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SOLDATENKO v. UKRAINE - 2440/07 [2008] ECHR 1142 (23 October 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1142.html
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[2008] ECHR 1142
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FIFTH SECTION
CASE OF
SOLDATENKO v. UKRAINE
(Application no. 2440/07)
JUDGMENT
STRASBOURG
23 October 2008
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 Soldatenko v. Ukraine,
The European Court of Human Rights
(Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having deliberated in private on 30
September 2008,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
The case originated in an
application (no. 2440/07) against Ukraine lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Mr Nikolay
Ivanovich Soldatenko (“the applicant”) on 15 January
2007.
The applicant, who had
been granted legal aid, was represented by Mr A.P. Bushchenko, a
lawyer practising in Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev,
of the Ministry of Justice.
On 20 February 2007 the
Court decided to give notice of the application to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility. Further to the applicant's request, the Court
granted priority to the application (Rule 41 of the Rules of Court).
Written submissions were
received from the Helsinki Foundation for Human Rights in Warsaw,
which had been granted leave by the President to intervene as a third
party (Article 36 § 2 of the Convention and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in
1961 and is currently detained in a penitentiary institution in the
Kherson region, awaiting his extradition to Turkmenistan. The
applicant's lawyer claims that the applicant is a stateless person.
According to the Government, the applicant is a Turkmen national. The
applicant himself does not deny his Turkmen nationality and has not
raised the issue of his allegedly stateless status before the
Ukrainian authorities.
On 7 July 1999 the
Turkmen law-enforcement authorities issued a bill of indictment
against the applicant for inflicting light and grievous bodily harm
on two individuals on 4 June 1999 (the latter, more serious crime is
punishable by five to ten years' imprisonment under the Criminal Code
of Turkmenistan). The same day the Turkmen police ordered the
applicant's arrest. This latter decision was approved by the Ashgabat
Azatlyksky District Prosecutor on 8 July 1999.
On 12 July 1999 a search
for the applicant was announced by the police.
The applicant left
Turkmenistan in October 1999 because of his alleged persecution on
ethnic grounds. Since then he has resided in Ukraine.
On 4 January 2007 the
applicant was apprehended by the police. According to the applicant
his relatives were informed that he had been arrested for hooliganism
and later they were informed he had been arrested under Article 106
of the Code of Criminal Procedure under an international search
warrant.
The same day the
applicant was informed that he was wanted by the law-enforcement
authorities of Turkmenistan. According to the applicant, the police
officers persuaded him to refrain from asking for legal assistance
under the pretext that all procedural steps in his criminal case
would be conducted in the territory of Turkmenistan.
The same day the Kherson
Police Department received an official request from the Turkmen
authorities for the applicant's provisional arrest under the CIS
Convention on Legal Assistance and Legal Relations in Civil, Family
and Criminal Matters, 1993.
On 8 January 2007 the
applicant was allowed to see a lawyer.
On 10 January 2007 the
applicant was brought by the police before a judge of the Kakhovsky
District Court of the Kherson Region, who ordered his detention
pending the extradition proceedings against him. The decision, which
stated that an appeal could be made under Article 165-2 of the Code
of Criminal Procedure, was served immediately. No time-limit was set
for his detention.
The same day the
applicant was questioned by the Gornostaevsky District Prosecutor, to
whom he explained, inter alia, that prior to his arrest he had
not been aware that he had been wanted by the Turkmen law-enforcement
authorities. He further explained that he had signed a waiver of
assistance from a lawyer since the police had explained to him that
he would not face a trial in Ukraine.
On 15 January 2007 the
applicant requested the Court to apply Rule 39 of the Rules of
Court in his case. On 16 January 2007 the President of the Chamber
decided to apply Rule 39, indicating to the Government that it would
be desirable in the interests of the parties and the proper conduct
of the proceedings not to extradite the applicant to Turkmenistan
pending the Court's decision.
On 19 January 2007 the
General Prosecutor's Office of Turkmenistan requested the applicant's
extradition with a view to criminal prosecution for the crimes of
inflicting light and grievous bodily harm on two individuals. It
further gave assurances that the applicant would be prosecuted only
for the crimes indicated in the request, that he would be allowed to
leave Turkmenistan after serving his sentence, and that he would not
be handed over to a third country without the consent of the
Ukrainian authorities. It added that he had never been and would
never be discriminated against on the grounds of social status, race,
ethnic origin or religious beliefs. This request was received by the
General Prosecutor's Office of Ukraine on 30 January 2007. It appears
that the applicant learned about this document only in the framework
of the Convention proceedings.
On 31 January 2007 the
General Prosecutor's Office of Ukraine informed the General
Prosecutor's Office of Turkmenistan of the suspension of the
extradition proceedings pursuant to the interim measure indicated by
the Court.
On 5 February 2007 the
Gornostaevsky Prosecutor's Office sent a petition to the head of the
Gornostaevsky Police Department, stating that the applicant's
detention had breached criminal procedural law. According to the
petition, the applicant had been arrested on 4 January 2007 and
placed in a cell at the police station in accordance with the arrest
warrant issued by the Ashgabat Azatlyksky District Prosecutor's
Office of Turkmenistan. The prosecutor noted that from 4 to 10
January 2007 the police had not brought the applicant before a court
to decide on his detention and had not informed the prosecutor about
his detention. The prosecutor considered that the situation had
arisen because of the police officers' negligent performance of their
duties and called for disciplinary action to be taken against them.
By orders of 20 February
and 15 March 2007 the police officers responsible for the applicant's
detention in violation of the law were punished by an oral warning, a
formal reprimand and deprivation of bonus payments for one month.
In a letter of 19 April
2007 the First Deputy Prosecutor General of Turkmenistan, in reply to
the request from the Ukrainian General Prosecutor's Office, informed
it that the observance of the applicant's rights and legitimate
interests would be guaranteed, in particular:
“- the requirements of Article 3 of the Convention
on Human Rights and Fundamental Freedoms will be fulfilled in respect
of N.I. Soldatenko, he will not be subjected to torture, inhuman or
degrading treatment or punishment after extradition;
- in case of necessity he will be provided with
appropriate medical treatment and medical assistance;
- the right to fair judicial consideration of his
criminal case will be secured to him.”
He further pointed out that the death
penalty had been abolished in Turkmenistan.
II. RELEVANT LAW AND PRACTICE
A. Relevant international and domestic law
1. Constitution of Ukraine 1996
The relevant provisions
of the Constitution read as follows:
Article 9
“International treaties that are in force and are
agreed to be binding by the Verkhovna Rada of Ukraine are part of the
national legislation of Ukraine.”
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 grounds and in
accordance with a 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 respect of the holding in custody.
Everyone who has been 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 who has been 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 omissions 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...”
Article 92
“The following are determined exclusively by the
laws of Ukraine:
(1) human and citizens' rights and freedoms, the
guarantees of these rights and freedoms; the main duties of the
citizen; ..
(14) the judicial system, judicial proceedings, the
status of judges, the principles of judicial expertise, the
organisation and operation of the prosecution service, the bodies of
inquiry and investigation, the notary, the bodies and institutions
for the execution of punishments; the fundamentals of the
organisation and activity of the advocacy; ...”
2. The CIS Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters 1993 (“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 Turkmenistan on 19 February 1998. The text of the
Convention was published on 16 November 2005 in the Official Gazette
of Ukraine (no. 44, 2005). The relevant provisions of the Convention
read as follows:
Article 61: Arrest or detention before the receipt of
a request for extradition
“1. The person whose extradition is
sought may also be arrested before receipt of a request for
extradition, if there is a related petition (ходатайство).
The petition shall contain a reference to a detention order
... and shall indicate that a request for extradition will follow. A
petition for arrest ... may be sent by post, wire, telex or
fax.
2. The person may also be detained without
the petition referred to in point 1 above if there are legal
grounds to suspect that he has committed, in the territory of the
other Contracting Party, an offence entailing extradition.
3. In case of [the person's] arrest or
detention before receipt of the request for extradition, the
other Contracting Party shall be informed immediately.”
Article 62: Release of the arrested or detained
person
“1. A person arrested pursuant to
Article 61 § 1 shall be released if no request for
extradition is received within a month of the arrest.
2. A person arrested pursuant to Article 61 §
2 shall be released if no request for extradition is received
within the time established by the law concerning arrest.”
3. Code of Civil Procedure of Ukraine 1963 (replaced by
a new Code on 1 September 2005)
Chapter 31-a of the Code
lay down the procedure for considering complaints by citizens about
decisions, acts and omissions of State bodies, legal persons and
officials in the sphere of administration.
4. Code of Administrative Justice of 6 July 2005
(entered into force on 1 September 2005)
Article 2 of the Code
provides that the task of the administrative judiciary is the
protection of the rights, freedoms and interests of individuals and
the rights and interests of legal entities in
the sphere of public-law relations from violations by State bodies,
bodies of local self-government, their officials and other persons in
the exercise of their powers. Under the second paragraph of this
Article, any decisions, actions or omissions of the authorities may
be challenged before the administrative courts.
According to paragraph 7
of Chapter VII of the Transitional Provisions of the Code, after its
entry into force any applications and complaints arising from
administrative-law relations (Chapters 29-32 of the Code of Civil
Procedure 1963) that had been lodged but not yet considered were to
be examined under the procedure set out in the Code of Administrative
Justice.
5. Code of Criminal Procedure, 1960 (with amendments)
Article 106 of the Code
governs the arrest and detention of persons suspected of committing a
criminal offence. It provides:
Article 106: Detention of a criminal suspect by the
investigating body
“The investigating body shall be entitled to
arrest a person suspected of a criminal offence for which a penalty
in the form of deprivation of liberty may be imposed only on one of
the following grounds:
1. if the person is discovered whilst or immediately
after committing an offence;
2. if eyewitnesses, including victims, directly identify
this person as the one who committed the offence;
3. if clear traces of the offence are found on the body
of the suspect or on the clothing which he is wearing or which is
kept at his home.
For each case of detention of a criminal suspect, the
investigating body shall be required to draw up a record mentioning
the grounds, the motives, the day, time, year and month, the place of
detention, the explanations of the person detained and the time when
it was recorded that the suspect was informed of his right to have a
meeting with defence counsel before his first questioning, in
accordance with the procedure provided for in paragraph 2 of Article
21 of the present Code. The record of detention shall be signed by
the person who drew it up and by the detainee.
A copy of the record with a list of his rights and
obligations shall be immediately handed to the detainee and shall be
sent to the prosecutor. At the request of the prosecutor, the
material which served as a ground for detention shall be sent to him
as well.
The investigating body shall immediately inform one of
the suspect's relatives of his detention...
Within seventy-two hours after the arrest the
investigating body shall:
(1) release the detainee if the suspicion that he
committed the crime has not been confirmed, if the term of detention
established by law has expired or if the arrest has been effected in
violation of the requirements of paragraphs 1 and 2 of the present
Article;
(2) release the detainee and select a non-custodial
preventive measure;
(3) bring the detainee before a judge with a request to
impose a custodial preventive measure on him or her.
If the detention is appealed against to a court, the
detainee's complaint shall be immediately sent by the head of the
detention facility to the court. The judge shall consider the
complaint together with the request by the investigating body for
application of the preventive measure. If the complaint is received
after the preventive measure was applied, the judge shall examine it
within three days after receiving it. If the request has not been
received or if the complaint has been received after the term of
seventy-two hours of detention, the complaint shall be considered by
the judge within five days after receiving it.
The complaint shall be considered in accordance with the
requirements of Article 165-2 of this Code. Following its
examination, the judge shall give a ruling, either declaring that the
detention is lawful or allowing the complaint and finding the
detention to be unlawful.
The ruling of the judge may be appealed against within
seven days from the date of its adoption by the prosecutor, the
person concerned, or his or her defence counsel or legal
representative. Lodging such an appeal does not suspend the execution
of the court's ruling.
Detention of a criminal suspect shall not last for more
than seventy-two hours.
If, within the terms established by law, the ruling of
the judge on the application of a custodial preventive measure or on
the release of the detainee has not arrived at the pre-trial
detention facility, the head of the pre-trial detention facility
shall release the person concerned, drawing up a record to that
effect, and shall inform accordingly the official or body that
carried out the arrest.”
Article 148 of the Code
provides that preventive measures shall be imposed on a suspect,
accused, defendant, or convicted person.
Article 165-2 of the
Code concerns the selection of a preventive measure in criminal
proceedings. It reads as follows:
Article 165-2: Procedure for the selection of a
preventive measure
“At the stage of the pre-trial investigation, a
non-custodial preventive measure shall be selected by the
investigating body, investigator or prosecutor.
In the event that the investigating body or investigator
considers that there are grounds for selecting a custodial preventive
measure, with the prosecutor's consent he shall lodge an application
with the court. The prosecutor is entitled to lodge an application to
the same effect. In determining this issue, the prosecutor shall be
obliged to familiarise himself with all the material evidence in the
case that would justify placing the person in custody, and to verify
that the evidence was received in a lawful manner and is sufficient
for charging the person.
The application shall be considered within seventy-two
hours of the time at which the suspect or accused is detained.
In the event that the application concerns the detention
of a person who is currently not deprived of his liberty, the judge
shall be entitled, by means of an order, to give permission for the
suspect to be detained and brought before the court under guard.
Detention in such cases may not exceed seventy-two hours; and in the
event that the person is outside the locality where the court is
situated, it may not exceed forty-eight hours from the moment at
which the detainee is brought within the locality.
Upon receiving the application, the judge shall examine
the material in the criminal case file submitted by the investigating
bodies or investigator. A prosecutor shall question the suspect or
accused and, if necessary, shall hear evidence from the person who is
the subject of the proceedings, shall obtain the opinion of the
previous prosecutor or defence counsel, if the latter appeared before
the court, and shall make an order:
(1) refusing to select the preventive measure
if there are no grounds for doing so;
(2) selecting a preventive measure in the
form of taking of a suspect or accused into custody.
The court shall be entitled to select for the suspect or
accused a non-custodial preventive measure if the investigator or
prosecutor refuses to select a custodial preventive measure for him
or her.
The judge's order may be appealed against to the court
of appeal by the prosecutor, suspect, accused or his or her defence
counsel or legal representative, within three days from the date on
which it was made. The lodging of an appeal shall not suspend the
execution of the judge's order.”
Article 382 of the Code
lays down the procedure of appeal against first-instance court
rulings and decisions, including those given under Article 165-2 of
the Code.
6. Recommendation No. R (98) 13 of the Committee of
Ministers to Member States on the right of rejected asylum seekers to
an effective remedy against decisions on expulsion in the context of
Article 3 of the European Convention on Human Rights
The recommendation calls
for the following procedural requirements in the case of removal of
asylum seekers:
“The Committee of Ministers ...
Recommends that governments of member states, while
applying their own procedural rules, ensure that the following
guarantees are complied with in their legislation or practice:
1. An effective remedy before a national authority
should be provided for any asylum seeker, whose request for refugee
status is rejected and who is subject to expulsion to a country about
which that person presents an arguable claim that he or she would be
subjected to torture or inhuman or degrading treatment or punishment.
2. In applying paragraph 1 of this recommendation, a
remedy before a national authority is considered effective when:
2.1. that authority is judicial; or, if it is a
quasi-judicial or administrative authority, it is clearly identified
and composed of members who are impartial and who enjoy safeguards of
independence;
2.2. that authority has competence both to decide on the
existence of the conditions provided for by Article 3 of the
Convention and to grant appropriate relief;
2.3 the remedy is accessible for the rejected asylum
seeker; and
2.4 the execution of the expulsion order is suspended
until a decision under 2.2 is taken.”
B. Relevant domestic practice
1. Resolution no. 16 of the Plenary Supreme Court of 8
October 2004 on certain issues relating to the application of
legislation governing the procedure and length of detention (arrest)
of persons awaiting extradition
31. The
relevant extracts from the Resolution of the Plenary Supreme Court
read as follows:
“The Constitution of Ukraine provides that no one
may be arrested or held in custody other than pursuant to a reasoned
court decision and only on grounds and in accordance with a 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 a 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 relating 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 also
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 ...
... An examination of the practice of the courts of
Ukraine in deciding issues relating to the extradition of persons to
other States demonstrates that they have applied the relevant
legislation differently. In particular, some courts initiate
proceedings on applications by the competent authorities concerning
the application of a preventive measure in the form of detention of
the persons to be extradited, while others refuse to institute
proceedings on such applications.
For the purposes of the 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 relating
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 [1957] 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 such treaties lay down for resolving extradition issues...
2. Having regard to the fact that the current
legislation does not allow the courts independently to give
permission for extradition of persons 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 solely by the law of the requested
State the courts are not empowered to decide on this issue.
They [the courts] cannot on their own initiative decide
on preventive measures applicable to persons subject to rendition or
transfer, including 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 way, local courts decide on and examine the
merits of 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 must decide whether an
individual's detention or temporary arrest is in accordance with the
rules laid down in Article 165-2 of the Code of Criminal Procedure.
The courts have the right to apply paragraph 4 of
Article 165-2 of the Code of Criminal Procedure 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 and 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 may not be extradited for political and military offences;
in the event of expiry of the limitation period; when, in 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 relating to the 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 fails 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 Code of Criminal Procedure. 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).”
2. Third party's comments
The third party,
commenting on the lack of a relevant procedure for reviewing
decisions on extradition in Ukrainian law, submitted an example of
the relevant domestic practice, which at the time had received
considerable attention from the international community.
33. The
2006 Country Reports on Human Rights Practices, released by the
United States Department of State on 6 March 2007, described this
example of administrative practice in the following way in its report
on Ukraine:
“On February 16, UNHCR and the international
community strongly condemned the forcible deportation of 10 Uzbek
asylum seekers. The SBU [Security Service of Ukraine] detained eleven
men in Crimea based on extradition warrants issued by the Uzbekistani
authorities on the grounds that they allegedly participated in the
Andijan mass protests in Uzbekistan in May 2005. They were
transferred to a Ministry of Interior detention facility in
Simferopol. The UNHCR asked authorities for assurances that no
asylum-seekers would be forcibly returned unless they had been
determined not to be refugees and had completed asylum procedures,
including any appeal. The Migration Service in Crimea rejected the
asylum applications on the basis that they were 'manifestly
unfounded'. On February 14, 10 of the men were forcibly returned to
Uzbekistan. (The remaining man was reportedly allowed to stay because
he had relatives in the country.) Twenty-one Ukrainian regional human
rights organizations issued a statement protesting the incident. On
May 3, the Ministry of Justice issued a legal opinion saying that
deportation was illegal. The president's chief of staff stated that
the deportation was a violation of procedure because the refugees
were not granted ten days to appeal the deportation, but added that
the extradition was acceptable as they 'belonged to a radical Islamic
group'.”
C. Relevant international materials concerning the
situation of human rights in Turkmenistan
1. The Country Reports on Human Rights Practices by the
US Department of State
34. The
Country Reports on Human Rights Practices of the US Department of
State (hereafter “the Reports”) for 2003, released on
25 February 2004, noted with respect to Turkmenistan:
“c. Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
... there were widespread credible reports that security
officials tortured, routinely beat, and used force against criminal
suspects and prisoners to obtain confessions...
... There were reports that prisoners needing medical
treatment were beaten on their way to and from the hospital. Security
forces also used denial of medical treatment and food, verbal
intimidation, and placement in unsanitary conditions to coerce
confessions...
... Conditions were poor in prisons, which were
unsanitary, overcrowded, and unsafe. Disease, particularly
tuberculosis, was rampant, in part because prisoners who were ill
were often not removed from the general prison population. Food was
poor and prisoners depended on relatives to supplement inadequate
food supplies. Facilities for prisoner rehabilitation and recreation
were extremely limited. Most prisoners could receive food and
sundries once per month from relatives; those who did not suffered
greatly. Prisoners held under the 'Betrayers of the Motherland' law
were unable to receive food, sundries, or visits by relatives. Most
were held in the newly constructed maximum security prison at Ovadan
Depe, where access to prisoners was extremely limited...
There were three types of prisons throughout the
country: educational-labor colonies; correctional-labor colonies; and
prisons. Some prisoners, usually former government officials, were
sent into internal exile. In the correctional-labor colonies, there
were reports of excessive periods of isolation of prisoners in cells
and 'chambers'. A new prison for hardened criminals and political
prisoners at Ovadan Depe, near Ashgabat, was completed in June.
Authorities allegedly threatened, harassed, and abused prisoners in
an attempt to force some prisoners to renounce their faiths.
In Gyzylgaya prison, located in the Karakum Desert,
prisoners were forced to work in a kaolin mine under hazardous and
unhealthy conditions...
... Some prisoners died due to the combination of
overcrowding, untreated illnesses, and lack of adequate protection
from the severe summer heat...
... Prison officials refused to respond to inquiries
from family members and foreign diplomats about prisoners'
whereabouts or physical condition, or to allow family members,
foreign diplomats or international observers, including the
International Committee of the Red Cross (ICRC), to visit detainees
or prisoners, including political prisoners, by year's end. The
Government claimed that granting access to prisoners would be an
admission that there were problems with the country's penal system...
Detainees are entitled to immediate access to an
attorney once a bill of indictment has been issued; however, in
practice they were not allowed prompt or regular access to legal
counsel. Incommunicado detention was a problem. Authorities regularly
denied prisoners visits by family members, who often did not know
their whereabouts...
d. Arbitrary Arrest, Detention, or Exile
... In February, President Niyazov signed the 'Betrayers
of the Motherland' law, which characterizes any opposition to the
government as an act of treason. Those convicted under the law face
life imprisonment, are ineligible for amnesty or reduction of
sentence, and may not receive visitors or food from outside
sources... By year's end, approximately 50 to 60 persons were
arrested or convicted under the law...
The law provides that a person accused of a crime may be
held in pretrial detention for no more than 2 months, which in
exceptional cases may be extended to 1 year. In practice, authorities
often exceeded these limits ...
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary;
however, in practice the judiciary was not independent. The
President's power to select and dismiss judges subordinated the
judiciary to the Presidency. The President appointed all judges for a
term of 5 years. There was no legislative review of these
appointments, except for the Chairman (Chief Justice) of the Supreme
Court, and the President had the sole authority to dismiss all
appointees before the completion of their terms...
The law provides for the rights of due process for
defendants, including a public trial, access to accusatory material,
the right to call witnesses to testify on their behalf, a defense
attorney, a court-appointed lawyer if they could not afford one, and
the right to represent themselves in court. In practice, authorities
often denied these rights, and there were few independent lawyers
available to represent defendants...
In January, summary trials of those accused in the
November 2002 attack began without public notice. Suspects were not
afforded regular access to their attorneys, and their attorneys were
not allowed to cross-examine other defendants in the case during the
pretrial investigation. Attorneys for some defendants received notice
that proceedings against their clients were beginning only 15 minutes
before the trials (the norm is 1 week). Some defendants did not
receive adequate legal counsel. Attorneys for a number of defendants
expressed regret for defending their clients in their opening
statements, which were broadcast on state-owned television, even
though the trials themselves were not public. The Government refused
to allow family members or foreign diplomats to observe the
proceedings. AI reported that none of the defendants had an
independent lawyer representing them during their trial.
Defendants were not allowed to confront or question
witnesses against them. Defendants and their attorneys were denied
access to government evidence against them; the General Prosecutor's
Office stated the evidence consisted of 'state secrets'. The
defendants did not enjoy a presumption of innocence. Before the
trials began, the Government publicly announced that the principal
defendants were guilty and sentenced them to life imprisonment under
the new 'Betrayers of the Motherland' law. Sentences for those
convicted of involvement in the November 2002 attack ranged from life
imprisonment to forced resettlement. The systemic failure to observe
due process in investigating and prosecuting prisoners implicated in
the attack made it difficult to distinguish between those actually
complicit in the attack and some who may be political prisoners
convicted for their perceived political opposition views. An OSCE
Rapporteur described the trials as 'in breach of all the most
elementary principles of the rule of law'.
Courts allegedly ignored allegations of torture that
defendants raised in trial...
In practice, adherence to due process in other cases was
not uniform, particularly in the lower courts in rural areas. Even
when due process rights were observed, the authority of the
government prosecutor was so much greater than that of the defense
attorney that it was very difficult for the defendant to receive a
fair trial. In an October 2002 case against two former senior
officials, the Ashgabat City Court refused to admit evidence critical
to the defense, despite the fact that it appeared to be admissible
under the law.
In general, observers were not permitted access to
ostensibly open court proceedings. The Government physically
prevented foreign diplomats from attending the trials of accused
November 2002 attackers and of a civil society activist in March;
however, foreign diplomats attended the trial of two former officials
in October 2002 and of a member of Jehovah's Witnesses in May...”
The 2006 Reports,
released on 6 March 2007, showed no improvements in the situation:
“c. Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
The constitution and law prohibits such practices;
however, security officials tortured, routinely beat, and used
excessive force against criminal suspects, prisoners, and individuals
critical of the government, particularly in detention while seeking a
confession...
Prison and Detention Center Conditions
Prison conditions were poor; prisons were unsanitary,
overcrowded, unsafe, and posed a threat to life. Disease,
particularly tuberculosis (TB), was rampant. There continued to be
concerns that prisoners with TB were released untested and untreated
into the general population, although the government reportedly began
screening prisoners for TB, among other diseases, upon their release
and provided some treatment in some cases. Prisoners diagnosed with
TB were transferred to a special Ministry of Interior hospital in
Mary Welayat for treatment. Government officials protested foreign
diplomatic missions' allegations of poor prison conditions, but they
did not respond to direct inquiries. Nutrition was poor, and
prisoners depended on relatives to supplement inadequate food
supplies, although prisoners convicted for treason were unable to
receive supplies from relatives. The government defined treason as
any opposition to the government...
Family members and international publications claimed
some prisoners died due to the combination of overcrowding, untreated
illnesses, and lack of adequate protection from the summer heat...
There were three types of incarceration facilities
throughout the country: educational-labor colonies,
correctional-labor colonies, and prisons. Some prisoners, usually
former government officials, were sent into internal exile. In the
correctional-labor colonies, relatives of prisoners reported
excessive periods of prisoner isolation. There were reports that
prisoners were forced to work under hazardous and unhealthy
conditions in a kaolin mine in Gyzylgaya Prison, near Dashoguz...
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention;
however, arbitrary arrest and detention were serious problems...
Arrest and Detention
... Detainees are entitled to immediate access to an
attorney once a bill of indictment is issued, and they were able to
choose their counsel; however, in practice they did not have prompt
or regular access to legal counsel. In some cases legal counsel
ceased advising their clients after government officials altered the
charges or case details initially provided to defendants.
Incommunicado detention was a problem. By law detainees are to be
charged within 72 hours; authorities did not respect this right in
practice. There was no bail system. Authorities denied some prisoners
visits by family members during the year. Families sometimes did not
know the whereabouts of imprisoned relatives...
The law characterizes any opposition to the government
as an act of treason. Those convicted faced life imprisonment and
were ineligible for amnesty or reduction of sentence. Unlike in
previous years, there were no known treason convictions during the
year. Those expressing views critical of or different from those of
the government were arrested on charges of economic crimes against
the state and various common crimes...
e. Denial of Fair Public Trial
The law provides for an independent judiciary; however,
in practice the judiciary was subordinate to the president. There was
no legislative review of the president's judicial appointments,
except for the chairman (chief justice) of the Supreme Court, who was
reviewed by the rubber-stamp parliament. The president has the sole
authority to dismiss all judges before the completion of their terms
and has done so frequently down to the city level...
Trial Procedures
The draft revised criminal procedure code released in
2004 remained pending at year's end. The code could significantly
alter the 1961 Soviet code, which was still in force. The proposal
incorporated rights of the accused, including the introduction of the
presumption of innocence, restraints on police searches,
establishment of a bail mechanism, and limits on pretrial detention.
The law provides due process for defendants, including a
public trial, access to accusatory material, the right to call
witnesses to testify on their behalf, a defense attorney, a
court-appointed lawyer if the defendant cannot afford one, and the
right to represent oneself in court. In practice authorities often
denied these rights, and there were few independent lawyers available
to represent defendants. There is no jury system. At times defendants
were not allowed to confront or question witnesses against them,
defendants and their attorneys were denied access to government
evidence against them, and defendants frequently did not enjoy a
presumption of innocence. In some cases, courts refused to accept
exculpatory evidence provided by defense attorneys, even if that
evidence would have changed the outcome of the trial. Even when due
process rights were observed, the authority of the government
prosecutor far exceeded that of the defense attorney, and it was very
difficult for the defendant to receive a fair trial. Court
transcripts were frequently flawed or incomplete, especially in cases
in which defendants' testimony needed to be translated from Russian
to Turkmen. Lower courts' decisions could be appealed, and the
defendant could petition the president for clemency. However, in most
cases, courts allegedly ignored allegations of torture that
defendants raised in trial.
Foreign observers were permitted at some trials.
However, many more trials, especially those considered to be
politically sensitive, including the trial of Helsinki Foundation
affiliate and RFE/RL correspondent Ogulsapar Myradova, were closed to
observers...
Political Prisoners and Detainees
The law characterizes any opposition to the government
as an act of treason. Those convicted faced life imprisonment and
were ineligible for amnesty or reduction of sentence.
Opposition groups and international organizations
claimed the government held many political detainees, although the
precise number was unknown. Detainees may include several hundred
relatives and associates of those implicated in the November 2002
attack being held without charge for their perceived political
opinions and possible involvement in the attack.
Government officials refused to respond to inquiries
from family members and diplomats about political prisoners' location
or condition. Government officials also refused to permit family
members, foreign diplomats, or international observers, including the
ICRC, access to detainees or prisoners associated with the November
2002 attack.”
2. Report of 3 October 2006 by the United Nations
Secretary-General on the Situation of Human Rights in Turkmenistan to
the United Nations General Assembly
36. Referring
to the continuation of gross and systematic violations of human
rights in the country, the UN Secretary-General's report highlighted
among the main areas of concern the use of torture and the absence of
an independent judiciary in Turkmenistan. In his report the
Secretary-General further noted, in particular:
“14. While welcoming the submission of the
reports, the committees generally expressed the need for more
information on the practical implementation of the provisions of the
conventions, including statistical data, in accordance with the
guidelines for preparation of reports. The Committee on the
Elimination of Racial Discrimination 'noted with deep concern the
major contradictions between, on the one hand, consistent information
from both intergovernmental and nongovernmental sources relating to
the existence of grave violations of the Convention in Turkmenistan,
and, on the other hand, the sometimes categorical denials by the
State party' (CERD/C/TKM/CO/5). The Committee also encouraged the
State party to increase its efforts to institute a constructive and
sincere dialogue.
...
E. Developments concerning the full
respect for all human rights and fundamental freedoms
Prison conditions and torture
23. The following sections are based on information
obtained by OHCHR, the special procedures of the Human Rights Council
and the United Nations treaty bodies. Due to the limited access to
information in Turkmenistan by international human rights bodies,
further details on the human rights situation in the country were not
available for the preparation of the present report.
...
38. The Special Rapporteur on the question of torture
referred to the situation of a number of individuals convicted in
December 2002 and January 2003 to prison terms ranging between five
years and life for their alleged involvement in what the authorities
described as an assassination attempt on the President in November
2002 (E/CN.4/2006/6/Add.1). All these prisoners continue to be held
incommunicado, without access to families, lawyers, or independent
bodies such as the International Committee of the Red Cross. The
Special Rapporteur on the question of torture also mentioned
Turkmenistan as one of 33 Governments that have never responded to
urgent appeals sent under his mandate (A/60/316), although having
received a significant number of urgent appeals.
39. The death in custody of a Radio Free Europe/Radio
Liberty journalist, Ogulsapar Muradova, whose body allegedly bore
signs of torture, raises particular concern.
40. The Committee on the Rights of the Child expressed
its deep concern at the information that torture and ill-treatment of
detainees, including children, is widespread (CRC/C/TKM/CO/1),
especially at the moment of apprehension and during pre-trial
detention, and used both to extract confessions or information and as
an additional punishment after the confession...”
3. Other sources
37. The
International Helsinki Federation for Human Rights in its
2007 Report
on Human Rights in the OSCE Region noted the widespread use of
torture and ill-treatment in custody in Turkmenistan and poor prison
conditions there. The same problems in Turkmenistan are mentioned by
Human Rights Watch in its World Report 2007.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION BASED ON LACK OF
INTEREST ON THE PART OF THE APPLICANT AND REQUEST TO HAVE THE CASE
STRUCK OUT
The Government
maintained that the applicant's involvement in the proceedings before
the Court had been limited to signing the authority form by which he
had entrusted Mr Bushchenko to represent him in the proceedings
before the Court. Otherwise, all submissions had been made by Mr
Bushchenko and the Government doubted whether the applicant himself
had been aware of the proceedings pending before this Court and
whether he had an interest in these proceedings. Accordingly, they
invited the Court to strike the case out of its list of cases, on the
ground that the applicant himself had shown no interest in pursuing
his present application.
The applicant's
representative maintained that the applicant's intention to apply to
the Court had been expressed by signing the power of attorney for his
lawyer to act on his behalf before the Court and that there was no
requirement for him to confirm such an intention by any other steps.
The representative further maintained that he experienced problems in
communicating with the applicant due to restrictions imposed on by
the local law enforcement bodies. According to the Government,
following the lawyer's complaint these restrictions had been lifted
after the General Prosecutor's Office intervened and the
communication problem between the applicant and his representative
was resolved.
The Court finds no
circumstances in the present case to conclude that the applicant lost
interest in his case or that his lawyer is no longer authorised to
act on his behalf. The Court accordingly dismisses this objection by
the Government.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained
that, if extradited, he would face a risk of being subjected to
torture and inhuman or degrading treatment by the Turkmen
law-enforcement authorities, which would constitute a violation of
Article 3 of the Convention. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The Government contested
that argument.
A. Admissibility
1. Submissions by the parties
The Government submitted
that the applicant had effective domestic remedies in respect of his
allegations under Article 3 but had failed to make use of them.
The Government submitted
that the applicant had never raised his complaints about the risk of
his ill-treatment in the event of extradition to Turkmenistan with
the domestic courts or the General Prosecutor's Office. The
Government considered that the domestic legislation provided the
applicant with an opportunity to do so. They noted in particular that
Article 55 of the Constitution guaranteed to everybody the right
to challenge any decision, act or omission of the State authorities
in the courts. Furthermore, Article 2 of the Code of Administrative
Justice made it possible to challenge not only the prosecutor's
decision on the applicant's extradition but any action the prosecutor
took in the process of the extradition proceedings. Therefore, they
considered that the applicant had failed to exhaust the remedies
available to him under Ukrainian law.
The applicant noted that
under the Court's case-law, for a remedy in respect of Article 3
complaints in extradition cases to be an effective, the courts had to
be able to effectively review the legality of the exercise of
executive discretion on substantive and procedural grounds and quash
decisions as appropriate. He maintained that he had no possibility of
raising his complaint before the domestic courts, because Ukrainian
legislation lacked a procedure for examining such complaints and
providing him with sufficient means for defending his rights. He
further referred to the Resolution of the Plenary Supreme Court of 8
October 2004, which provided specifically that “...[h]aving
regard to the fact that the current legislation does not allow the
courts independently to give permission for extradition of persons
... the courts are not empowered to decide on this issue.”. The
lack of such a procedure, in the applicant's opinion, created a real
risk of extradition being carried out prior to the final decision of
the domestic courts. He further maintained that the lack of
information about the state of the proceedings for his extradition
and the means of challenging it, as well as his lack of access to the
material in the case file and to legal assistance, seriously hindered
effective access to the courts.
As to the particular
remedies referred to by the Government, the applicant maintained that
these remedies had not proved to be effective in practice. He
submitted two examples of the domestic courts' case-law. In the first
case, the attempt of the first-instance court to examine the
lawfulness of the extradition decision on the basis of Article 55 of
the Constitution and the legislation relevant to administrative-law
complaints had been overruled by the court of appeal in accordance
with the above Resolution of the Supreme Court, on the ground that
the courts were not competent to consider such issues. In the second
case, the administrative-law complaint against the actions of the
prosecutor in extradition proceedings had been dismissed on the
ground that extradition issues belonged to the sphere of criminal law
and should be determined on the basis of the Code of Criminal
Procedure. The Code, however, did not provide for an appropriate
procedure for challenging extradition decisions and did not give the
courts competence to decide on the lawfulness of the extradition and
to suspend extradition pending the final resolution of the complaint.
The applicant further
maintained that neither the courts nor any other national authority
could properly examine the risk of his being tortured in
Turkmenistan. He reached this conclusion on the basis of the
Government's position, expressed in their observations, that they
could not cast doubt on the assurances given by the Turkmen
authorities and that they had no possibility of, or any legal basis
for, seeing these assurances respected.
2. The Court's assessment
The Court reiterates
that in the area of the exhaustion of domestic remedies there is a
distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see Menteş
and Others v. Turkey, judgment of 28 November 1997, Reports of
Judgments and Decisions 1997 VIII, § 57).
49. The
Court notes that the Government referred to two legal provisions:
Article 55 of the Constitution and Article 2 of the Code of
Administrative Justice, which in their opinion provided the applicant
with an effective remedy to challenge the decision on extradition and
any action taken during the extradition proceedings. These provisions
guarantee to everyone the right to challenge any decisions, actions
and omissions of the State authorities in the courts, in particular
in the administrative courts. In the Court's opinion, these
provisions are potentially capable of providing an effective remedy
in respect of complaints that Article 3 would be violated by
decisions to extradite, provided they offered sufficient safeguards.
Such safeguards would require, for example, that the courts could
consider the compatibility of a removal with Article 3 and then, in a
given case, could suspend the extradition. However, the Government do
not give any indication of the powers of the courts in such a review,
and do not submit any decisions in which such actions have been used,
while the applicant submitted court decisions to the contrary (see
paragraph 46 above). The Court therefore dismisses the Government's
preliminary objection as to the necessity for the applicant to
exhaust remedies indicated by the Government.
50. The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Submissions by the parties
(a) The Government
The Government noted
that the General Prosecutor's Office of Turkmenistan had sent
assurances that the applicant's rights under Article 3 of the
Convention would not be violated: he would not be ill-treated and
would be provided with medical treatment, if necessary.
52. The
Government maintained that they could not doubt the information
provided by the Turkmen authorities, as the extradition proceedings
were being conducted in accordance with international agreements.
They further noted that they had neither the possibility of checking
this information nor any legal basis for doing so, since the
proceedings in the applicant's case would be conducted by the foreign
country's authorities. They noted that all countries were interested
in having a good international reputation, and that it was not in a
country's interests to worsen its external relations with its
partners by violating its obligations. In the Government's opinion,
it was more important for the State to have a good international
reputation than to violate its international obligations.
53. As
to the applicant's fear of being subjected to treatment contrary to
Article 3 of the Convention, the Government maintained that the
applicant's fear had been formulated in such a general way that it
was impossible to conclude that the risk was real and personal.
Therefore, they considered that the applicant's arguments were
insufficient to conclude that there might be a violation of the
applicant's rights in the event of his extradition.
(b) The applicant
The applicant contended
that the Government's submissions about the international reputation
of a State were speculative.
The applicant maintained
that in Turkmenistan there was a practice of torturing people during
investigation to extract confessions. Furthermore, in Turkmenistan he
would face a risk of appalling conditions of detention. The applicant
made particular reference to the conditions in the SIZO of the
Ministry of the Interior in Ashgabat, in which he was most likely to
be held in the event of his extradition. He referred to a number of
international materials, which described the human rights situation
in Turkmenistan as particularly worrying.
He further maintained
that the risk described concerned him personally. He asserted that he
did not have any specific circumstances capable of protecting him
from the widespread use of torture and ill-treatment, which
threatened any person detained in Turkmenistan. The applicant
considered that, like any accused or convicted person, he ran the
risk of ill-treatment in the context of criminal proceedings.
Furthermore, this risk was intensified by the fact that legislation
and administrative practice in Turkmenistan did not provide
sufficient guarantees against arbitrary detention by the police. The
lack of judicial supervision of detention in Turkmenistan excluded
even minimum control over observance of his rights during his
detention. The lack of access to an independent medical expert would
prevent any signs of possible ill-treatment in detention from being
recorded. He further maintained that the right of immediate access to
a lawyer was seriously impeded in Turkmenistan. Such a situation, in
the applicant's opinion, created “fertile ground” for the
widespread practice of torture and helped the officials involved to
avoid any responsibility.
The applicant maintained
that he would be at risk of even more cruel forms of ill-treatment
because he was a Russian and not an ethnic Turkmen.
The applicant further
maintained that in view of the fact that any opposition to the
government in Turkmenistan was considered an act of treason (see
paragraph 34 above), he feared that his application and submissions
to the Court could be interpreted as treason by the Turkmen
authorities.
He further claimed that
the information submitted by the Turkmen authorities was not
sufficient to assess the soundness of the request for his
extradition.
The applicant noted that
the Government had failed to give reasons to believe that Ukraine
would be able to make sure that Turkmenistan honoured its
international obligations.
He referred to the
relevant international materials demonstrating that Turkmenistan
constantly ignored its obligations under major human rights treaties
and failed to implement recommendations of international
organisations and to cooperate with their monitoring bodies. In these
circumstances the applicant doubted the ability of the Turkmen
authorities, on assuming the obligation to observe his rights, to
supervise the implementation of these obligations by State agents. He
considered that, whatever assurances the Government of Turkmenistan
might present to the Government of Ukraine, they could not guarantee
the observance of these assurances because of the lack of an
effective system of torture prevention. The applicant referred to the
Court's judgment in the case of Salah Sheekh v. the Netherlands
(no. 1948/04, § 147, ECHR 2007 ... (extracts)),
in which it had found that there would be a violation of Article 3 if
the applicant returned to Somalia, since the national authorities
could not guarantee his security.
Finally, the applicant
maintained that the risk of his ill-treatment was closely connected
to the issue of a fair trial.
(c) The third party
The third party noted
the lack of effective domestic remedies in Turkmenistan to
investigate allegations of ill-treatment. They noted the lack of
independence of the judiciary and the persistently poor human-rights
record in Turkmenistan. They referred to international reports
prepared by international governmental and non-governmental
organisations and foreign States with regard to the human-rights
situation in Turkmenistan.
They noted that given
the human-rights situation in Turkmenistan, the applicant would face
a very real risk of torture or ill-treatment.
They concluded that the
issue of the applicant's extradition should be decided not
automatically, but after careful examination of all relevant factors
and his individual case. The lack of an individual approach and the
failure to take into account the human-rights situation in
Turkmenistan in deciding on the applicant's extradition would be
contrary to Article 3 of the Convention.
2. The Court's assessment
(a) General principles
It is the settled case-law of the Court that
extradition by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person in question would, if extradited, face a
real risk of being subjected to treatment contrary to Article 3 in
the receiving country. The establishment of such responsibility
inevitably involves an assessment of conditions in the requesting
country against the standards of Article 3 of the Convention.
Nonetheless, there is no question of adjudicating on or establishing
the responsibility of the receiving country, whether under general
international law, under the Convention or otherwise. In so far as
any liability under the Convention is or may be incurred, it is
liability incurred by the extraditing Contracting State by reason of
its having taken action which has as a direct consequence the
exposure of an individual to proscribed ill-treatment (see Soering
v. the United Kingdom, judgment of 7 July 1989, Series A no. 161,
pp. 35-36, §§ 89-91; Garabayev v. Russia, cited
above, § 73).
In determining whether
it has been shown that the applicant runs a real risk, if expelled,
of suffering treatment proscribed by Article 3, the Court will assess
the issue in the light of all the material placed before it, or, if
necessary, material obtained proprio motu. In cases such as
the present the Court must examine the foreseeable consequences of
sending the applicant to the receiving country, bearing in mind the
general situation there and his personal circumstances (see
Vilvarajah and Others v. the United Kingdom, judgment of 30
October 1991, Series A no. 215, § 108 in
fine). To that end, as regards the general situation in a
particular country, the Court has often attached importance to the
information contained in recent reports from independent
international human-rights-protection associations such as Amnesty
International, or governmental sources, including the US State
Department (see, for example, Chahal v. the United Kingdom,
judgment of 15 November 1996, Reports of Judgments and Decisions
1996 V, §§ 99-100; Müslim v. Turkey,
no.o53566/99, § 67, 26 April 2005; Said
v. the Netherlands, no. 2345/02, § 54, 5 July 2005;
Al-Moayad v. Germany (dec.), no.o35865/03, §§
65-66, 20 February 2007; and Saadi v. Italy [GC], no.
37201/06, §§ 143-146, 28 February 2008). At the
same time, it has held that the mere possibility of ill-treatment on
account of an unsettled situation in the receiving country does not
in itself give rise to a breach of Article 3 (see Vilvarajah and
Others, cited above, § 111, and Fatgan Katani and
Others v. Germany (dec.), no. 67679/01, 31 May 2001) and
that, where the sources available to it describe a general situation,
an applicant's specific allegations in a particular case require
corroboration by other evidence (see Mamatkulov and Askarov v.
Turkey [GC], nos. 46827/99 and 46951/99, § 73,
ECHR 2005 I).
In cases where an
applicant alleges that he or she is a member of a group
systematically exposed to a practice of ill-treatment, the Court
considers that the protection of Article 3 of the Convention enters
into play when the applicant establishes, where necessary on the
basis of the sources mentioned in the previous paragraph, that there
are serious reasons to believe in the existence of the practice in
question and his or her membership of the group concerned (see, Saadi
v. Italy [GC], cited above, § 132).
Ill-treatment must attain a minimum level of severity
if it is to fall within the scope of Article 3. The assessment of
this minimum is, in the nature of things, relative; it depends on all
the circumstances of the case, such as the nature and context of the
treatment or punishment, the manner and method of its execution, its
duration and its physical or mental effects. Treatment will be
considered to be “inhuman” within the meaning of Article
3 because, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense
physical or mental suffering. Furthermore, in considering whether a
punishment or treatment is “degrading” within the meaning
of Article 3, the Court will have regard to whether its object is to
humiliate and debase the person concerned and whether, as far as the
consequences are concerned, it adversely affected his or her
personality in a manner incompatible with Article 3. When assessing
conditions of detention, account has to be taken of their cumulative
effects as well as the applicant's specific allegations. The duration
of detention is also a relevant factor (see, Garabayev v. Russia,
cited above, § 75, with further references). Furthermore, even
if diplomatic assurances have been given, the Court is not absolved
from the obligation to examine whether such assurances provided, in
their practical application, a sufficient guarantee that the
applicant would be protected against the risk of treatment prohibited
by the Convention (see Chahal, cited above, § 105; Saadi
v. Italy [GC], cited above, § 148).
(b) Application of the above principles to
the present case
In line with its
case-law as set out above, the Court needs to establish whether there
exists a real risk of ill-treatment of the applicant in the event of
his extradition to Turkmenistan with reference to the facts which are
known.
71. In
the present case the Court has had regard, firstly, to the reports of
the US State Department (see paragraphs 34 and 35 above). According
to these materials, there were numerous credible reports of torture,
routine beatings and use of force against criminal suspects by the
Turkmen law-enforcement authorities to obtain confessions. There were
reports of beatings of those who required medical help and denial of
medical assistance. According to the Report of the United Nations
Secretary-General (see paragraph 36 above), torture was also used as
a punishment for persons who had already confessed. All above reports
equally noted very poor prison conditions, including overcrowding,
poor nutrition and untreated diseases. It is also reported that
allegations of torture and ill-treatment are not investigated by the
competent Turkmen authorities. Bearing in mind the authority and
reputation of the authors of these reports, the seriousness of the
investigations by means of which they were compiled, the fact that on
the points in question their conclusions are consistent with each
other and that those conclusions are corroborated in substance by
other sources (see paragraph 37 above), the Court does not doubt
their reliability. Moreover, the respondent Government have not
adduced any evidence or reports capable of rebutting the assertions
made in the sources cited by the applicant.
The Court notes that, in
so far as the applicant alleged that he would face a risk of
treatment or punishment which is contrary to Article 3 of the
Convention because of his ethnic origin, there is no evidence in the
available materials that the criminal suspects of non-Turkmen origin
are treated differently from the ethnic Turkmens. From the materials
considered above it appears that any criminal suspect held in custody
counter a serious risk of being subjected to torture or inhuman or
degrading treatment both to extract confessions and to punish for
being a criminal. Despite the fact that the applicant is wanted for
relatively minor and not politically motivated offence, the Court
agrees with the applicant's argument that the mere fact of being
detained as a criminal suspect in such a situation provides
sufficient grounds for fear that he will be at serious risk of being
subjected to treatment contrary to Article 3 of the Convention.
The Court further notes
that in his letter of 19 April 2007 the First Deputy Prosecutor
General of Turkmenistan wrote that the requirements of Article 3 of
the Convention on Human Rights and Fundamental Freedoms would be
fulfilled in respect of the applicant and he would not be subjected
to torture, inhuman or degrading treatment or punishment after
extradition (see paragraph 20 above). The Court observes, however,
that it is not at all established that the First Deputy Prosecutor
General or the institution which he represented was empowered to
provide such assurances on behalf of the State. Furthermore, given
the lack of an effective system of torture prevention, it would be
difficult to see whether such assurances would have been respected.
Finally, the Court notes that the international human rights reports
also showed serious problems as regards the international cooperation
of the Turkmen authorities in the field of human rights and
categorical denials of human rights violations despite the consistent
information from both intergovernmental and nongovernmental sources
(see paragraph 36 above).
In the light of the
above findings, the Court cannot agree with the Government that the
assurances given in the present case would suffice to guarantee
against the serious risk of ill-treatment in case of extradition.
The foregoing
considerations, taken together, are sufficient to enable the Court to
conclude that the applicant's extradition to Turkmenistan would be in
violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicant alleged
that he had no effective remedies to challenge his extradition on the
ground of the risk of ill-treatment. He referred to Article 13, which
provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The Government contended
that the applicant had access to the domestic courts and had thus
been able to raise his complaints before the competent domestic
authorities.
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
The Government and the
applicant referred to their arguments with respect to the
Government's objection as to exhaustion of domestic remedies (see
paragraphs 43-47 above).
The third party
reiterated the Court's case-law concerning the necessity of
reconciliation and of finding a fair balance between international
cooperation in criminal matters and the Convention obligations of the
Contracting States. It emphasised that a State should always take due
account of the threat of a violation of human rights in the
requesting country. Therefore, the courts and other relevant
authorities of many countries made inquiries as to the human-rights
situation abroad in the context of extradition requests. Such
inquiries, for instance, were conducted by the courts in the United
States, Canada, the Netherlands, Germany, Switzerland, Ireland and
Japan. The third party noted that in many countries the conduct of
such inquiries was prescribed by legislation. It therefore underlined
the importance of the Court's assessment of whether in the present
case there were procedures to evaluate the risk of a violation of the
applicant's rights in the event of his extradition.
The third party noted
that unlike in many other States, in Ukraine the decision on
extradition was made by the General Prosecutor's Office. In its
opinion, such decisions should be made by a court since they entailed
serious consequences for the persons whose extradition was requested.
It noted that in Ukraine there was no clear and foreseeable procedure
for appealing against decisions on extradition. It cited an example
of Uzbek asylum-seekers who had been deported following an
extradition request despite the fact that their application for
asylum was still pending (see paragraph 33 above). The third party
provided an example of a decision of the Polish Supreme Court
prohibiting the extradition of an individual from Poland to China on
account of Poland's obligations under Articles 3 and 6 of the
Convention and the risk of a violation of these Convention provisions
in the event of extradition.
2. The Court's assessment
The Court reiterates
that the notion of an effective remedy under the Convention requires
that the remedy may prevent the execution of measures that are
contrary to the Convention and whose effects are potentially
irreversible. Consequently, it is inconsistent with the relevant
provisions of the Convention for such measures to be executed before
the national authorities have examined whether they are compatible
with the Convention, although Contracting States are afforded some
discretion as to the manner in which they conform to their
obligations under this provision (see, mutatis mutandis,
Garabayev v. Russia, no. 38411/02, § 105,
7 June 2007, ECHR 2007 ... (extracts)).
The Court refers to its
findings (at paragraphs 52-53 above) in the present case concerning
the Government's argument regarding domestic remedies. For the same
reasons, the Court concludes that the applicant did not have an
effective domestic remedy, as required by Article 13 of the
Convention, by which he could challenge his extradition on the ground
of the risk of ill-treatment on return. Accordingly, there has been a
breach of this provision.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant next
complained that by extraditing him to Turkmenistan, where he was
likely to be subjected to an unfair trial, Ukraine would violate
Article 6 § 1 of the Convention.
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law...”
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
(a) The Government
The Government
maintained that they could not assess the probability of a violation
of the applicant's right to a fair hearing, as guaranteed by Article
6 § 1 of the Convention, after his extradition. The Government
observed that no proceedings in the applicant's case were pending
before the Turkmen courts, and they had no grounds to believe that
his case would be considered by an unfair court in Turkmenistan.
The Government contended
that the information submitted by the applicant on the situation in
Turkmenistan was insufficient to found a strong belief that the
judicial system in Turkmenistan was based on principles of unfairness
and general violation of human rights during trials.
The Government pointed
out that an issue might only exceptionally be raised under Article 6
by an extradition decision in circumstances where the fugitive had
suffered or risked suffering a flagrant denial of a fair trial in the
requesting country (they cited Soering v. the United Kingdom,
cited above, § 113).
They submitted that a
mere assumption was not enough to raise an issue of a violation of
Article 6 of the Convention in the present case.
They further noted that
the competent Turkmen authorities had provided additional guarantees
that the applicant would have a fair trial in the event of his
extradition.
The Government further
noted that the Court had previously declared a complaint under
Article 6 inadmissible in another extradition case (Novik v.
Ukraine (dec.), no. 48068/06, 13 March 2007), and invited
the Court to declare this complaint inadmissible for the same
reasons.
(b) The applicant
The applicant maintained
that in the event of his extradition he would face a strong risk of
being denied a fair trial. He noted that the Government had failed to
give any explanations about the domestic judicial system in
Turkmenistan, probably because they considered this problem beyond
their responsibilities. The applicant drew attention to the
Government's acceptance that they could not consider the probability
of a flagrant denial of a fair trial in Turkmenistan.
The applicant referred
to the relevant international materials that described the situation
in Turkmenistan and noted that after having been tried in
Turkmenistan, he would not be able to complain of the unfairness of
the trial to the European Court of Human Rights. He underlined that
if the Turkmen authorities infringed the basic principles of a fair
trial in cases which attracted the attention of the international
community, this would be even more likely in his “ordinary”
case.
In view of the reports
by international organisations, he believed that he would risk a
flagrant denial of a fair trial in Turkmenistan.
He lastly challenged the
Government's submissions concerning the resemblance of his case to
that of Novik (cited above), in which the Court had declared
the Article 6 complaint inadmissible. He noted that in the Novik
case, the General Prosecutor's Office had refused to extradite the
applicant on the ground that, under Ukrainian law, the charges
against Mr Novik did not carry a sentence of imprisonment, and
that he had therefore no longer been at risk of extradition. For this
reason, Mr Novik's complaint under Article 6 had been declared
inadmissible.
2. The Court's assessment
The Court recalls its
finding that the extradition of the applicant to Turkmenistan would
constitute a violation of Article 3 of the Convention (see paragraph
75 above). Having no reasons to doubt that the respondent Government
will comply with the present judgment, it considers that it is not
necessary to decide the hypothetical question whether, in the event
of extradition to Turkmenistan, there would also be a violation of
Article 6 of the Convention (see, mutatis mutandis, Saadi
v. Italy [GC], cited above, § 160)
IV. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF
THE CONVENTION
The applicant complained
that he was detained in violation of Article 5 §§ 1 and 3.
He maintained that prior to 30 January 2007, when the General
Prosecutor's Office had received the official request for his
extradition, his detention had fallen within the ambit of Article 5 §
1 (c). Only after that date, in his view, could the detention be
qualified as being “with a view to extradition”.
The relevant parts of Article 5
read as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(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 against whom action is being taken with a view to ...
extradition.
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.”
A. Admissibility
The applicant maintained
that his detention between 4 and 30 January 2007 fell within the
ambit of Article 5 § 1 (c) of the Convention. He considered that
once the request for his extradition had been received by the
Ukrainian authorities on 30 January 2007, his detention fell within
the ambit of Article 5 § 1 (f). For the Government, the
detention fell within Article 5 § 1 (f) throughout.
The Court notes that
the applicant was arrested on the basis of the international search
warrant issued by the Turkmen authorities and he had been so informed
on the day of his arrest. He was also informed that the criminal
procedure against him was pending in Turkmenistan and not in Ukraine.
The same day the Kherson Police Department received an official
request from the Turkmen authorities for the applicant's provisional
arrest under Article 61 of the Minsk Convention. On 10 January 2007
the Kakhovsky Court ordered the applicant's detention pending the
extradition proceedings against him. On 30 January 2007 the General
Prosecutor's Office of Ukraine received an official request from the
General Prosecutor's Office of Turkmenistan for the applicant's
extradition with a view to criminal prosecution. The Court further
notes that the Minsk Convention, which is part of the domestic law in
Ukraine, provides for a provisional arrest of the wanted person with
a view to his possible extradition to the requested State even prior
to the official request for extradition. From the facts described
above the Court considers that the Ukrainian authorities arrested and
detained the applicant in order to take action with a view to his
extradition. There were no criminal proceedings against the applicant
in Ukraine. Moreover, no other reason, except the one of extradition
(and the proceedings for hooliganism which were mentioned to his
relatives but never referred to again), has ever been advanced by the
authorities for the applicant's detention during the period in
question and there is no evidence in the case-file to suggest that
any such other reason has ever existed. Therefore, notwithstanding
the applicant's submissions to the contrary, his detention has always
been with a view to extradition and his above complaint falls to be
considered under Article 5 § 1 (f) of the
Convention (see Novik, cited above). Therefore, Article 5 §
1 (c) and, accordingly, Article 5 § 3 of the Convention are
not applicable in the present case (see Quinn v. France,
judgment of 22 March 1995, Series A no. 311, § 53).
The Government
maintained that the applicant had failed to appeal against the
decision of 10 January 2007 on his arrest to the appellate court.
This possibility was provided for in Article 165-2 of the Code of
Criminal Procedure and had been mentioned in the decision itself.
Therefore, the Government argued that the applicant had failed to
exhaust the remedies available to him under Ukrainian law in respect
of this complaint.
The applicant made no
comment.
The Court further notes
that under Article 165-2 of the Code of Criminal Procedure provides
that it is open to the “prosecutor, suspect, accused or his or
her defence counsel or legal representative” to challenge the
decision of the first instance court. However, the applicant, as a
person detained with a view to extradition rather than a suspect in a
criminal case, did not fall into any of these categories.
Furthermore, the essence of the applicant's complaint about the
unlawfulness of his detention is the lack of legislation that would
provide clear and foreseeable rules of holding someone in custody
pending extradition. The Government did not explain how, against the
background of the Supreme Court's Resolution of 8 October 2004,
an appeal under Article 165-2 would address these issues or remedy
the situation. The Government's objection as to the applicant's
failure to appeal against the initial arrest warrant is therefore
without substance and must be dismissed.
The Court therefore
dismisses the Government's preliminary objection and notes that the
complaint under Article 5 § 1 (f) is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible. The applicant's complaints
under Article 5 §§ 1 (c) and 3 of the Convention are
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
B. Merits
1. Submissions by the parties
The Government
maintained that the extradition of individuals from Ukraine to
Turkmenistan was regulated by the Minsk Convention 1993, which had
been ratified by the Ukrainian Parliament and had become part of
Ukrainian legislation under Article 9 of the Constitution. They
further noted that under the Minsk Convention, a Contracting State
had to recognise official documents issued by the other Contracting
State. Therefore, the Ukrainian Government could not call into
question the official documents issued by the relevant Turkmen
authorities in the applicant's case. The Government maintained that
by detaining the applicant, the Ukrainian authorities had acted in
accordance with their international obligations under the Minsk
Convention and that his detention was for the purpose of extradition.
The Government noted
that the Ukrainian court had ordered the applicant's arrest on 10
January 2007. They maintained that there were no doubts as to the
lawfulness of the domestic court decision and that the applicant's
arrest had been carried out in accordance with a procedure
established by law. They further noted that this procedure allowed
the applicant to appeal against the decision on his arrest, but that
he had failed to do so.
The Government also
noted that with regard to the applicant's detention prior to 7
January 2007, the domestic authorities had acknowledged its
unlawfulness, and the applicant had had an opportunity to appeal.
The applicant
maintained that the requirements of Article 5 § 1 did not
dispense the State from fulfilling its international obligations
regarding extradition, since such a ground for detention was clearly
provided for in Article 5 § 1 (f), which only required the
detention to be in accordance with a procedure prescribed by the
domestic legislation. The applicant submitted that the Minsk
Convention did not provide for such a procedure. He further observed
that the unlawfulness of his detention between 4 and 10 January 2007
had also been admitted by the State authorities themselves.
The third party
submitted that the decision on extradition was closely linked to the
decision on the temporary arrest of the person whose extradition was
being requested. Deprivation of that person's liberty in such
situations likewise required a clear and precise law to protect the
person from arbitrary detention.
2. The Court's assessment
(a) General principles
The Court, as mentioned
above, considers that the applicant was detained with a view to his
extradition from Ukraine to Turkmenistan. Article 5 §
1 (f) of the Convention is thus applicable in the instant case as
mentioned above. This provision does not require that the detention
of a person against whom action is being taken with a view to
extradition be reasonably considered necessary, for example, to
prevent his committing an offence or absconding. In this connection,
Article 5 § 1 (f) provides a different level of protection from
Article 5 § 1 (c): all that is required under sub-paragraph (f)
is that “action is being taken with a view to deportation or
extradition”. It is therefore immaterial, for the purposes of
Article 5 § 1 (f), whether the underlying decision to expel can
be justified under national or Convention law (see Čonka,
cited above, § 38, and Chahal v. the United Kingdom,
judgment of 15 November 1996, Reports 1996-V, § 112).
The Court reiterates,
however, that it falls to it to examine whether the applicant's
detention was “lawful” for the purposes of Article 5 §
1 (f), with particular reference to the safeguards provided by the
national system. Where the “lawfulness” of detention is
in issue, including the question whether “a procedure
prescribed by law” has been followed, the Convention refers
essentially to national law and lays down the obligation to conform
to the substantive and procedural rules of national law, but it
requires in addition that any deprivation of liberty should be in
keeping with the purpose of Article 5, which is to protect the
individual from arbitrariness (see Amuur v. France,
judgment of 25 June 1996, Reports 1996 III, § 50).
The Court must
therefore ascertain whether domestic law itself is in conformity with
the Convention, including the general principles expressed or implied
therein. On this last point, the Court stresses that, where
deprivation of liberty is concerned, it is particularly important
that the general principle of legal certainty be satisfied. In laying
down that any deprivation of liberty must be effected “in
accordance with a procedure prescribed by law”, Article 5 §
1 does not merely refer back to domestic law; like the expressions
“in accordance with the law” and “prescribed by
law” in the second paragraphs of Articles 8 to 11, it also
relates to the “quality of the law”, requiring it to be
compatible with the rule of law, a concept inherent in all the
Articles of the Convention. “Quality of law” in this
sense implies that where a national law authorises deprivation of
liberty it must be sufficiently accessible, precise and foreseeable
in its application, in order to avoid all risk of arbitrariness (see
Khudoyorov v. Russia, no. 6847/02, § 125,
ECHR 2005 X (extracts); Ječius v. Lithuania,
no. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III; and Amuur,
cited above). In Nasrulloyev v. Russia (no. 656/06, §§ 72-77,
11 October 2007) the Court established that Chapter 54 of the
Code of Criminal Procedure of Russia (“Extradition of a person
for criminal prosecution or execution of sentence”), which did
not set up special procedure of arrest and detention with a view to
extradition but referred to the procedure of arrest and detention on
remand, created confusion among the national authorities as to its
application. The Court concluded that the provisions of the Russian
law governing detention of persons with a view to extradition were
neither precise nor foreseeable in their application and fell short
of the “quality of law” standard required under the
Convention.
(b) Application to the present case
The Court accepts the
Government's submission that the Minsk Convention, being part of the
domestic legal order, is capable of serving as a legal basis for
extradition proceedings and for detention with a view to extradition.
Article 5 § 1 (f) of the Convention, however, also requires that
the detention with a view to extradition should be effected “in
accordance with a procedure prescribed by law”. The Minsk
Convention does not provide for a particular procedure to be followed
in the requested State which could offer safeguards against
arbitrariness. The Court therefore has to consider whether other
provisions of Ukrainian law offered such a procedure.
As is apparent from
Article 29 of the Ukrainian Constitution, there is a general rule
that any individual who has been deprived of his or her liberty has
the right to have the reasonableness of his or her detention reviewed
by the domestic court within 72 hours. The Constitution further
guarantees to everyone the right to challenge his or her detention in
a court at any time. In other contexts, those constitutional
safeguards are set out in further detail in separate instruments,
such as the Code of Criminal Procedure and the Psychiatric Medical
Assistance Act in the case of compulsory psychiatric treatment (see
Gorshkov v. Ukraine, no. 67531/01, § 30, 8
November 2005). There are no legal provisions, however, whether in
the Code of Criminal Procedure or in any other legislative
instrument, that provide, even by reference, a procedure for
detention with a view to extradition. The Supreme Court was aware of
the problem, and attempted to address the issues in its resolution
no. 16 of 8 October 2004 (see paragraph 31 above). It advised the
lower courts to apply, mutatis mutandis, certain provisions of
the Code of Criminal Procedure to extradition proceedings.
Nevertheless, the Code of Criminal Procedure itself does not envisage
such a possibility, clearly indicating that preventive measures shall
be imposed on a suspect, accused, defendant, or convicted person (see
paragraphs 26-28 above). Furthermore, the resolutions of the Plenary
Supreme Court do not have the force of law and are not legally
binding on the courts and the law-enforcement bodies involved in
extradition proceedings.
The foregoing
considerations are sufficient for the Court to conclude that
Ukrainian legislation does not provide for a procedure that is
sufficiently accessible, precise and foreseeable in its application
to avoid the risk of arbitrary detention pending extradition. Given
the above findings, the Court does not consider it necessary to
examine each of the applicant's allegations concerning particular
periods of his detention or the appropriateness of the criminal
procedure suggested in the above Resolution of the Plenary Supreme
Court.
There has accordingly been a violation
of Article 5 § 1 (f) of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant further
complained of the lack of sufficient procedural guarantees in
domestic legislation for the review of the lawfulness of his
detention, and of the delay in the initial review of his detention by
the domestic court, given that he had been brought before a court on
the seventh day of his detention. He relied on Article 5 § 4 of
the Convention, which reads as follows:
“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
116. The
Government maintained that the applicant had at his disposal an
effective procedure to challenge the lawfulness of his detention.
According to the Government, this procedure was defined in Articles
106, 165-2 and 382 of the Code of Criminal Procedure, and in the
Resolution of the Plenary Supreme Court of 8 October 2004.
The Government also
noted that the applicant's detention prior to the decision of 10
January 2007 had been reviewed by the prosecutor, who had found that
the applicant's rights had been violated. As a result of the
prosecutor's actions, the officials responsible for this violation
had been held liable for a disciplinary offence. The Government
considered that the acknowledgment of a violation had entitled the
applicant to seek restoration of his rights and compensation, which
he had not done. Therefore, the Government submitted that the
applicant had failed to exhaust the remedies available to him under
Ukrainian law.
The applicant
maintained that Ukrainian legislation did not have any provisions
clearly providing him with the possibility of challenging his
detention in connection with a criminal prosecution in a foreign
country. He considered that the procedure envisaged in Article 106 of
the Code of Criminal Procedure did not comply with the requirements
of Article 5 § 4 of the Convention. This procedure concerned the
review of the first-instance court decision on appeal, but did not
envisage any possibility for the applicant to initiate a periodic
review of the lawfulness of his detention.
The applicant also
noted that he had not been informed about the decisions by which the
domestic authorities had acknowledged a violation of his rights;
therefore, he had not been able to rely on them in any domestic
proceedings. Moreover, this admission had not addressed all his
complaints under Article 5. Furthermore, he questioned the adequacy
of the disciplinary punishment in relation to the violation of his
right to liberty, given that Article 371 of the Criminal Code
provided for criminal punishment in the event of unlawful detention.
The domestic authorities, however, had not initiated any criminal
proceedings to ensure adequate punishment for those responsible.
In reply, the
Government maintained that the applicant had failed to take any
action even after he had received such information.
121. The
Court finds that the Government's contentions concerning
non-exhaustion are so closely linked to the merits that they should
be joined to them and considered together.
122. The
Court therefore joins to the merits the Government's contentions
about availability of effectiveness of remedies for the applicant's
complaint under Article 5 § 4. The Court further notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Submissions by the parties
123. As noted above, the
Government contended that an adequate procedure was defined in
Articles 106, 165-2 and 382 of the Code of Criminal Procedure, and in
the Resolution of the Plenary Supreme Court of 8 October 2004 or,
alternatively, in the possibility of bringing compensation
proceedings in the light of the prosecutor's findings of 20 February
and 15 March 2007 that the applicant's detention prior to 10
January 2007 had violated his rights.
In the applicant's
submission, the only procedure that could be considered under Article
5 § 4 was the one provided in Articles 165-2 and 165-3, but it
did not afford the judicial safeguards required by Article 5 §
4.
2. The Court's assessment
The Court reiterates that the purpose of Article 5 §
4 is to secure to persons who are arrested and detained the right to
judicial supervision of the lawfulness of the measure to which they
are thereby subjected (see, mutatis mutandis, De Wilde,
Ooms and Versyp v. Belgium, judgment of 18 June 1971,
Series A no. 12, § 76). A remedy must be made available during a
person's detention to allow that person to obtain speedy judicial
review of the lawfulness of the detention, capable of leading, where
appropriate, to his or her release. The existence of the remedy
required by Article 5 § 4 must be sufficiently certain, not only
in theory but also in practice, failing which it will lack the
accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis, Stoichkov v.
Bulgaria, no. 9808/02, § 66 in fine, 24
March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71,
ECHR 2004-VIII (extracts)). The accessibility of a remedy implies,
inter alia, that the circumstances voluntarily created by the
authorities must be such as to afford applicants a realistic
possibility of using the remedy (see, mutatis mutandis, Čonka,
cited above, §§ 46 and 55).
The Court refers to its
findings under Article 5 § 1 of the Convention about the lack of
legal provisions governing the procedure for detention in Ukraine
pending extradition. It considers that in the circumstances of the
case, these findings are equally pertinent to the applicant's
complaint under Article 5 § 4 of the Convention, as the
Government failed to demonstrate that the applicant had at his
disposal any procedure through which the lawfulness of his detention
could have been examined by a court. In particular, Article 165-2 of
the Code of Criminal Procedure provides that it is open to the
“prosecutor, suspect, accused or his or her defence counsel or
legal representative” to challenge the decision of the first
instance court. However, the applicant, as a person detained with a
view to extradition rather than a suspect in a criminal case, did not
belong to any of these categories. As to Articles 106 and 382 of the
Code they equally refer to the situations of and parties to domestic
criminal proceedings and not specifically to extradition proceedings.
The Government have not indicated how Articles 106, 165-2 and 382 of
the Code of Criminal Procedure could provide the review required by
Article 5 § 4. Furthermore, in connection with an action for
compensation based on the finding that the applicant's detention
before 10 January 2007 had violated his rights, and again as noted
above, the detention in question had ended by the time the applicant
was aware of the decisions in question, and the court dealing with an
action for compensation would not have been capable to order his
release. It could not therefore have constituted the “proceedings”
foreseen by Article 5 § 4, either.
The foregoing
considerations are sufficient to enable the Court to dismiss the
Government's preliminary objections and to conclude that there has
been a violation of Article 5 § 4 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The applicant did not
submit a claim for just satisfaction. Accordingly, the Court
considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins
to the merits the Government's contention concerning the
exhaustion of domestic remedies in respect of the applicant's
complaint under Article 5 § 4 of the Convention; and rejects it
after an examination on the merits;
2. Dismisses
the remainder of the Government's preliminary objections;
3. Declares
the complaints under Article 3, Article 5 §§ 1 (f) and 4,
Article 6 § 1 and Article 13 of the Convention concerning the
applicant's possible extradition to Turkmenistan and detention
pending extradition admissible and the remainder of the application
inadmissible;
Holds that the applicant's extradition to
Turkmenistan would be in violation of Article 3 of the Convention;
5. Holds
that there has been a violation of Article 13 of the Convention;
6. Holds
that it is not necessary to examine whether the applicant's
extradition to Turkmenistan would be in violation of Article 6 §
1 of the Convention;
Holds that there has been a violation of Article
5 § 1 (f) of the Convention;
8. Holds
that there has been a violation of Article 5 § 4 of the
Convention;
Holds that there is no need to examine the issue
of just satisfaction.
Done in English,
and notified in writing on 23 October 2008, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
