaged by Article 463 of the Code of Criminal
Procedure. The Court of Appeal held that the questions of the
applicant’s responsibility for the crimes with which he was
charged in Belarus and the lawfulness of the procedural decisions
taken by the Belarus authorities fell outside the scope of the
review. It was also noted that the interim measure indicated by the
European Court of Human Rights had expired on 25 March 2010 and
that the applicant’s appeals to the Supreme Court and the
European Court of Human Rights did not prevent him from being placed
under extradition arrest.
- On
8 September 2010 the Krasnogvardiyskyy Prosecutor lodged a request
with the Krasnogvardiyskyy Court for the extension of the applicant’s
detention.
- On
an unspecified date the applicant and his lawyers lodged with the
same court requests for the applicant’s release. In particular,
it was suggested that the applicant could be released on guarantee by
the Union of Jewish Religious Communities and Organisations of the
Dnipropetrovsk Region. Because of his religious beliefs and state of
health the applicant required special kosher food and communication
with a representative of a religious organisation, which was
allegedly impossible in detention.
- On
29 September 2010 the Krasnogvardiyskyy Court allowed the
prosecutor’s request, relying on the same grounds as in its
decision of 13 July 2010. The court also refused the requests
for the applicant’s release.
- The
prosecutor’s further requests for the applicant’s
continued detention, lodged with the Krasnogvardiyskyy Court on
25 November 2010, 2 February and 18 April 2011, were
allowed by the court on 2 December 2010 and 15 February and
27 April 2011 respectively, for the same reasons as in its
previous decisions. The Krasnogvardiyskyy Court also noted that the
applicant was not a Ukrainian national and was not seeking to acquire
that nationality. Relying on the preliminary results of the pending
extradition inquiry, the Krasnogvardiyskyy Court further noted the
applicant was not wanted by Belarus for political or war crimes; that
in Ukraine there was no judgment or decision terminating the
proceedings against the applicant on the charges in connection with
which the applicant’s extradition was requested; and that
Ukrainian law did not provide for the initiation of proceedings on
those charges solely on a victim’s complaint.
- The
applicant and his lawyers took part in the court proceedings and were
able to raise counter-arguments.
- The
applicant stated that he had appealed against the decision of
29 September 2010 and that the Dnipropetrovsk Regional Court of
Appeal had dismissed the appeal as unsubstantiated on 6 October
2010. The applicant did not provide a copy of the appeal or the
appeal decision.
- The
decision of 2 December 2010 was not challenged on appeal.
- One
of the applicant’s lawyers appealed against the decisions of
15 February and 27 April 2011. On 23 February 2011 the
Dnipropetrovsk Regional Court of Appeal, having heard the appeal in
the lawyer’s and the prosecutor’s presence, confirmed the
former decision, while on 11 May 2011 it quashed the decision of
27 April 2011 and remitted the matter to the first-instance
court for new consideration.
- In
its decision of 23 February 2011 the Court of Appeal noted that
at the beginning of the appeal hearing the applicant’s lawyer
had requested the court to summon the applicant to that hearing. The
court of appeal refused the request, stating that the right to be
summoned to appeal hearings was given to detainees convicted or
acquitted of a crime.
- Meanwhile,
another of the applicant’s lawyers submitted several requests
to the GPU seeking the applicant’s release from detention.
Several requests for assistance in this matter were submitted to the
German consulate in Kyiv.
- On
19 May 2011 the prosecutors ordered the applicant’s
release on bail. Pending a decision on his extradition request, the
applicant was allowed to travel within Ukraine, but not to leave the
country.
- After
the decision to refuse the request for the applicant’s
extradition was taken by the Ukrainian authorities (see paragraph 63
below), the restriction on his movements was lifted and he left
Ukraine for Germany.
C. The request for the applicant’s extradition
and the official inquiry concerning it
- On
24 February 2010 the General Prosecutor of Belarus sent a
request to the Ukrainian authorities seeking the applicant’s
extradition to Belarus in connection with the criminal proceedings
against him.
- The
extradition request contained the following assurances: that the
applicant would not be prosecuted for a crime committed prior to
extradition without the consent of the GPU; that he would not be
removed to a third country without the consent of the GPU; that he
would not be subjected to torture, inhuman or degrading treatment or
punishment; that he would be assured the right to a fair trial; that
if necessary he would be provided with adequate medical assistance;
that after the termination of the criminal proceedings or after
serving his sentence, if one was imposed, the applicant would be free
to leave Belarus; that the criminal prosecution of the applicant was
not related to his political views, race, religion or ethnic origin;
and that the death penalty was not envisaged for the crimes of which
he was accused.
- On
26 February 2010 the First Deputy Prosecutor General of Ukraine
acknowledged the receipt of the request for the applicant’s
extradition and requested the Belarus authorities to provide
additional assurances in respect of the applicant’s prosecution
and detention in Belarus.
- On
the same day the Ukrainian Migration Service informed the GPU that
the applicant had not requested refugee status in Ukraine.
- By
a letter of 1 March 2010, the Deputy General Prosecutor of
Belarus provided additional assurances that the staff of Ukraine’s
embassy or consulate in Belarus would be allowed to visit the
applicant in detention; that their meetings with the applicant would
not be monitored by the Belarus authorities; that they would be given
the opportunity to obtain information about the state of the
proceedings against the applicant and to be present at his trial; and
that they would be informed of the outcome of the proceedings.
- On
26 February 2010 the GPU requested the SBU and the Ministry
of Foreign Affairs of Ukraine to provide it with information
concerning the applicant’s travel from and to Belarus and
Ukraine and concerning his possible involvement in the political
opposition in Belarus and persecution by the Belarus authorities on
this ground.
- The
GPU also requested the German Consulate in Kyiv to provide
information concerning the applicant’s nationality and his
application for refugee status in Germany. On 4 March 2010 the
Consulate informed the GPU that the applicant was a German national
and that German nationals could not apply for refugee status in that
country.
- On
17 March 2010 the SBU replied that they had no information about
the applicant’s travel outside the territory of Ukraine or his
possible involvement in the political opposition in Belarus. A
similar reply was given by the Ministry of Foreign Affairs of Ukraine
on 23 March 2010.
- By
a letter of 9 March 2010, the GPU informed the Court that, given
the Court’s ruling under Rule 39 in the applicant’s case,
no decision on his extradition request would be taken before the
Court had decided on it.
- On
29 April 2010 the GPU informed one of the applicant’s
lawyers that a decision concerning the request for the applicant’s
extradition could not be taken because of the Court’s decision
to apply Rule 39 in the case. The GPU also noted that the decision
did not preclude the applicant’s detention and extradition
inquiry.
- On
17 June 2010 the GPU ordered the Dnipropetrovsk Regional
Prosecutor’s Office to complete, by 17 August 2010, an
inquiry concerning the request for the applicant’s extradition
in accordance with Article 465 of the Code of Criminal Procedure.
- Acting
on a request by the GPU of 2 July 2010, the Consul of Ukraine in
Belarus visited two detainees who had previously been extradited to
that country, and noted that the conditions of their detention were
satisfactory and that there were no complaints in that respect or
concerning unlawful methods of investigation, and that their defence
rights were observed. The Consul’s note was submitted to the
GPU on 29 July 2010.
- On
17 August 2010 the time allowed for the extradition inquiry was
extended by the GPU until 17 October 2010. There is no
information concerning subsequent actions taken by the authorities in
the framework of the inquiry.
- On
28 July 2011 the Deputy Prosecutor General of Ukraine issued a
decision refusing the request for the applicant’s extradition.
In particular, it was noted that according to the outcome of the
extradition inquiry there were no grounds preventing the applicant’s
extradition under the Minsk Convention. However, the Deputy
Prosecutor General further noted that:
“...
According to the conclusions of [the Organisation for
Security and Co-operation in Europe], the Council of Europe, the
European Union, and of a number of international organisations, the
human rights situation in Belarus has significantly worsened since
the December 2010 presidential election [in that country].
In these circumstances, it was not possible to exclude a
risk of violation of the rights of P. V. Molotchko, as guaranteed by
Articles 3 and 6 of [the Convention], in case of his extradition to
Belarus.
[The Convention] was binding for Ukraine, though Belarus
was not a party to that international treaty and there were no
effective mechanisms of control over respect for human rights in that
country. Therefore, Ukraine, as a State Party to [the Convention],
would bear the entire responsibility for any violation of the rights
of P. V. Molotchko on the territory of Belarus.
Accordingly, extradition of P. V. Molotchko [to Belarus]
would be contrary to Ukraine’s undertakings under the
international treaties on human rights [to which it is a party]. This
constitutes a ground for refusing extradition of a person under
Article 466 § 1 (5) of the Code of Criminal
Procedure.”
D. The applicant’s request under Rule 39 of the
Rules of Court
- On
2 March 2010 the applicant lodged with the Court a request for an
interim measure suspending his extradition to Belarus. On 3 March
2010 the President of the Section decided that Rule 39 should be
applied in the applicant’s case for a limited period and that
the applicant should not be extradited to Belarus until 25 March
2010. The application was granted priority on the same date (Rule
41). On 25 March 2010 the President decided to extend until further
notice the interim measure indicated in the case.
- By
a letter of 7 July 2010, the Government informed the Court that the
GPU would take a decision on the request for the applicant’s
extradition under the new regulations on extradition. However, they
assured that in any event the applicant would not be extradited,
given the interim measure indicated by the Court.
- On
28 October 2010 the Government requested the Court to lift the
interim measure in the light of the developments in the domestic law,
namely the introduction of the new regulations on extradition.
- On
the basis of the information provided by the Government and the
applicant’s comments in reply, on 5 January 2011 the
President decided to discontinue the application of Rule 39. In
particular, it was noted that the Government had given an assurance
that the applicant would have the opportunity to challenge an
extradition decision, if any, and that the lodging of a complaint
with the courts against such decision would suspend its execution.
- The
parties were informed that the decision lifting the interim measure
was taken on the understanding that the applicant would have the
opportunity to contact the Court with a Rule 39 request if the
extradition decision became final and enforceable. The Government
were invited to inform the relevant authorities of their
interpretation of the new legislation and to inform the Court of the
applicant’s removal at least three working days in advance.
E. Administrative proceedings against the GPU
- On
5 March 2010 one of the applicant’s lawyers lodged an
administrative claim against the GPU with the Kyiv Administrative
Court, challenging the lawfulness of the applicant’s possible
extradition to Belarus. She also requested the court to apply an
interim measure with a view to preventing the applicant’s
extradition.
- On
the same day the court, holding that the applicant’s
extradition might hinder the right to challenge it before the courts,
decided to apply the requested interim measure and ordered the GPU
not to extradite the applicant.
- On
12 March 2010 the same court decided to return the claim to the
lawyer, as she had not submitted documents authorising her to act on
behalf of the applicant. By a separate decision on the same day, the
court revoked its procedural ruling of 5 March 2010.
- Neither
the applicant nor the lawyer took part in the hearing on 12 March
2010. They learned of the decisions from the Government’s
submissions in the proceedings before the Court, a copy of which the
lawyer received on 26 March 2010.
- It
cannot be established if the decisions of 12 March 2010 were
challenged on appeal. No material was provided by the parties in this
respect.
F. The applicant’s request for refugee status in
Ukraine
- On
23 March 2010 the applicant requested the Ukrainian
Migration Service to grant him refugee status, alleging that he was a
victim of political persecution in Belarus because he was involved in
the organisation and financial support of the political opposition in
that country.
- On
23 April 2010 the request was refused. The parties did not
specify the reasons for that decision.
- The
applicant challenged the refusal before the courts.
- By
decisions of 31 August and 13 October 2010 the
administrative courts at two levels of jurisdiction upheld the
refusal. The courts noted that when the applicant had come to Ukraine
he had not had the intention of obtaining refugee status: he had
applied for it only after his arrest with a view to extradition; the
applicant was not involved in political or civic activities in
Belarus; the applicant did not prove that he had been active in the
political opposition in that country; before arriving in Ukraine the
applicant had been living in Germany, whose protection he had not
sought when he had learned of the criminal proceedings against him in
July 2008; the applicant was accused of serious crimes of a
non-political nature; the applicant had failed to substantiate the
alleged threat to his life and health in Belarus; the applicant’s
submissions in the latter respect were limited to general information
about the political situation in that country. The courts further
noted that the migration authorities had duly examined the
applicant’s written submissions and his statements made at
interview. The courts concluded that the applicant’s request
was a disguised attempt to evade criminal prosecution in Belarus.
- The
applicant did not appeal on points of law.
G. The conditions of the applicant’s detention in
Ukraine
- After
his arrest on 23 February 2010 the applicant was placed in the
SBU Isolation Unit (“the ITT”,
ізолятор
тимчасового
тримання).
- On
12 March 2010 the applicant was transferred to the
Dnipropetrovsk Temporary Detention Centre (“the SIZO”,
слідчий
ізолятор).
According to the applicant’s submissions of 19 March 2010,
in the SIZO his head was shaved against his will and he was placed in
a cell where suspects of serious crimes were detained; he did not get
enough food and drinking water; he was at risk of contracting
tuberculosis; and he did not receive parcels of food and medication
sent to him from outside the SIZO.
- In
later submissions the applicant also alleged that during the winter
period in 2010 and 2011 he had been escorted to the court hearings in
an unheated van.
- According
to the Government’s submissions of 30 July 2010, the
applicant’s head had not been shaved, but his hair had been cut
short. The applicant was provided with adequate food in the SIZO. The
applicant’s lawyers visited him in the SIZO on 15 March,
6 April, 5 and 21 May, 3 June, and 1 and 5 July 2010.
The lawyers brought the applicant food and personal hygiene products
which the SIZO authorities allowed him to keep. He did not request
any medication from the SIZO authorities.
- The
Government also submitted a statement written by the applicant on
20 July 2010, the relevant extracts from which read as follows:
“... I would like to comment on the questions put
to me ... I arrived in the SIZO on 12 March 2010 ... during
sanitary processing [in the SIZO] I requested the attendant to cut my
hair short (not to shave off the hair completely) so that it would
not be too hot ... I do not have any complaints about my health ...
signed personally, no physical or psychological influence or abuse
...”
- The
applicant maintained that he had given the statement at the request
of the SIZO authorities, and without obtaining his lawyer’s
advice, because he had been afraid that the authorities would punish
him if he refused. The applicant denied the statement and insisted
that his hair had been cut against his will.
H. The applicant’s questioning in Ukraine
concerning his criminal case
- On
4 March and 15 May 2010 the applicant was taken to one of the
SBU offices, where he was questioned by Belarus KGB officers, who
tried to coerce him into denying the statements he had made in
2008-09 and to make incriminating statements against the Belarus
investigators who had previously dealt with his case.
- On
30 November 2010 an investigator from the SBU, acting on a request of
the Deputy Prosecutor General of Belarus, tried to question the
applicant concerning his criminal case, in the presence of one of his
lawyers and several KGB officers. The applicant refused to answer any
questions, stating that the presence of KGB officers was contrary to
domestic and international law and that it made him feel under
political pressure.
- On
23 December 2010 the applicant complained to the GPU, alleging that
during the questioning the KGB officers had exerted psychological
pressure on him in order to extract incriminating statements aimed at
former Belarus investigators and to persuade him to pay compensation
to Belarus. By a letter of 28 January 2011, the GPU stated to
the applicant that these allegations were unfounded.
- The
applicant stated that the KGB had continued contacting him concerning
the criminal case, though he provided no details in that respect.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The CIS Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters 1993, amended by the
Protocol to that Convention of 28 March 1997 (“the
Minsk Convention”)
- The
Convention was ratified by the Ukrainian Parliament on 10 November
1994. It entered into force in respect of Ukraine on 14 April 1995
and in respect of Belarus on 19 May 1994. The relevant extracts from
the Convention provide as follows:
Article 56
Obligation of extradition
“1. The Contracting Parties shall ...
on each other’s request extradite persons who find themselves
on their territory, for criminal prosecution or to serve a sentence.
2. Extradition for criminal prosecution shall
extend to offences which are criminally punishable under the laws of
the requesting and requested Contracting Parties, and which entail at
least one year’s imprisonment or a heavier sentence...”
Article 57
Refusal to extradite
“1. No extradition shall take place if:
a) the person whose extradition is sought is a national
of the requested Contracting Party;
b) at the moment of receipt of the request [for
extradition] criminal prosecution may not be initiated or a sentence
may not be executed as time-barred or for other reasons envisaged by
the legislation of the requested Contracting Party;
c) on the territory of the requested Contracting Party
there has been an [enforceable] judgment or decision discontinuing
the proceedings against the person whose extradition is sought,
concerning the same crime;
d) the legislation of the requesting and requested
Contracting Parties envisages that criminal prosecution for [the
crimes of which the person is accused] may be initiated [only upon a
victim’s complaint].
2. Extradition may be refused if the crime in
connection with which it is sought was committed on the territory of
the requested Contracting Party.
3. In the event of refusal to extradite, the
requesting Contracting Party shall be informed of the reasons for the
refusal.”
Article 58
Request for extradition
“1. A request for extradition shall
include the following information:
(a) the title of the requesting and requested
authorities;
(b) a description of the factual
circumstances of the offence, the text of the law of the requesting
Contracting Party which criminalises the offence, and the punishment
sanctioned by that law;
(c) the [name] of the person to be
extradited, the year of birth, nationality, place of residence, and,
if possible, a description of his appearance, his photograph,
fingerprints and other personal information;
(d) information concerning the damage caused
by the offence.
2. A request for extradition for the
purpose of criminal prosecution shall be accompanied by a certified
copy of a detention order...”
Article 59
Additional information
“1. If a request for extradition does
not contain all the necessary data, the requested Contracting Party
may ask for additional information, for the submission of which it
shall set a time-limit not exceeding one month. This time-limit may
be extended for up to a month at the request of the requesting
Contracting Party...”
B. The Code of Criminal Procedure
- On
21 May 2010 the Parliament of Ukraine passed a law
introducing a new Chapter (No. 37) to the Code of Criminal Procedure
governing extradition procedures, including arrest and detention of
persons whose extradition is sought by a third State (law on the
introduction of changes to the Code of Criminal Procedure concerning
extradition “the Criminal Procedure (Extradition) Act”).
The law was officially published on 17 June 2010 and
entered into force on the same day. It did not contain transitional
provisions.
- The
relevant provisions of Chapter 37, which was amended on 2 June
2011, read as follows:
Article 450
Definitions
“...
Extradition inquiry [shall embrace] activities carried
out by bodies determined by law in order to establish and examine
circumstances which, as defined by an international treaty of Ukraine
or another of its legislative acts, are capable of preventing the
extradition of a person who has committed a crime.
Extradition arrest [shall mean] placing a person in
detention to ensure his or her extradition.
Provisional arrest [shall mean] placing a person who has
been arrested on suspicion of having committing a crime outside
Ukraine, in detention for the period determined by this Code or by an
international treaty of Ukraine until receipt of an extradition
request.
...”
Article 451
General conditions for extradition
“An extradition request shall be made if for at
least one of the crimes in connection with which the extradition is
being sought Ukrainian law envisages imprisonment for a maximum
period of not less than one year...
An extradition request from the competent authority of a
foreign State may be examined only if the conditions provided for in
paragraph one of this Article are met.
...”
Article 452
Central authorities concerning a person’s
extradition
“The General Prosecutor’s Office and the
Ministry of Justice shall be the central authorities concerning a
person’s extradition, unless otherwise envisaged by an
international treaty of Ukraine.
The General Prosecutor’s Office shall be the
central authority concerning extradition of the accused (suspected)
where the proceedings [in the foreign State] are at the stage of
pre-trial investigations.
...”
Article 461
Particularities of arrest of a person who has
committed a crime outside Ukraine
“Arrest on the territory of Ukraine of a person
who is wanted by a foreign State in connection with the commission of
a crime shall be carried out by a body of inquiry.
The body of inquiry that carries out the arrest shall
immediately inform the prosecutor who supervises the observance of
laws by that body. The notification of the prosecutor, accompanied by
the record of the arrest, shall contain detailed information on the
reasons for the arrest.
Upon receipt of the notification the prosecutor shall
check the legality of the arrest of the person who is wanted by the
competent authorities of foreign States, and shall immediately inform
the regional prosecutor.
Within seventy-two hours of the arrest, the regional
prosecutor’s office shall report the arrest to the central
authority, which shall inform the competent authority of the foreign
State within three days.
Every case of arrest of a foreign national who has
committed a crime outside Ukraine shall also be reported by the
regional prosecutor’s office to the Ministry of Foreign Affairs
of Ukraine.
The arrested person shall be released immediately if:
1) within seventy-two hours of the arrest he
or she has not been served with a reasoned decision of a court on the
application of provisional or extradition arrest;
2) it has been established that there are
circumstances under which the extradition may not be carried out.
The procedure of arrest of such persons and of
examination of complaints about their arrest shall be governed by
Article 106 of this Code, taking into account the particularities
envisaged by this Chapter.”
Article 463
Extradition arrest
“Upon receipt of an extradition request from the
competent authority of a foreign State, the prosecutor, on the
instruction (request) of the central authority, shall lodge a request
for the extradition arrest of the person with the court at the place
of the person’s detention.
The request [for the extradition arrest] shall be
accompanied by:
1) a copy of the extradition request from the competent
authority of the foreign State, certified by the central authority;
2) documents concerning the person’s nationality;
3) available materials from the extradition inquiry.
Materials submitted to the court shall be translated
into the official language or another language, as provided by an
international treaty of Ukraine.
On receipt of a request [for an extradition arrest], the
judge shall check the identity of the person concerned, shall invite
him or her to make a statement, shall check the extradition request
and the available materials from the extradition inquiry, shall hear
the opinion of the prosecutor and of other participants, and shall
deliver a decision:
1) ordering the extradition arrest;
2) refusing the extradition arrest if there are no
grounds for its application.
When considering a request [for extradition arrest], the
judge shall not examine the question of guilt and shall not review
the lawfulness of procedural decisions taken by the competent
authorities of the foreign State in the proceedings against the
person whose extradition is requested.
The judge’s decision may be appealed against to
the court of appeal by the prosecutor, the person placed under the
extradition arrest, or his or her defence counsel or legal
representative, within three days of the date of delivery of the
decision. The lodging of an appeal against the judge’s decision
shall not suspend its entry into force or its execution. A decision
of the court of appeal shall not be subject to [further] appeal.
Extradition arrest shall be applied until a decision on
the extradition of the person concerned and his actual surrender
(extradition), but shall not last more than eighteen months.
Within this period, and not less than once every two
months, the judge at the place of the person’s detention shall
check, upon the prosecutor’s request, if there are grounds for
further detention of the person or for his or her release.
Upon a complaint by the person placed under the
extradition arrest, or by his or her defence counsel or legal
representative, the judge at the place of the person’s
detention shall check, but not more often than once a month, if there
are grounds for the person’s release.
If the maximum period of extradition arrest, provided in
paragraph 7 of this article, has expired, and the question of the
person’s extradition and actual surrender has not been resolved
by the central authority, the person shall be released immediately.
The fact that the person has been released from
extradition arrest by the court does not preclude its repeated
application for the purpose of the person’s actual surrendering
to a foreign State in execution of a decision on extradition, unless
otherwise stipulated by an international treaty of Ukraine.
If the person has been released from detention by the
court, the regional prosecutor or his deputy, with the agreement of
the competent central authority, shall order the application of other
necessary measures to prevent the person from absconding and to
ensure he or she is surrendered later.
Such measures shall be sufficient to ensure that the
decision to extradite can be put into effect, and may, in particular,
include bail, restrictions on the person’s movement and control
over his or her place of residence. The application of bail and of
restrictions on the person’s movement shall be carried out in
accordance with the procedure envisaged by Articles 98-1, 151 and
154-1 of this Code, taking into account the particularities of this
Chapter.
The regional prosecutor or his deputy shall notify the
person concerned and his or her defence counsel or legal
representative of the order issued in respect of the person.
The regional prosecutor or his deputy may entrust the
body of inquiry with the execution of the order.”
Article 464
Termination of provisional or extradition arrest
“Provisional or extradition arrest shall be
terminated if:
1) the central authority has not received a request
for the person’s extradition within the time-limits provided
for by an international treaty of Ukraine;
2) the extradition inquiry reveals circumstances
which preclude the person’s extradition;
3) the competent authority of a foreign State has
refused to seek the person’s extradition;
4) the central authority decides to refuse the
person’s extradition.
The person’s release shall be [ordered] by the
regional prosecutor or his deputy on the instruction (request) of the
central authority; in the circumstances provided for in paragraph 2
of this Article it shall be carried out with the agreement of the
relevant central authority. A copy of the release decision shall be
sent to the head of the preliminary detention institution and to the
court which decided on the application of provisional or extradition
arrest.”
Article 465
Extradition inquiry
“The extradition inquiry concerning circumstances
capable of preventing the person’s extradition shall be carried
out by the central authority or, upon its instructions (request), by
the regional prosecutor’s office.
The extradition inquiry shall be [completed] within
thirty days. This period may be extended by the relevant central
authority.
Materials of the extradition inquiry together with the
conclusion [as to its outcome] shall be sent to the relevant central
authority.”
Article 466
Refusal of extradition
“A person’s extradition to a foreign State
shall be refused if:
1) on the day of the decision on extradition the
person ... is, according to Ukrainian laws, a Ukrainian national or a
stateless person permanently residing in Ukraine;
2) Ukrainian law does not provide the punishment of
imprisonment for the crime for which extradition is being sought;
3) the charges concerning the crimes for which
extradition is being sought are time-barred according to Ukrainian
law ...
4) the competent authority of the foreign State has
not provided, upon the central authority’s request, additional
materials or data, without which a decision on the extradition
request may not be taken;
5) the person’s extradition is incompatible
with Ukraine’s undertakings under its international treaties;
6) there are other circumstances envisaged by an
international treaty of Ukraine.
The person who has been granted refugee status may not
be extradited to a foreign State where his or her health, life, or
freedom is endangered for reasons of race, faith (religion),
ethnicity, nationality, membership of a particular social group, or
political opinion, unless otherwise provided by an international
treaty of Ukraine.
In the event of refusal of extradition on the grounds of
nationality, refugee status or other grounds that do not exclude [the
possibility of pursuing] proceedings in a [criminal] case, the
General Prosecutor’s Office of Ukraine instructs, at the
request of the competent authority of a foreign State, the pre-trial
investigation body to investigate the criminal case against that
person in accordance with the procedure prescribed by this Code.”
Article 467
Decision on an extradition request
“Having examined the materials of the extradition
inquiry, the central authority shall take a decision to extradite the
person or to refuse [his or her] extradition to the foreign State.
The decision shall be taken by the head of the central authority or
his or her deputy.
The central authority shall inform the competent
authority of the foreign State and the person concerned of its
decision.
If a decision to extradite the person is taken, that
person shall be given a copy of the decision. If the decision has not
been challenged before a court within seven days, actual surrendering
to the competent authorities of the foreign State shall be
organised.”
Article 467
Procedure for appeal against a decision to extradite
a person
“A decision to extradite a person may be appealed
against by the person concerned, his or her defence counsel or legal
representative to a local court at the place of the person’s
detention.
...
The appeal shall be examined in a single-judge formation
within ten days of the date of its receipt by the court. The hearing
shall be held in the presence of the prosecutor, the person
concerned, his or her defence counsel or legal representative, if the
latter participates in the proceedings.
When considering the appeal, the judge shall not examine
the question of guilt and shall not review the lawfulness of
procedural decisions taken by the competent authorities of the
foreign State in the proceedings against the person whose extradition
is requested.
Following the examination, the judge shall take a
reasoned decision:
1) rejecting the appeal;
2) allowing the appeal and quashing the decision to
extradite.
After the entry into force of the judge’s decision
quashing the decision to extradite, the person concerned shall be
immediately released from detention.
An appeal against the judge’s decision may be
lodged with a court of appeal by the prosecutor who participated in
the hearing before the court of first instance or by the person
concerned, his or her defence counsel or legal representative, within
seven days of the date of delivery of the impugned decision. The
lodging of an appeal against the judge’s decision shall suspend
its entry into force and its execution.”
C. Overview of the courts’ practice of the
application of extradition regulations, issued by the Kyiv Court of
Appeal on 1 September 2011
- The
overview is based on the analysis of a number of decisions taken
during the period from 17 June 2010 to 20 April 2011 by the
district courts in Kyiv and by the Kyiv Court of Appeal concerning
extradition matters, including detention pending extradition
proceedings. The relevant provisions of the overview read as follows:
“...
As follows
from the
regulations on
extradition, the
court dealing
with a request
for the
application of
extradition arrest
must check
whether there is
an extradition
request by the
competent authority
of the foreign
State and whether
there are
relevant documents
concerning the
person’s
nationality; [the
court must]
examine materials
of the
extradition inquiry
and verify if
there are
circumstances preventing
[the requested]
extradition (Articles
2, 3, 6, 10 and 11 of
the European
Convention and
additional protocols thereto [and]
Article 57 of
[the Minsk
Convention]).
...
It must
be emphasized
that for a full,
objective and
expeditious examination
of requests for
the application
of provisional or
extradition arrest,
the participation
of the person
in whose respect
the arrest is being applied and the prosecutor is necessary, because
[before adopting] a final decision [on the request] the judge [shall]
check the arrested person’s identity, invite him to make a
statement and hear the prosecutor. No cases were identified in which
the requests were examined in the absence of [those parties].
...”
D. Other relevant domestic law provisions pertinent to
the applicant’s complaints concerning his detention pending
extradition proceedings
- Other
relevant domestic law provisions pertinent to the case are summarised
and cited in the judgment of Soldatenko v. Ukraine,
no. 2440/07, §§ 21-25, 23 October 2008.
E. Regulations on Detention in Temporary Detention
Centres and Rules of Conduct of Detainees, approved by the State
Penitentiary Department on 20 September 2000 (Order No. 192)
- Pursuant
to Section 3.1.1 of the Regulations, detainees
must undergo sanitary treatment upon their arrival in a SIZO.
The details of such treatment are not specified. Section 2 of the
Rules of Conduct of Detainees provides that male detainees may choose
not to shave heads and to keep haircuts of a “short style”.
F. Regulations on Detention in SBU Isolation Units,
approved by the SBU on 26 July 2008 (Order No. 589)
- The
rules governing detention of people in ITTs within the SBU structure
provide for medical examination and sanitary treatment of all
detainees upon their arrival and subsequently at regular intervals.
The sanitary treatment includes washing of detainees and disinfection
of their clothing. A detainee’s hair may be cut off on the
instructions of the authority dealing with the criminal case and with
the consent of the detainee (sections 4.4 and 7.7).
G. Regulations on Detention in Police Isolation Units,
approved by the Ministry of the Interior on 2 December 2008 (Order
No. 638)
- According
to Section 9.3 of the Regulations, persons placed in ITTs within the
police structure must undergo complex sanitary treatment, which
includes, inter alia, cutting their hair short, provided that
the authority dealing with the relevant case agrees.
III. 2005 Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”)
- On
20 June 2007 the CPT published a report on its visit to Ukraine
from 9 to 21 October 2005, the relevant parts of which read as
follows (emphasis added by the CPT):
“...
3. Prisoners sentenced to life imprisonment
...
116. Further, an end should be put to certain practices
that are pointless in terms of security and perceived by
life-sentenced prisoners as humiliating, namely: i) indicating the
nature of the sentence on the new prison uniform for men and women
(on this point, Rule 20.2 of Recommendation Rec (2006) 2 of the
Committee of Ministers to Member States on the European Prison
Rules); ii) obliging men to have shaven heads; iii) obliging
prisoners to stand facing the wall whenever staff or visitors are
present.
The CPT recommends that the necessary measures be
taken in all penal establishments holding prisoners sentenced to life
imprisonment, in the light of the above remarks.
...”
IV. The Country Reports on Human Rights Practices of the
United States Department of State for 2009
- In
its Country Reports on Human Rights Practices for
2009, released on 11 March 2010, the Department of State
noted with respect to Ukraine:
“...
e. Denial of Fair Public Trial
The constitution and law provide for an independent
judiciary; however, in practice the judiciary remained subject to
political pressure, suffered from corruption and inefficiency, and
lacked public confidence.
... Judges also continued to complain about pressure
from high-ranking politicians seeking improper resolution of cases.
...
All courts, except for the Supreme Court, were funded
through the SJA, which was also responsible for staffing. The
Ministries of Justice and Education were responsible for training
judges. The judiciary’s lack of adequate staff and funds
contributed to inefficiency and corruption and increased its
dependence on the executive branch. On December 22, the
Constitutional Court ruled that the president’s right to
appoint and dismiss the head of the SJA is unconstitutional. The
court stated that because the SJA oversees a state body and is not a
cabinet-level agency the responsibility of appointing and dismissing
the head of the SJA falls to the prime minister with the concurrence
of the cabinet.
...
While the law provides for judicial independence, in
some cases it also gives the president considerable power over the
judiciary. The president has the authority, with the agreement of the
Ministry of Justice and the chair of the Supreme Court or of a
corresponding higher specialized court, to establish and abolish
courts of general jurisdiction. The president determines the number
of judges in the court system, appoints and removes chairpersons and
deputy chairpersons of courts, and establishes appellate commercial
and appellate administrative courts.
...”
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after communication of the case to the respondent
Government, the applicant submitted a copy of his letter to the
Ukrainian Ombudsman dated 11 November 2010 in support of his
argument that the Ukrainian authorities had tried to coerce him to
leave Ukraine for Belarus voluntarily. In the letter the applicant
alleged that while he was in the ITT his cell had been searched daily
and he had undergone body searches. During the searches masked
officers threw the applicant’s personal belongings and
bedclothes on to the floor, forced him to undress and to stand facing
the wall. The personal searches were humiliating and were accompanied
by blows.
- In
the Court’s view, the applicant’s allegations, although
relating to the conditions of his detention in Ukraine, do not
constitute an elaboration of his original complaints of ill-treatment
in the SIZO, which were lodged earlier and on which the parties have
commented. The Court considers, therefore, that it is not appropriate
to take these matters in the context of the present case (see,
mutatis mutandis, Piryanik v. Ukraine, no.
75788/01, § 20, 19 April 2005).
II. INITIAL COMPLAINTS CONCERNING THE APPLICANT’S
POSSIBLE EXTRADITION TO BELARUS
- The
applicant initially complained that if extradited to Belarus he would
face a real risk of being subjected to torture and inhuman or
degrading treatment by the Belarus authorities, intended to coerce
him into changing his previous statements in the criminal case. He
further alleged that no fair trial guarantees would be available to
him in that country. The applicant relied on Articles 3, 6 and
13 of the Convention.
- By
a letter dated 16 November 2011, one of the applicant’s
lawyers informed the Court of the applicant’s wish not to
pursue the above complaints in the light of the Ukrainian
authorities’ decision refusing the applicant’s
extradition to Belarus.
- The
Court reiterates that it may strike an application out of its list of
cases when its examination is no longer justified. In particular,
Article 37 of the Convention provides,
in so far as relevant, as follows:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application...
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- In
the present case, the applicant has clearly lost interest in pursuing
his complaints relating to the risk of his extradition to Belarus, as
that risk has ceased to exist. In these circumstances, the Court does
not consider that respect for human rights as defined in the
Convention and the Protocols thereto requires it to continue the
examination of this part of the application.
- Accordingly,
it must be struck out of the list pursuant to Article 37 § 1(a)
of the Convention.
III. THE APPLICANT’S ALLEGED ILL-TREATMENT IN
UKRAINE
- The
applicant complained that the conditions of his detention in SIZO had
been inhuman and degrading. He relied on Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- Relying
on the Court’s decisions in Vinokurov v. Russia and Ukraine
((dec.), no. 2937/04, 16 October 2007), and Aliev v. Ukraine
(No.2) ((dec.), no. 33617/02, 14 October 2008), the
Government argued that the applicant had failed to exhaust domestic
remedies in respect of his complaints about the conditions of
detention. In particular, the applicant could have raised those
complaints before the SIZO authorities, the prosecutors, or
administrative courts.
- The
Government further contended that the authorities had become aware of
the complaints of ill-treatment in the SIZO from the applicant’s
submissions to the Court, a copy of which the Government had received
in June 2010.
- The
Government also argued that the applicant’s allegation of risk
of reprisals for complaints to the authorities was not supported by
relevant evidence. In this regard, the Government relied on the
Court’s decision in Plyatsevyy v. Ukraine ((dec.), no.
8783/04, 25 November 2008).
- They
further stated that the applicant’s complaints were of a
general nature and lacked a detailed account of the facts. They were
not supported by documentary evidence. The Government noted that
similar complaints were rejected by the Court in Ukhan v. Ukraine
(no. 30628/02, §§ 65-66, 18 December 2008), and
Vergelskyy v. Ukraine (no. 19312/06, §§ 89-91,
12 March 2009).
- Relying
on the Court’s judgment in Kudła v. Poland ([GC],
no. 30210/96, §§ 92-94, ECHR 2000 XI), the Government
argued that the cutting of the applicant’s hair could not have
caused him distress of an intensity exceeding the unavoidable level
of suffering inherent in lawful detention. The Government contested
the applicant’s allegation that he had been held in a cell with
suspects of serious crimes. They also noted, relying on the Court’s
judgment in Gorea v. Moldova (no. 21984/05, § 47,
17 July 2007), that the applicant had not complained that
his cellmates had abused him.
- The
applicant challenged the availability of a remedy in his situation.
In particular, he argued that Ukrainian law did not require
prosecutors or prison authorities to reply to or examine complaints
of ill-treatment in detention. The applicant therefore could not be
reproached for not complaining to these authorities. In this regard,
the applicant relied on the Court’s judgments in Fressoz and
Roire v. France ([GC], no. 29183/95, § 37, ECHR
1999 I), and Civet v. France ([GC], no. 29340/95, § 41,
ECHR 1999 VI), and the Court’s decision in Tomé
Mota v. Portugal ((dec.), no. 32082/96, ECHR 1999 IX)
- The
applicant further submitted that he feared repressive measures if he
complained about SIZO staff while in detention. In this respect, he
made reference to the situation in which he had been coerced to give
a statement denying ill-treatment (see paragraphs 83-84 above).
- The
applicant argued that his complaints about the conditions of
detention were sufficiently substantiated and that it was the
Government’s duty, given that they had access to the relevant
information, to look into the allegations and to inform him of the
outcome of that inquiry.
- As
to the alleged shaving off of his hair, the applicant submitted that
it was a routine hygienic measure applied to all detainees in
Ukraine. Because of the treatment he had feelings of fear and
inferiority and clearly considered it to be degrading. Furthermore,
as he was of Jewish origin, the applicant drew parallels with similar
practices in concentration camps during the Nazi regime in Germany.
The applicant also stated that even if the Government’s
submission that his hair had only been cut short could be accepted,
that treatment had the same humiliating and degrading effect.
B. The Court’s assessment
- The
Court reiterates that the requirement that an applicant must first
make use of domestic remedies before applying to the Court is an
important aspect of the machinery of protection established by the
Convention, which is subsidiary to the national systems safeguarding
human rights (see Akdivar and Others v. Turkey, 16 September
1996, § 65, Reports of Judgments and Decisions 1996 IV,
and, for a recent authority, A, B and C v. Ireland [GC], no.
25579/05, § 142, 16 December 2010). To this end, Article 35 § 1
of the Convention affords the national authorities, primarily the
courts, the opportunity to prevent or put right alleged violations of
the Convention before those allegations are submitted to the Court.
- However,
the only remedies to be used are those which are effective and
available in theory and in practice at the relevant time. In
particular, the remedies must be capable of providing redress in
respect of applicants’ complaints and of offering reasonable
prospects of success (see Scoppola v. Italy (no. 2)
[GC], no. 10249/03, § 71, 17 September 2009).
- Even
where a remedy is normally available in the domestic system, there
may be special circumstances dispensing an applicant from the
obligation to avail him or herself of it (see, for instance, Sejdovic
v. Italy [GC], no. 56581/00, § 55, ECHR 2006 II).
Furthermore, the rule is inapplicable where an administrative
practice consisting of a repetition of acts incompatible with the
Convention and official tolerance by the State authorities has been
shown to exist, and is of such a nature as to make proceedings futile
or ineffective (see Aksoy v. Turkey, 18 December 1996, § 52,
Reports of Judgments and Decisions 1996-VI).
- Turning
to the circumstances of the present case, the Court notes that the
applicant’s complaints of ill-treatment in the SIZO concern
several issues. Namely, the shaving of the applicant’s head,
his placement in a cell with suspects of serious crimes, lack of food
and drinking water, the applicant’s exposure to a risk of
contracting tuberculosis, the humiliating conditions of his
transport, and the refusal of the authorities to allow parcels of
food and medication to be given to the applicant.
- The
Court notes that the applicant did not argue, at least not in a
persuasive and substantiated way, that his complaints about the
conditions of detention in the SIZO, excluding the alleged cutting
off of his hair, concern problems of a structural nature at the
domestic level (compare and contrast with, for instance, Melnik v.
Ukraine, no. 72286/01, §§ 69-71, 28 March
2006, and Pokhlebin v. Ukraine, no. 35581/06, §§
41-42, 20 May 2010).
- The
applicant also failed to provide any substantiation for his argument
that compulsory shaving of the head or cutting of the hair was a
measure routinely applied to all detainees in Ukraine. In this
particular context, the Court observes that the relevant regulations
did not provide for the compulsory application of such a measure to
detainees in SIZOs or ITTs within the SBU structure, in contrast to,
for instance, the rules governing detention in ITTs
within the structure of the Ministry of the
Interior (see paragraphs 94-96 above). Furthermore, the
relevant findings of the CPT point to the problem of compulsory and
indiscriminate application of the measure to life prisoners in
Ukraine (see paragraph 97 above).
- Thus,
given the Court’s relevant case-law in respect of Ukraine, the
applicant was obliged to address his complaints to any competent
authority or official before bringing them before the Court (see
Vinokurov, cited above, and Aliev (No. 2), cited
above).
- The
Court observes that neither the applicant himself nor his lawyers,
who visited him in the SIZO on a number of occasions, submitted any
complaints about the conditions of the applicant’s detention to
the domestic authorities.
- The
Court does not find that the applicant’s fear of reprisals by
SIZO staff for complaining about the conditions of detention was
justified in the circumstances, in particular given that the
authorities were informed of his complaints when notice of the
application was given to the Government (see paragraph 3 above) and
there is no information that the conditions of his detention worsened
subsequently.
- In
the light of the foregoing, the Court finds that the applicant did
not take sufficient steps at the domestic level to bring his
complaints of ill-treatment in the SIZO to the attention of the
national authorities, and therefore he has not complied with the
requirement of exhaustion of domestic remedies under Article 35 §
1 of the Convention.
- It
follows that this part of the application must be declared
inadmissible in accordance with Article 35 §§ 1 and 4 of
the Convention.
IV. COMPLAINTS CONCERNING THE APPLICANT’S DETENTION
IN UKRAINE
- The
applicant complained under Article 5 § 1 (f)
of the Convention that his detention pending extradition had been
unlawful and arbitrary. In particular, he argued that Ukrainian
regulations concerning extradition matters, including detention
pending extradition, were not comprehensible or predictable.
- Relying
on Article 5 § 3 of the Convention, the applicant
stated that the authorities had failed to decide expeditiously on the
request for his extradition.
- He
further complained that the Ukrainian legal system did not provide
for judicial review of the lawfulness of extradition detention
satisfying the requirements of Article 5 § 4 of
the Convention. The applicant also alleged that in violation of
Article 6 of the Convention he had not been given the opportunity to
be heard before the Court of Appeal deciding on the lawfulness of his
detention.
- The
Court notes that the applicant’s complaints fall to be examined
under Article 5 §§ 1 (f) and 4 of the Convention,
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.
...”
A. Admissibility
- The
Court notes that the above complaints concerning the applicant’s
detention are not manifestly ill-founded within the meaning of
Article 35 § 3 (a) 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 applicant
- The
applicant stated that while his detention in Ukraine before 17 June
2010 had not been based on sufficient legal grounds, the new
regulations did not bring his detention after
that date into compliance with the Convention requirements. In
particular, he argued that the domestic court deciding on the
lawfulness of his continued detention had applied the regulations
formally and had omitted to deal with the applicant’s
substantial objections to his extradition. The courts also
failed to consider his submissions that he might not be prosecuted on
charges of abuse of office, as he had never held
any office in Belarus. In this connection, the applicant
generally stated that allegations of unlawfulness or arbitrariness of
restraint measures chosen by the authorities of the requesting State
in the context of criminal proceedings and allegations of unsoundness
of criminal charges fell outside the scope of the review by the
Ukrainian courts.
- The
applicant further argued that the courts did not
take into consideration the possibility of releasing him from
detention under certain conditions, in spite of the lengthy period of
his detention.
134. The
applicant noted that under the new regulations there was no
obligation to inform the person whose liberty was at question, or his
lawyer, of a court hearing on the matter, while under Article 468
of the Code of Criminal Procedure a notice of hearing should be given
to the prosecutors.
- The
applicant also stated that the new regulations did not establish
effective safeguards against unlawful or arbitrary extradition, which
adversely affected the reliability of the regulations on detention
pending extradition. According to the applicant, the new regulations
did not provide for the participation of the persons concerned in the
examination of extradition requests by the GPU; such persons were not
given sufficient time to prepare and submit appeals against
extradition decisions; the regulations did not require the courts to
inform the persons of the scheduled hearing concerning their appeals;
criteria according to which courts have to assess the lawfulness of
extradition decisions were not specified; the courts were not
required to verify the accuracy of the prosecutors’ findings or
to consider the danger for the persons concerned to be subjected to
torture or inhuman treatment in the receiving State or the risk of
flagrant denial of justice in case of extradition; such danger might
only be relied on as a ground for refusing extradition if the person
concerned was granted refugee status. The applicant also submitted
that under the new regulations ongoing court proceedings on appeals
against extradition decisions did not impede their actual execution.
- Relying
on the observations of the US Department of State in its 2009 Country
Reports on Human Rights Practices pertinent to Ukraine (see paragraph
98 above), the applicant argued that Ukrainian courts generally could
not provide effective judicial protection, as they were dependent on
the Government. The latter systematically put pressure on the courts
in politically sensitive cases. According to the applicant, judges
dealing with extradition cases were influenced by the SBU.
(b) The Government
- The
Government submitted that the regulations concerning detention
pending extradition were sufficiently accessible, precise and
foreseeable in their application.
- The
applicant’s detention was justified by the fact that the GPU
was carrying out, with due diligence and without delays, an inquiry
concerning the request for the applicant’s extradition. The
Government argued that there had been sufficient reasons for the
GPU’s decision to extend the time for completion of the inquiry
in August 2010, though they did not specify such reasons.
- As
regards the applicant’s complaint under Article 5 § 4
of the Convention, the Government noted that the Code of Criminal
Procedure, as amended on 17 June 2010, provided a real
opportunity to seek regular judicial review of the lawfulness of
detention pending extradition. This procedure was accessible to the
applicant and effective. The courts were competent to order
the applicant’s release if his detention had no legal basis.
- The
fact that the applicant used the available judicial avenues to
challenge the lawfulness of his detention pending extradition
confirmed that effective domestic remedies were available to him in
this respect.
- The
amended regulations also provided for the compulsory judicial review
of lawfulness of the applicant’s detention every two months.
- The
Government stated that the procedure introduced on 17 June 2010
complied with the requirements of Article 5 § 4
of the Convention.
2. The Court’s assessment
(a) The general principles
i. Article 5 § 1 (f)
of the Convention
- The
Court reiterates that Article 5 § 1 (f) of
the Convention essentially requires that deprivation of liberty of
persons against whom action is being taken with a view to deportation
or extradition be carried out in accordance with a procedure
prescribed by law and in good faith (see, for instance, A. and
Others v. the United Kingdom [GC], no. 3455/05, § 164-165,
ECHR 2009).
- The
words “in accordance with a procedure prescribed by law”
do not merely refer back to domestic law; they also relate to the
quality of this law, requiring it to be compatible with the rule of
law, a concept inherent in all Articles of the Convention. Quality in
this sense implies that where a national law authorises deprivation
of liberty, it must be sufficiently accessible and precise, in order
to avoid all risk of arbitrariness (see, for instance, Amuur v.
France, 25 June 1996, § 43, Reports of Judgments and
Decisions 1996 III).
- The
notion of arbitrariness in the context of this provision extends
beyond lack of conformity with national law, so that a deprivation of
liberty may be lawful in terms of domestic law but still arbitrary
and thus contrary to the Convention (see, for instance, Saadi v.
the United Kingdom [GC], no. 13229/03, § 67 et seq.,
ECHR 2008).
- Article 5 § 1 (f)
of the Convention also requires that the place and conditions of
detention pending deportation or extradition proceedings be
appropriate and that the length of detention does not exceed that
reasonably required for completion of such proceedings (see Chahal
v. the United Kingdom, 15 November 1996, §§ 112-113,
Reports of Judgments and Decisions 1996-V; Amuur, cited
above, § 43; Gebremedhin [Gaberamadhien] v. France, no.
25389/05, § 74, ECHR 2007 II; Saadi, cited
above, §§ 72-74; and A. and Others v. the United
Kingdom, cited above; and M. and Others v. Bulgaria,
no. 41416/08, §§ 61-62, 26 July 2011).
ii. Article 5 § 4 of
the Convention
- The
Court refers to its extensive case-law on Article 5 § 4 of the
Convention (see, for instance, Ismoilov and Others v. Russia,
no. 2947/06, § 145, 24 April 2008; Khudyakova v. Russia,
no. 13476/04, §§ 89, 92, 93 and 97, 8 January 2009; A.
and Others v. the United Kingdom, cited above, §§ 202-211;
and Svetlorusov v. Ukraine, no. 2929/05, § 57,
12 March 2009) and reiterates that it entitles an arrested or
detained person to institute proceedings bearing on the procedural
and substantive conditions, which are essential for the “lawfulness”,
in the sense of the Convention, of his or her deprivation of liberty,
and capable of leading, where appropriate, to the person’s
release.
- The
opportunity to initiate such proceedings must be provided, both in
theory and in practice, soon after the person is taken into detention
and, if necessary, at reasonable intervals thereafter.
- Although
it is not always necessary for an Article 5 § 4 procedure
to incorporate the same guarantees as required by Article 6 for
criminal or civil litigation, it must have a judicial and adversarial
character, ensure “equality of arms” between the parties,
be conducted with due diligence, and be attended by other guarantees
appropriate to the type of deprivation of liberty in question.
(b) Application of the general principles
in the present case
- The
Court observes that during the applicant’s detention pending
extradition proceedings there were important changes in Ukrainian
law, and in particular that new regulations on such detention were
put in place on 17 June 2010.
- In
the applicant’s case the new regulations were first applied on
23 June 2010, when the
Krasnogvardiyskyy Court ordered the applicant to remain in detention
pursuant to Article 463 of the Code of Criminal Procedure.
- Therefore,
the Court will examine the applicant’s complaints concerning
his detention prior to and after the entry into force of the new
regulations and their actual application in his case separately.
i. The applicant’s detention from 23
February to 17 June 2010
- The
Court has previously found violations of Article 5 §§
1 and 4 of the Convention in cases against Ukraine concerning
the detention pending extradition within the legal framework that
existed prior to 17 June 2010 (see, among other authorities,
Svetlorusov, cited above, §§ 47-49 and 58-59; and
Kamyshev v. Ukraine, no. 3990/06, §§ 67-68, 20 May
2010). These findings were principally based on the lack of
sufficient legal basis for detention pending extradition and for
review of lawfulness of such detention.
- The
Court notes that the findings are equally pertinent to the present
aspect of the case and that the Government did not put forward any
fact or argument capable of persuading the Court to depart from its
previous case-law.
- Accordingly,
the Court holds that there has been a violation of Article 5 §§
1 (f) and 4 of the Convention as regards the applicant’s
detention from 23 February to 17 June 2010.
ii. The applicant’s detention from
17 to 23 June 2010
- The
above findings are also pertinent to the assessment of the
applicant’s complaints in so far as they concern the
applicant’s detention after the entry into force of the new
regulations and prior to their actual application in the applicant’s
case, that is from 17 to 23 June 2010.
- In
particular, the Court observes that before that period the applicant
was detained pursuant to the decision of the Babushkinskyy Court of
10 March 2010, which was not based on the new regulations.
Although the Krasnogvardiyskyy Court initially held that the decision
was valid after the new regulations entered into force, the soundness
of such an approach was not confirmed by the court of appeal (see
paragraphs 32-34 above).
- The
Court does not find any reason to disagree with the court of appeal
as regards this particular issue. In any event, as the decision of
10 March 2010 was taken in the context of the previous legal
framework, which the Court found incompatible with Article 5 § 1
(f) of the Convention (see paragraphs 153-155 above), and there was
no decision authorising the applicant’s detention from 17 to 23
June 2010 under the new regulations, the Court holds that the
applicant was detained during that period not in accordance with the
procedure prescribed by law (see Mokallal v. Ukraine,
no. 19246/10, § 40, 10 November 2011).
- Turning
to the Article 5 § 4 aspect of this part of the
case, the Court notes that the law implementing the new regulations
contained no transitional arrangements concerning, in particular,
their application in respect of persons already in detention on the
date of the regulations’ entry into force. Thus, it is unclear
whether the applicant would have been able to initiate the review
procedure provided for in paragraph 9 of Article 463 of the Code of
Criminal Procedure before a decision to apply extradition arrest was
taken in his case.
- The
Court takes the view that in the circumstances, where the new
regulations could have created some uncertainty as to their
application in the applicant’s situation (see Mokallal,
cited above), the authorities bore the obligation to ensure, without
delay and through the relevant judicial procedure of review, that the
applicant’s continued detention was in compliance with the new
regulations.
- The
Court observes that no such review took place for six days after the
new regulations entered into force, and no justification was given
for the delay.
- The
foregoing considerations enable the Court to conclude that the
requirements of judicial control of the lawfulness of the applicant’s
detention during the impugned period were not met.
- Accordingly,
the Court finds that there has been a violation of Article 5 §§
1 (f) and 4 of the Convention as regards the applicant’s
detention from 17 to 23 June 2010.
iii. The applicant’s detention from
23 June 2010 to 19 May 2011
- Turning
to the applicant’s complaints concerning his detention from
23 June 2010 until his release on 19 May 2011, the Court
considers it justified to split their examination under Article 5
§ 1 (f) and Article 5 § 4 of the
Convention.
α. Compliance with Article 5 § 1
(f) of the Convention
- The
Court notes that the new regulations on which the courts relied in
their decisions concerning the applicant’s detention during the
period under consideration provide for specific procedures of arrest
and detention of persons who are wanted by third States for criminal
prosecution. In particular, the regulations set grounds and
time-limits for detention pending extradition, and determine the
authorities responsible for dealing with detention matters (see
paragraph 91 above).
- For
the Court, they appear to be sufficiently clear and precise, while
their accessibility was not questioned by the applicant.
- The
arguments which the applicant provided in support of his contention
that the regulations on extradition detention were not comprehensible
or predictable concern, in the first place, the question of
consistency of the extradition procedure (see paragraph 135 above),
which is not the subject of the present examination. While it is true
that serious irregularities in an extradition or deportation
procedure may undermine the lawfulness of the related arrest or
detention (see, mutatis mutandis, Bozano v. France, 18
December 1986, §§ 55-60, Series A no. 111, and Longa
Yonkeu v. Latvia, no. 57229/09, §§
139-140 and 143, 15 November 2011), the applicant did not
demonstrate that the alleged deficiencies in the Ukrainian
extradition regulations had actually had an adverse effect on his
detention.
- The
Court further observes that throughout the entire period of the
applicant’s detention it was the authorities’ intention
to extradite him and no legal or factual impediment to his ultimate
extradition was established before he was released. The fact that
such an impediment was eventually found to exist and that the
applicant’s extradition was refused on that ground (see
paragraph 63 above) was not capable of retrospectively rendering the
applicant’s detention unlawful. The Court reiterates that all
that is required under Article 5 § 1 (f) of the Convention is
that “action is being taken with a view to deportation or
extradition”, in the context of which any risks and objections
linked to the person’s possible removal from the territory of
the State fall to be examined (see Čonka, cited above, §
38, and Mokallal, cited above, § 43).
- Therefore,
given the applicant’s complaint about the length of the
extradition proceedings, the Court must also ascertain whether the
applicant’s detention remained justified during the period
under consideration by the need to take action with a view to his
extradition (see paragraph 146 above).
- The
Court observes that it took the authorities approximately one year
and five months to complete the extradition inquiry, during which
period the applicant was detained for about one year and three
months. While the period of four months before 23 June 2010
falls outside the scope of the examination of this part of the case,
the Court will take into account the state of the inquiry on that
day.
- Thus,
the Court notes that by 23 June 2010 the GPU had collected the
applicant’s identity, nationality and occupation data. They had
been provided with information concerning the criminal proceedings
against the applicant in Belarus and his activities in that country.
The GPU had also obtained advice from the SBU and the MFA on the
applicant’s allegations of political persecution in that
country (see paragraphs 55-57 above). There is nothing to suggest
that the above information was insufficient for taking a decision on
the request for the applicant’s extradition.
- The
Court may agree that with the entry into force of the new regulations
on extradition on 17 June 2010 additional time was necessary in
order to ensure that the inquiry complied with the new requirements.
However, the Court notes that the authorities did not provide reasons
for keeping the inquiry ongoing for the next twelve months, in spite
of the general one-month time-limit set by the new regulations.
- While
it is true that the authorities took specific measures in order to
obtain further information concerning the request for the applicant’s
extradition (see paragraph 61 above), the Court was not informed of
any other noteworthy steps taken by the authorities in the framework
of the inquiry after the information was received on 29 July
2010. The Court may appreciate that it could have taken the
authorities some time after that date to complete the decision-making
process. However, the Government did not suggest so. The material
available to the Court does not demonstrate that between 29 July 2010
and 19 May 2011 the relevant proceedings were being actively and
diligently pursued with a view to determining whether it would be
lawful to proceed with the applicant’s extradition (compare and
contrast with Chahal, cited above, §§ 115-117).
- The
Court further notes that it was not suggested by the parties that the
authorities had to delay a decision on the applicant’s
extradition pending the outcome of the proceedings on the applicant’s
request for refugee status (see paragraphs 74-78 above). The interim
measure which the Court indicated in the present case did not
constitute a legal impediment to a decision on extradition to Belarus
as such, as the measure was aimed at preventing the implementation of
such a decision and did not set any limits, either in substance or
procedurally, on the authorities’ decision-making (see
paragraphs 64-68 above). In this latter context, the Court finds it
necessary to reiterate that an interim measure, indicated under Rule
39, preventing a person’s extradition or deportation does not
require or form a basis for the person’s detention pending a
decision on his or her extradition or deportation (see Dubovik v.
Ukraine, nos. 33210/07 and 41866/08, § 60, 15 October
2009).
- In
the light of the foregoing, the Court holds that there has been no
violation of Article 5 § 1 (f) of the Convention
as regards the applicant’s detention from 23 June to
29 July 2010.
- However,
as there is no indication that after the latter date the Ukrainian
authorities prosecuted the applicant’s extradition proceedings
with due diligence, the Court finds there has been a violation of
Article 5 § 1 (f) of the Convention as regards
the applicant’s detention from
29 July 2010 to 19 May 2011.
β. Compliance with Article 5 § 4
of the Convention
- The
Court now turns to the question of whether the new regulations
provided the applicant with the right to challenge the lawfulness of
his detention from 23 June 2010 to 19 May 2011, as required
by Article 5 § 4 of the Convention.
- The
Court observes that during the aforementioned period the applicant
was placed under extradition arrest, mainly under Article 463 of
the Code of Criminal Procedure. According to that provision, the
lawfulness of the application of the preventive measure must be
reviewed by a court, at the request of prosecutors, every two months.
The applicant was also entitled to seek such a review of his own
motion, which could be carried out once a month.
- The
applicant did not avail himself of the opportunity of initiating a
judicial review of the lawfulness of his detention. Instead, he and
his lawyers took part in the court proceedings on the prosecutor’s
requests for the applicant’s continued detention, and provided
arguments against the application of the preventive measure in his
case. The applicant and his lawyers raised further arguments in the
appeals they lodged against some of the court’s decisions
allowing the prosecutors’ requests (see paragraphs 35, 36, 39,
42, 43 and 45 above).
- In
his application to the Court, the applicant complained that the
procedure of review of the lawfulness of his detention did not meet
the Convention requirements, mainly because it was limited in scope
and hindered his effective participation. He also argued that no
effective judicial review could be provided in Ukraine, as the courts
were dependent on the Government and influenced by the SBU.
- The
Court will address these issues in turn.
- As
regards the applicant’s argument concerning the limitations on
his participation in the review, the Court observes that throughout
the proceedings the applicant, assisted by lawyers, had the
opportunity to comment on the prosecutor’s requests for his
continued detention and to convey and defend his arguments before the
courts at the ordinary and appeal levels of jurisdiction. The
applicant did not refer to any court hearing concerning his detention
of which he or his lawyers had not been duly notified. He was present
at all hearings before the first-instance court. Given the particular
circumstances of the case, the fact that the applicant was not
allowed to take part in the appeal hearings did not upset the
“equality of arms” between the parties or otherwise
render the proceedings unfair. The appeal hearings were attended by
the applicant’s lawyers and the applicant did not suggest that
he had had additional arguments which could not have been raised by
his lawyers at those hearings.
- Having
regard to the general nature and vagueness of the applicant’s
allegations of the national courts’ lack of independence and
impartiality, the Court does not consider that their further
examination is justified in the present case.
- The
Court also notes that, while a question may be raised as to whether
the review of the lawfulness of the applicant’s detention was
carried out in accordance with the time-limits envisaged by the
regulations, the applicant made no submissions in this respect. The
Court does not find it appropriate to take up this matter of its own
motion.
- In
so far as the applicant’s complaints concern the scope of the
judicial review in his case, the Court observes that in the course of
such review the national courts examined the applicant’s
personal information, in particular information concerning his
nationality and his request for refugee status; checked whether an
extradition request in his respect was submitted and whether it was
based on relevant procedural decisions; verified whether the
applicant’s criminal prosecution in Belarus was genuine, did
not concern political or criminal offences and could be pursued in
accordance with Ukrainian law; and satisfied themselves that the
applicant’s extradition was not hindered under Article 57 of
the Minsk Convention, and that the maximum period for the applicant’s
detention under Article 463 of the Code of Criminal Procedure
did not expire. The courts based their decisions on the material
provided by the parties, and in particular the data collected in the
course of the extradition inquiry in the applicant’s case (see
paragraphs 32, 34, 37 and 41 above).
- It
was not suggested by the applicant that the courts had not acted in
accordance with the relevant domestic regulations. He argued that the
regulations did not require the courts to consider other information
allegedly relevant to a decision on his detention, including his
complaints of persecution in Belarus and irregularities in the
criminal proceedings against him in that country.
- In
this regard, the Court notes that the examination of any risks and
objections linked to the person’s possible removal from the
territory of the State is intrinsic to actions “taken with a
view to deportation or extradition” (see Mokallal, cited
above, § 43). The Ukrainian regulations provide for a
separate procedure – extradition inquiry, with a possibility of
further judicial review – in the framework of which the
applicant’s objections against his extradition fell to be
examined and were in fact examined (see paragraph 91 above).
- Thus,
the Court is not of the view that the national courts deciding on the
applicant’s detention were required to carry out a separate
inquiry into the applicant’s objections against his extradition
or that they failed to adequately consider the material collected in
the course of the extradition inquiry.
- However,
the Court considers that the courts should not have omitted to
examine whether the length of the applicant’s detention
exceeded what was reasonably required for the completion of the
inquiry. Given its relevant case-law and the findings under Article
5 § 1 (f) of the Convention in the present case (see
paragraphs 146, 174 and 176 above), the authorities’ compliance
with the “reasonable time” requirement for prosecution of
extradition requests is one of the key conditions for the
“lawfulness” of extradition detention. The fact that it
was not addressed by the national courts in the present case, despite
having been raised by the applicant’s lawyers (see paragraph 36
above), entails the conclusion that the review of the “lawfulness”
of the applicant’s detention during the period in question fell
short of the requirements of Article 5 § 4 of the
Convention.
- Accordingly,
there has been a violation of that provision as regards the
applicant’s detention from 23 June 2010 to 19 May 2011.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
(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.
“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 250,000 euros (EUR) in respect of pecuniary damage
resulting from his alleged inability to pursue business activities
because of his detention in Ukraine. The applicant also claimed
EUR 38,981.46, representing the net salary which had not been
paid to him for the period from 26 February to 31 October
2010 owing to his absence from work. The applicant submitted a
certificate, dated 20 October 2010, from his employer, a
private company the applicant owned and managed, stating that he had
not sought payment of the salary since 1 March 2010 because he
had not been able to perform his managerial duties.
- Under
the same head, the applicant claimed EUR 740,250 for loss of
income under a commercial contract which that company allegedly
failed to put into effect. The applicant submitted copies of the
contract and of a letter, by which his company’s contractor
informed it of its decision to suspend the execution of the contract
in view of the absence of the company’s “chief
representative”.
- Alleging
psychological distress caused by his unlawful detention and
ill-treatment in Ukraine, the applicant further claimed EUR 150,000.
- The
Government stated that the applicant’s claim for just
satisfaction must be rejected. In particular, they argued that there
was no causal link between the alleged violations and the alleged
loss of income.
- As
regards the applicant’s claims for loss of income, the Court
notes that it cannot speculate whether the applicant would have
received the sums claimed had the violation of Article 5 § 1
(f) not occurred in his case. It may not be excluded that the
applicant would have been subjected to some restriction of his
liberty in Ukraine pending the extradition proceedings against him
(see A. and Others v. the United Kingdom, cited above, §
252).
- The
Court further notes that the applicant did not provide a relevant
calculation in support of his claims for loss of income in business
activities and did not demonstrate that he was unable to recover his
salary had he wished to do so.
- In
such circumstances, the Court must reject the applicant’s
claims for compensation for pecuniary damage as unsubstantiated.
- In
so far as the applicant claimed compensation for non-pecuniary
damage, the Court, making its assessment on an
equitable basis, awards him EUR 15,000.
B. Costs and expenses
- The
applicant claimed EUR 48,861.40, inclusive of value-added tax
(“VAT”), for his legal representation before the national
authorities and in the proceedings before this Court. In particular,
the applicant was required to pay this amount for 204 hours worked by
his Berlin lawyer, Mr S. J. Schleicher, at EUR 200 per
hour plus VAT. The work included preparing the application,
procedural requests, observations, just satisfaction claims before
the Court, and various requests to the Ukrainian and German
authorities for the applicant’s release from detention. The
applicant argued that his lawyer’s hourly fee was somewhat
higher than the usual rate in Germany (EUR 180 plus VAT) because
of the complexity of the case and due to the required multilingual
communication with foreign authorities and the Court. In support of
his claims, the applicant submitted copies of the contract with his
lawyer and invoices for legal services.
- The
Government considered the lawyer’s hourly rate to be excessive
and contested the number of hours he had allegedly spent working on
the case. They also argued that the documents submitted by the
applicant in support of the claim were not relevant within the
meaning of Rule 60 of the Rules of Court. The Government invited
the Court to reject the claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
- The
Court observes that a large part of the material submitted by the
applicant concerned his complaints that Articles 3, 5 and 6 of
the Convention had been violated in respect of his extradition to
Belarus and about the conditions of his detention in Ukraine. While
the applicant withdrew the complaints concerning extradition to
Belarus, his complaints about the conditions of detention have been
declared inadmissible.
- Furthermore,
the Court has found no violation of Article 5 § 1
(f) of the Convention in respect of a part of the period of the
applicant’s detention.
- Nevertheless,
the Court agrees with the applicant that the case, in so far as it
relates to the Court’s finding of violation of Article 5 § 1
(f) and Article 5 § 4 of the Convention, is
factually and legally complex. Thus, the costs and expenses incurred
by the applicant in his attempts to prevent and to put an end to such
violations at the national level, and to obtain redress in the
proceedings before this Court, may not be considered unjustified.
- In
the light of the foregoing and given the documents in its possession,
the Court considers it reasonable to award the sum of EUR 15,000
covering costs and expenses incurred in the domestic and Strasbourg
proceedings.
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
- Decides to strike the application out of its
list of cases in so far as it concerns the applicant’s
complaints about a violation of Articles 3, 5 and 6 of the
Convention in case of his extradition to Belarus;
- Declares the complaints under Article 5 §§ 1
(f) and 4 of the Convention about the applicant’s detention in
Ukraine admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 (f) of the Convention as regards the applicant’s
detention from 23 February to 23 June 2010 and from 29 July
2010 to 19 May 2011;
- Holds that there has been no violation of
Article 5 § 1 (f) of the Convention as regards the
applicant’s detention from 23 June to 29 July 2010;
- Holds that there has been a violation of Article
5 § 4 of the Convention as regards the applicant’s
detention from 23 February 2010 to 19 May 2011;
- 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 15,000
(fifteen thousand euros) in respect of non-pecuniary damage and
EUR 15,000 (fifteen thousand euros) for costs and expenses, plus
any tax that may be chargeable to the applicant on these amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 26 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President