European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Valeriy Valeryevich NOVIK v Ukraine - 48068/06 [2007] ECHR 306 (13 March 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/306.html
Cite as: [2007] ECHR 306
[New search] [Contents list] [Printable RTF version] [Help]
FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
48068/06
by Valeriy Valeryevich NOVIK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 13 March 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 4 December 2006,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Valeriy Valeryevich Novik, is a Belarusian national who was born in 1969 and lives in Kyiv.
I. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
According to the applicant, since 1994 he has been participating in the activities of and giving financial aid to the political opposition in Belarus. In particular, in 2001 he worked for the office of the democratic candidate for the Presidential post in Belarus, Mr G.; he gave financial aid to opposition candidates in the Belarusian parliamentary elections of 2004; he also organised a campaign against the referendum on the prolongation of the terms of service of the President of Belarus. Furthermore, the applicant participated in various demonstrations and meetings organised by the opposition.
In 2001 Mr K., a businessman, invited the applicant to work as a director of his company in Minsk. The applicant agreed.
In 2003 the Belarusian prosecutors initiated criminal investigations against Mr K. on suspicion of bribery. The applicant was interrogated as a witness on several occasions.
By a decision of 21 July 2004, an investigator of the Belarusian General Prosecutor’s Office held that the applicant and Mr K. were officially suspected of aggravated fraud, namely illegal business activities on the territory of Belarus, and of tax evasion.
In August 2004 the applicant left Belarus for Ukraine. From that time on he has been residing in Ukraine. He however made several visits to Belarus.
On 25 October 2005 the Belarusian prosecutors ordered a nationwide search for him.
On 3 November 2005 the General Prosecutor’s Office of Belarus issued an arrest warrant against the applicant.
On an unspecified date the Embassy of Belarus in Ukraine, acting on behalf of the Ministry of the Interior of Belarus, requested the Ukrainian Ministry of the Interior to assist in the applicant’s search and apprehension.
On 30 November 2006 the applicant was apprehended by the police in Kyiv.
On 1 December 2006 the Pecherskyy District Court of Kyiv ordered the applicant’s detention for forty days pending an official request for his extradition to Belarus and in order to effect his transfer to the law enforcement authorities of Belarus. The court held that the applicant was to be detained in the Kyiv Pre-trial Detention Centre (SIZO) No. 13.
On 4 December 2006 the applicant appealed against the decision of 1 December 2006. He contended that the first instance court had not taken into account his state of health and the fact that he, together with his wife and three minor children, had been residing in Ukraine for a long period of time, and that the court had not examined the applicant’s submissions concerning his political persecution in Belarus.
On 7 December 2006 the applicant applied for asylum in Ukraine. He has not yet received any reply from the Ukrainian authorities concerning the outcome of his application.
On 8 December 2006 the Kyiv City Court of Appeal rejected the applicant’s appeal against the decision of 1 December 2006. It held that the first instance court had duly taken into account the applicant’s state of health. However, it took the view that his family situation was irrelevant for the case and that the applicant’s allegations of political persecution in Belarus were unsubstantiated.
On an unspecified date the Deputy Prosecutor of the Republic of Belarus submitted an official request to the Office of the General Prosecutor of Ukraine, seeking the applicant’s extradition to Belarus.
By letter of 25 December 2006 the Deputy Prosecutor General of Ukraine informed the Belarusian Deputy Prosecutor General that the applicant would not be extradited on the ground that, under Ukrainian law, the charges against the applicant did not carry imprisonment.
On 27 December 2006 the applicant was released from detention.
II. RELEVANT DOMESTIC LAW and practice
1. Constitution of Ukraine, 1996
Article 29
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with the procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in regard to the holding in custody.
Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.
Everyone detained has the right to challenge his or her detention in court at any time.
Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”
Article 55
“Human and citizens’ rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers.
... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant.
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
2. The CIS Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”)
Article 61 § 2 of the Minsk Convention provides that the person whose extradition is sought may be placed in detention even before the extradition request is received. The relevant request must refer to the decision regarding placement in pre-trial detention.
Article 62 § 1 of the Minsk Convention provides that a person who has been detained in application of the above-mentioned Article 61 § 2 may be released if the extradition request is not lodged within forty days of his or her detention.
3. Resolution no. 8 of the Plenary Supreme Court of 8 October 2004 on issues related to the application of legislation governing the procedure and length of detention (arrest) of persons awaiting extradition”
The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:
“The Constitution of Ukraine stipulates that no one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with the procedure established by law (Article 29).
In accordance with the first paragraph of Article 9 of the Constitution, international agreements in force ratified by the Verkhovna Rada form part of the national legislation. Under the second paragraph of Section 19 of the International Treaties Act of 29 June 2004, if an international treaty to which Ukraine is a party and which has been ratified in accordance with the procedure prescribed by law establishes rules which differ from those laid down by the Ukrainian legislation, the rules of the international treaty shall apply.
Issues related to inviolability and freedom of movement (detention, arrest, apprehension and so forth) are therefore regulated not only by the norms of the Code of Criminal Procedure (“the CCP”) and Article 10 of the Criminal Code (“the CC”), but by international treaties to which Ukraine is a party, and in particular by the 1957 European Convention on Extradition and its Additional Protocols of 1975 and 1978, ratified on 16 January 1998 by Law no. 43/98-ВР, ... the CIS Convention on Legal Assistance of 22 January 1993, concluded in Minsk and ratified on 10 November 1994 by Law no. 240/94-ВР, bilateral treaties between Ukraine and other States, multilateral specialised treaties ...
... For the purposes of uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves:
1. ... in deciding whether an issue related to extradition to another State is within the courts’ jurisdiction, the courts must refer to the provisions of the Constitution of Ukraine, other national legislation, including the European Convention or other international treaties to which Ukraine is a party and by which it has agreed to be bound, or the former USSR’s treaties applied by Ukraine pursuant to Law no. 1543 XII of 12 September 1991 on the succession of Ukraine.
The courts should therefore decide what treaties have been concluded between Ukraine and the requesting State and what procedure that treaty lays down for resolving extradition issues.
The court should take into account that, pursuant to the second paragraph of Article 10 of the CC, foreign nationals and stateless persons residing on the territory of Ukraine on a permanent basis, who have committed crimes outside the territory of Ukraine and are currently on its territory, can be extradited to a foreign State for criminal prosecution and referral to the courts is only possible if Ukraine is party to an international treaty to that effect.
Pursuant to the second paragraph of Article 25 of the Constitution of Ukraine a citizen of Ukraine shall not be “surrendered to another State”.
2. Having regard to the fact that the current legislation does not allow the courts to decide independently on issuing extradition warrants and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated by the law of the country to which the extradition request is being addressed, the courts are not empowered to decide on this issue.
They [courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including on their detention, as these issues are to be decided by the competent Ukrainian authorities.
3. Bearing in mind that in Ukraine a person can be held in detention for more than three days only on the basis of a reasoned court decision, and taking into account the fact that, pursuant to the second paragraph of Article 29 of the Constitution, such a decision can only be taken by a competent Ukrainian court, courts must accept jurisdiction and examine the merits of prosecutors’ requests and requests, approved by the prosecuting authorities, from the bodies acting upon extradition requests from other States [concerning individuals’ extradition], for detention and rendition under guard to the competent State bodies of the requesting State.
4. Pursuant to Article 16 of the European Convention on Extradition and other similar provisions of international treaties to which Ukraine is a party, the competent State bodies of the requesting State may in some cases request that a wanted person be temporarily detained. The competent State bodies dealing with the request shall take a decision in accordance with their country’s legislation.
In this respect local courts shall decide on and examine the merits of the requests made by prosecutors or other bodies approved by them which are acting upon requests from other States relating to the extradition or temporary arrest of a person for the purposes of his or her transfer under guard to the competent body of the requesting State, for a period established by the European Convention on Extradition or another international treaty.
5. The courts shall decide whether an individual’s detention or his or her temporary arrest is accordance with the rules laid down in Article 165-2 of the CCP.
The courts have the right to apply paragraph 4 of Article 165-2 of the CCP in a situation where a person is handed over to the court with a view to a decision on his apprehension (temporary arrest) for the purposes of extradition or transfer.
The court shall review the existence of a request and of the relevant documents, established by treaty, forming the basis for extradition, and the absence of any grounds prohibiting extradition or transfer (Articles 2, 3, 6, 10, 11 of the European Convention on Extradition and the 1975 and 1978 Additional Protocols thereto and Article 57 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters). In particular, detainees shall not be extradited for political and military offences; in the event of expiry of the limitation period; when, on the territory of the party to which the extradition request has been made, a court has already delivered a judgment or resolution closing the proceedings concerning a charge similar to the one mentioned in the extradition request; when issues related to extradition of a citizen of Ukraine or stateless persons permanently residing on the territory of Ukraine are being considered; in respect of persons enjoying refugee status in Ukraine; if the requesting party fail to provide Ukraine with sufficient guarantees that a sentence of capital punishment will not be enforced for the offence for which extradition has been requested, [if the offence in issue] is punishable by the death sentence in accordance with the law of the requesting State; if the offence, in accordance with the law of the party requesting extradition, or Ukrainian law, can be prosecuted by means of a private prosecution; if the offence which forms the basis for extradition is punishable by a maximum [sentence] of less than one year’s imprisonment or a less severe penalty.
The courts shall also take into account other provisions of the European Convention on Extradition or other international treaties with regard to legal assistance which give the party to which the extradition request is addressed the right to refuse extradition.
The courts should also make due reference to the fact that, under Article 28 of the European Convention, its provisions replace any other bilateral international treaties, conventions or agreements regulating extradition issues between any two Contracting Parties. Therefore, if a requesting State is a party to the European Convention, the provisions of bilateral or multilateral international treaties concerning extradition shall be applied in part, where they amend the provisions of that Convention.
6. In accordance with the third paragraph of Article 29 of the Constitution, the courts shall take into account and examine the merits of complaints by the individuals concerned and their lawyers and legal representatives alleging unlawful detention on the basis of an extradition request from another State.
Such requests shall be examined on the basis of Article 106 (7) and (8) of the CCP. In deciding whether a person is being detained lawfully, the judge shall refer to the relevant provisions of Article 106 of the CCP with regard to detention procedures and compliance with procedural formalities and the provisions of the relevant international treaty on the basis of which the person has been detained, and also to the presence of the necessary documents on which the extradition is based (in particular, the request for extradition, the decisions of the competent bodies of the requesting party with regard to detention or arrest of the person, and so forth).”
COMPLAINTS
The applicant complained under Article 3 that there was a risk of him being subjected to torture and inhuman or degrading treatment by the Belarusian law-enforcement authorities with the aim of extracting his confession in the course of the criminal proceedings against him. He also alleged that the Belarusian authorities persecuted him for political conspiracy against the Lukashenka regime and assistance to the opposition.
The applicant further complained under the same provision that Ukrainian law did not provide for an effective and accessible remedy to challenge the extradition decision of the General Prosecutor’s Office, and, thus, his complaints of possible treatment contrary to Article 3 of the Convention in Belarus would not be considered by the Ukrainian authorities deciding on his extradition.
The applicant next complained that by extraditing him to Belarus, where he was likely to be subjected to an unfair trial, Ukraine would violate Article 6 § 1 of the Convention.
Relying on Article 5 § 1 (c) of the Convention, the applicant contested the lawfulness of his detention in Ukraine.
THE LAW
“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:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
...
(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 ...”
The Court observes that the applicant was apprehended by the Ukrainian police on 30 November 2006 upon the request of the Embassy of Belarus in Ukraine to assist in the applicant’s search and apprehension on suspicion of fraud. On 1 December 2006 the Pecherskyy District Court of Kyiv ordered the applicant’s detention for forty days pending an official request for his extradition to Belarus and in order to effect his transfer to the law enforcement authorities of Belarus. In these circumstances, the Court considers that the Ukrainian authorities arrested and detained the applicant in order to take actions with a view to his extradition. Therefore, notwithstanding the applicant’s submissions to the contrary, his above complaint falls to be considered under Article 5 § 1 (f) of the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of it to the respondent Government.
For these reasons, the Court unanimously
Decides to discontinue the application of Rule 39 of the Rules of Court;
Decides to adjourn the examination of the applicant’s complaint concerning the alleged unlawfulness of his detention from 30 November until 27 December 2006;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President