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DUBOVIK v. UKRAINE - 33210/07 [2009] ECHR 1551 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1551.html
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[2009] ECHR 1551
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FIFTH
SECTION
CASE OF DUBOVIK v. UKRAINE
(Applications
nos. 33210/07 and 41866/08)
JUDGMENT
STRASBOURG
15
October 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dubovik v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 33210/07 and 41866/08)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Belarusian national, Ms
Yekaterina Viktorovna Dubovik (“the applicant”), on 6
August 2007 and 6 August 2008 respectively.
The
applicant 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, from the Ministry of
Justice.
The
applicant alleged, in particular, that in the event of her
extradition to Belarus she would face the risk of torture and of an
unfair trial, that her detention was unlawful, that her applications
for release were not examined promptly and effectively by a court and
that she had no right to compensation for her detention.
On
3 November 2007 and 2 October 2008 respectively the President of the
Fifth Section decided to give notice of the applications to the
Government. On 3 September 2008 an additional question was put to the
Government concerning the applicant's complaint under Article 5 §
1 of the Convention. It was also decided to examine the merits of the
applications at the same time as their admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1978 and lives in Kyiv.
In
February 2005 the applicant left Belarus for Ukraine. From that time
on she has been residing in Ukraine with her family.
On
10 March 2006 the Deputy Prosecutor General of Belarus issued an
arrest warrant in respect of the applicant on suspicion of aggravated
trafficking in human beings and organised crime.
On
26 July 2007 the applicant was apprehended in Kyiv under an
international arrest warrant with a view to her extradition issued on
21 June 2007 and a Belarus Interpol Bureau letter of 15
July 2007 to the Ukrainian authorities informing them that the
applicant was on the territory of Ukraine and requesting them to find
and arrest her with a view to extradition. She was thus separated
from her newly-born child, who was exactly one month old when the
applicant was apprehended.
On
27 July 2007 the Golosiyivskyy District Court of Kyiv (“the
District Court”) ordered the applicant's detention for forty
days pending an official request for her extradition to Belarus. On
6 August 2007 the Kyiv City Court of Appeal upheld that
decision.
On
29 July 2007 the applicant applied for refugee status in
Ukraine.
On
27 August 2007 the General Prosecutor's Office of Ukraine (“the
GPO”) received an official request from the Deputy Prosecutor
General of Belarus for the applicant's extradition to Belarus with
the aim of prosecuting her for aggravated trafficking in human beings
and organised crime. The request contained detailed information about
criminal acts of which the applicant was suspected by the Belarusian
authorities, as well as assurances that the applicant would be
prosecuted only for these crimes, that she would be free to leave
Belarus after her trial and serving a sentence, and that she would
not be deported or expelled to any third country without Ukraine's
consent. No decision was taken with regard to the above request.
On
3 September 2007 the District Court ordered the applicant's continued
detention without a fixed time-limit and until the GPO had decided on
her extradition to Belarus. The Kyiv City Court of Appeal upheld this
decision on 13 September 2007.
On
12 September 2007 the President of
the Chamber decided to apply Rule 39, indicating to the Government
that the applicant should not be extradited to the Republic of
Belarus.
By
letter of 21 September 2007, the Belarusian General
Prosecutor's Office sent to the First Deputy Prosecutor General of
Ukraine assurances that, if extradited to Belarus, the applicant
would not be subjected to any kind of treatment prohibited by Article
3 of the Convention, that she would receive a fair trial, and that
the death penalty would not be applied in her case.
On
5 March 2008 the State Migration Committee (“the Committee”)
granted the applicant refugee status.
On
6 March 2008 the applicant received a refugee certificate.
On
7, 14 and 21 March 2008 the applicant's lawyer lodged applications
for her release with the District Court on the ground that the
applicant had refugee status and therefore could not be extradited.
By
letters of 12 and 31 March 2008, the District Court refused to
consider the applications for release on the ground that there was a
final and binding court decision ordering the applicant's detention
pending extradition and that it was the prosecution service that was
competent to decide whether there were grounds or not for the
applicant's detention.
On
18 April 2008 the GPO lodged an objection with the Committee against
its decision of 5 March 2008. The objection had the effect of
suspending the Committee's decision.
On
5 May 2008 the Committee rejected the GPO's objection and confirmed
its decision of 5 March 2008.
On
20 May 2008 the GPO made an objection to the decision of the
Committee on the applicant's refugee status to the Regional
Administrative Court of Kyiv (“the Kyiv Court”) and
requested the suspension of the Committee's decision.
On
26 June 2008 the applicant's lawyer lodged an application for the
applicant's release with the Kyiv Court under the Code of
Administrative Justice. No decision was taken on this application.
On
9 July 2008 the Kyiv Court rejected the request for suspension of the
Committee's decision pending the administrative proceedings.
On
21 July 2008 the Kyiv Court rejected the GPO's objection and
confirmed the lawfulness of the Committee's decision of 5 March 2008.
On
23 December 2008 the Kyiv Administrative Court of Appeal (the Court
of Appeal) overruled the decision of 21 July 2008 and cancelled the
Committee's decision of 5 March 2008.
On
28 January 2009 the Highest Administrative Court decided to initiate
the examination of the administrative case in cassation and suspended
execution of the decision of 23 December 2008.
On
23 February 2009 the General Prosecutor's Office of Belarus informed
their Ukrainian counterpart that the maximum eighteen-month
time-limit for the applicant's pre-trial detention had expired and
therefore her detention was replaced by an obligation not to abscond.
On this ground the Belarus authorities asked the GPO to leave the
extradition request without consideration and to release the
applicant.
On
25 February 2009 the Deputy Prosecutor General ordered the
applicant's release on the basis of the above request of the Belarus
General Prosecutor's Office. On the same day the applicant was
released.
On
1 April 2009 the Highest Administrative Court upheld the decision of
the Court of Appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Code of Civil Procedure, 1963 (no longer in force)
Article
248¹ of the Code (Chapter 31-A) provided in so far as relevant:
“Every citizen has the right to apply to court ...
with an application, should he consider that a decision, action or
inactivity of a public authority, legal person or official during the
exercise of their administrative functions has violated his rights or
freedoms”
2. The Code of Administrative Justice (in force since
1 September 2005)
The
relevant provisions of the Code read as follows:
Section 2
Task of the administrative justice system
“1. The task of the administrative justice system
is the protection of the rights, freedoms and interests of physical
persons, and the rights and interests of legal entities in the field
of public law relations from violations by public authorities ...
2. Any decisions, actions or inactivity of public
authorities can be appealed against in administrative courts, except
for cases in which the Constitution and laws of Ukraine foresee a
different procedure of judicial appeal against such decisions,
actions or inactivity ...”
Section 17
Competence of the administrative courts in deciding
administrative cases
“1. The competence of the administrative courts
shall cover:
...
3) disputes between public authorities ...
4) disputes following an application by a public
authority in the situations set forth by the law...
2. The competence of the administrative courts shall not
cover public law cases:
...
2. that shall be decided under the criminal justice
procedure ...”
Section 117
Securing an administrative claim
“1. The court, upon the request of the claimant or
of its own motion, can render a ruling on taking measures for
securing an administrative claim ...
3. The lodging of the administrative claim or the
initiation of administrative proceedings in the case does not suspend
the challenged decision of the public authority, but the court may,
in order to secure the claim,, suspend the decision by a ruling to
that effect ...
6. A ruling on securing an administrative claim can be
appealed against. An appeal against the ruling does not stop its
enforcement, and does not prevent further examination of the case.”
Final and transitional provisions
“...7. After the entry into force of this Code
applications and complaints that derive from administrative law
relations ... (Chapters 29-32 of the Code of Civil Procedure, 1963)
... shall be considered under the procedure established by this Code
...”
3. Prosecution Service Act of 1 December 1991 (with
amendments)
The relevant provisions of the Prosecution Service Act
provided:
Section 19
“Supervision over the compliance and application
of laws
“Supervision over the compliance and application
of laws covers:
1) compliance of acts issued by all bodies, enterprises,
institutions, organisations and public officials with the
requirements of the Constitution of Ukraine and laws in force ...”
Section 20
Competences of the prosecutor
“...Having established a violation of the law the
prosecutor or his deputy shall be competent:
1) to make objections to acts of ... ministries and
other central bodies of the executive power ...”
Section 21
Objection by the Prosecutor
“An objection to an act which contradicts the law
may be submitted by the prosecutor or his or her deputy to
the body that issued the act in question or to a
higher body ...
An objection by the prosecutor shall have the
effect of suspending the act objected to, and shall be subject to
compulsory consideration by the relevant body ... within ten days of
its receipt. The prosecutor shall be informed of the results of the
examination of his/her objection within the same time-limit.
Should the objection be rejected ... the prosecutor may
apply to a court to have the act declared unlawful. An application to
a court may be lodged within fifteen days of receipt of the
notification of rejection of the objection ... The lodging of such an
application shall suspend the legal act in question.”
4. Refugees Act of 21 June 2001
Section
3 of the Act read:
Section 3
Prohibition of expulsion or forced return of a refugee
to the country from which he came and where his life or freedom is
endangered
“No
refugee may be expelled or forcibly returned to a country where his
or her life or freedom is threatened for reasons of race, religion,
ethnicity, nationality, membership of a particular social group or
political opinion.
No refugee
may be expelled or forcibly returned to a country where he or she may
suffer torture and other severe, inhuman or degrading treatment or
punishment, or to a country from where the refugee may be expelled or
forcibly returned to a country where his or her life or freedom is
threatened for reasons of race, religion, ethnicity, nationality,
membership of a particular social group or political opinion.
This Article shall not apply to refugees convicted of a
serious crime in Ukraine.”
5. The
Act “on the procedure for the compensation of damage caused to
a citizen by the unlawful actions of bodies of inquiry, the pre-trial
investigative authorities, prosecutors and courts” of
1 December 1994 (with amendments)
The relevant provisions of the Act provide:
Section 1
“Under the provisions of this Law a citizen is
entitled to compensation for damage caused by:
(1) unlawful conviction, unlawful indictment, unlawful
arrest and detention, unlawful conduct of a search, seizure of
property during the investigation and trial, unlawful removal from
work (office) and other procedural actions that interfere with
citizens' rights;
(2) unlawful imposition of administrative arrest or
correctional labour, unlawful confiscation of property, unlawful
imposition of a fine;
(3) the unlawful conduct of search and seizure
activities foreseen by the Laws of Ukraine “on Search and
Seizure Activities”, “on Organisational Legal Basis for
Combating Organised Crime” and other legal acts.
In the cases indicated in part 1 of this Section, the
damage sustained shall be compensated in full irrespective of the
guilt of the officials of the bodies of inquiry, the pre-trial
investigative authorities, prosecutors and courts.”
Section 2
“The right to compensation for damage in the
amount of and in accordance with the procedure established by this
Law shall arise in cases of:
(1) acquittal by a court;
(1-1) the finding in a judgment by a court or other
decision by a court (except a ruling or decision of a court on
remittal of the case for further investigation or for retrial) of the
fact of unlawful indictment, unlawful arrest and detention, unlawful
conduct of search, seizure of property during the investigation and
trial, unlawful removal from work (office) and other procedural
actions that interfere with citizens' rights, unlawful conduct of
search and seizure activities;
(2) the termination of a criminal case on the grounds of
the absence of proof of the commission of a crime, the absence of
corpus delicti, or a lack of evidence of the accused's
participation in the commission of the crime;
(3) the refusal to initiate criminal proceedings or the
termination of criminal proceedings on the grounds stipulated in
paragraph 2 of part 1 of this section;
(4) the termination of proceedings for an administrative
offence.
The right to compensation for damage caused by the
search and seizure activities indicated in section 1 of this Law,
conducted prior to the institution of criminal proceedings, arises in
the cases set out in paragraph 1(1) of part 1 of section 1, or in
cases in which no decision was taken on instituting criminal
proceedings within six months of the conduct of such activities, as a
result of which such activities ... were cancelled.”
Section 3
“In the cases referred to in section 1 of this Law
the applicant shall be compensated for ...
(5) non-pecuniary damage.”
Section 4
“... Compensation for non-pecuniary damage shall
be awarded in cases in which unlawful actions by bodies of inquiry,
pre-trial investigative authorities, prosecutors and courts have
caused non-pecuniary losses to a citizen, led to disruption of his or
her usual relations and required additional efforts for the
organisation of his or her life.
Non-pecuniary damage shall be defined as the suffering
caused to a citizen due to physical or psychological influence which
resulted in a deterioration or deprivation of his or her ability to
act in accordance with his or her usual habits and wishes, a
deterioration of relations with the people around him or her, and
other adverse effects of a non-pecuniary nature.”
5. Other relevant legislation
Other
relevant domestic law and practice is summarised in the judgments
Soldatenko v. Ukraine (2440/07, §§ 21-29 and 31,
23 October 2008) and Svetlorusov v.
Ukraine (2929/05, § 32-34,
12 March 2009).
THE LAW
I. JOINDER OF THE APPLICATIONS
Pursuant
to Rule 42 § 1 of the Rules of Court, the Court
decides to join the applications, given their common factual and
legal background.
II. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE
CONVENTION
The
applicant complained that her extradition to Belarus would expose her
to a risk of torture and unfair trial, contrary to Articles 3 and 6
of the Convention, and that she had no remedy with respect to these
complaints as required by Article 13 of the Convention. Articles 3, 6
§ 1 and 13 of the Convention read, in so far as relevant, as
follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 6 § 1
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
After
the extradition proceedings were discontinued at the request of the
Belarus authorities and the applicant was released, the Government
submitted that the applicant lost her status of a potential victim.
The
applicant submitted that the risk of her extradition to Belarus
persisted and that nothing prevented the General Prosecutor's Office
of Belarus from requesting her extradition again.
The
Court notes that the extradition proceedings were discontinued
without any decision to extradite having been taken by the Ukrainian
GPO. Although the possibility of the renewal of such extradition
proceedings against the applicant cannot be excluded, there is
nothing to suggest that the applicant is at an imminent risk of
removal from the Ukrainian territory or that any valid decision by
the Ukrainian authorities on such removal exists at the moment.
Accordingly,
given that the applicant's complaints under Article 3 and 6 of the
Convention concerned Ukraine's responsibility under the Convention
for events which might happen in Belarus if she were extradited or
otherwise removed and that there is now no risk of removal, the
applicant cannot claim to be a victim of a violation of her rights
under Articles 3 and 6 § 1 of the Convention as
required by Article 34 of the Convention. In the absence of any
arguable claim under Articles 3 and 6 of the Convention, the Court is
not required to consider whether there were effective domestic
remedies, as required by Article 13, for the above complaints. It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
Alleging
that the Ukrainian authorities had had no grounds for reasonable
suspicion that she had committed a crime, the applicant complained
that her detention prior to receipt of the extradition request had
been contrary to Article 5 § 1 (c). She also
alleged that her detention on 26 July 2007 had had no legal
basis, since it had not been warranted by a judicial decision and had
not been aimed at preventing or discontinuing a crime. The applicant
further complained under Article 5 § 1 of the Convention that
her detention had been unlawful. She considered that her detention
until 5 March 2008 and then between 18 April and 5 May 2008, when the
GPO suspended her refugee status, was not in compliance with Article
5 § 1 (f). She further considered that since the date when she
received refugee status, with the exception of the above-mentioned
period when it was suspended, none of the grounds listed in Article 5
§ 1 of the Convention was applicable to her detention, as the
domestic law prohibited removal of refugees from the territory of
Ukraine.
Relying
on Article 5 §§ 4 and 5 of the Convention,
the applicant complained that Ukrainian law provided no possibility
of taking proceedings by which the lawfulness of her detention could
be reviewed and of obtaining redress if that detention was found
unlawful.
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...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
1. Government's objections
(a) Incompatibility ratione personae
The
Government maintained that the applicant had not claimed to be a
victim under Article 5 § 1 (f) of the Convention with respect to
the initial period of her detention, as she had maintained that her
detention between 26 July and 27 August 2007 was primarily in
violation of Article 5 § 1 (c).
The
applicant submitted that this complaint was admissible, given that
the substance of the alleged violation had been indicated, although
the qualification of the facts under the particular subparagraph of
Article 5 § 1 was disputable. She further noted that such
qualification was not always obvious. She also observed that in
previous cases against Ukraine, in which similar complaints had been
made concerning applicants' detention pending extradition, the Court
had accepted such complaints and examined them under Article 5 §
1 (f) despite the applicants' reference to Article 5 § 1 (c)
(see, for example, Soldatenko v. Ukraine, no. 2440/07, §§
98-103, 23 October 2008)
The
Court observes that in the instant case the applicant initially
complained that her detention had been unlawful. It is true, as the
Government note, that she analysed the detention by reference to
Article 5 § 1 (c) of the Convention, rather than Article 5
§ 1(f), but the erroneous reference to subparagraph (c) of
Article 5 § 1 does not prevent the Court, which is master of the
characterisation to be given in law to the facts of the case (see
Nadtochiy v. Ukraine, no. 7460/03, § 31, 15 May 2008),
from examining the problem raised by the applicant under the
Convention provision which the Court finds relevant to the
circumstances of the case. The Court therefore dismisses this
objection of the Government.
48. The
Court notes that no other reason, except extradition, has ever been
advanced by the authorities for the applicant's detention and there
is no evidence in the case file to suggest that any other reason has
ever existed. Therefore, notwithstanding the applicant's submissions
to the contrary, her detention prior to 5 March 2008 was always with
a view to extradition and her complaint about this period of her
detention falls to be considered under Article 5 § 1
(f) of the Convention (see Soldatenko, cited above, §
99).
(b) Non-exhaustion of domestic remedies
The
Government maintained that the applicant had at her disposal an
effective procedure under Article 5 § 4 of the Convention to
challenge the lawfulness of her detention. 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 any action that
the prosecutor took within the extradition proceedings.
They
further contended that depending on the outcome of the administrative
proceedings, the applicant would be able to claim compensation under
the Act “on
the procedure for the compensation of damage caused to citizens by
the unlawful actions of bodies of inquiry, pre-trial investigative
authorities, prosecutors and courts”.
Therefore,
they considered that the applicant had failed to exhaust the remedies
available to her under Ukrainian law.
The
applicant disagreed.
The Court finds that the Government's contentions
concerning non-exhaustion are so closely linked to the merits of the
applicant's complaints under Article 5 §§ 4 and 5 that they
should be joined to them and considered together.
2. Conclusion
The
Court therefore joins to the merits the Government's contentions
about the availability and effectiveness of remedies for the
applicant's complaints under Article 5 §§ 4 and 5. The
Court notes that the complaints under Article 5 §§ 1 (f), 4
and 5 are not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention. It further notes that they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
1. Article 5 § 1 of the Convention
a) Period between 26 July 2007 and 5 March
2008.
The
parties submitted arguments similar to those made in the cases of
Soldatenko (cited above, §§ 104-107) and Svetlorusov
(cited above, §§ 43-46). In particular the
Government contended that the clear and foreseeable procedure for the
applicant's detention awaiting extradition was provided by the
Constitution of Ukraine, the CIS Convention on Legal Assistance and
Legal Relations in Civil, Family and Criminal Matters 1993 (“the
Minsk Convention”), the Code of Criminal Procedure and
Resolution no. 16 of the Plenary Supreme Court of 8 October 2004 on
certain issues relating to the application of legislation governing
the procedure and length of detention (arrest) of persons awaiting
extradition.
The
Court has previously found violations of Article 5 § 1 of the
Convention in cases raising issues similar to those in the present
case (see Soldatenko, cited above, §§ 109-114, and
Svetlorusov, cited above, §§ 47-49). These
findings were primarily based on the lack of a sufficient legal basis
for the applicants' detention pending extradition proceedings.
Having
examined all the materials submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
There has accordingly been a violation of Article 5 § 1 of the
Convention in this connection.
b) The period between 5 March 2008 and 25
February 2009
The
Government maintained that the applicant's extradition was impossible
due to the interim measure indicated by the Court. They also observed
that the decision on the applicant's refugee status had been
cancelled by the Kyiv Administrative Court of Appeal. They also
repeated their reasoning with respect to the first period in question
(see paragraph 55 above).
The
applicant maintained that from 5 March to 18 April 2008, from 5 May
to 23 December 2008 and from 28 January to 1 April 2009, the decision
on her refugee status had been valid and the ban on her extradition
under the law had been in force. Therefore, she considered that her
detention had been unlawful in general and in the above periods it
had not fallen under any permissible grounds of detention set forth
in paragraph 1 of Article 5 either.
The
Court first notes that its interim measure concerned the applicant's
removal from Ukraine, and did not require her detention. Without
more, it cannot therefore provide a basis in domestic law for the
applicant's detention. The Court next notes that it has already found
that domestic law did not provide a sufficient legal basis for the
applicants' detention pending extradition proceedings in the period
from 26 July 2007 to 5 March 2008 (see paragraph 56 above with
further references). Those findings are equally pertinent for the
period in question, in respect of which there was also no adequate
legal basis in domestic law.
In
addition, on 5 March 2008 the applicant was granted refugee status,
and this status was uncontested until 18 April 2008. Notwithstanding
the protection in domestic law from removal of a person with refugee
status (see paragraph 33 above), the applicant remained in detention.
The Government have not explained how, if the applicant could not be
removed, her detention could have been “with a view to
extradition” within the meaning of Article 5 as regards the
period from 5 March 2008 to 18 April 2008.
There
has accordingly been a violation of Article 5 § 1 of the
Convention with respect to this period of the applicant's detention
too.
2. Article 5 § 4
The
parties submitted arguments similar to those made in the cases of
Soldatenko (cited above, §§ 116-120) and Svetlorusov
(cited above, §§ 52-56). In particular the
Government referred to the provisions of the Code of Criminal
Procedure that regulated pre-trial detention in Ukraine. They also
referred to the Code of Administrative Justice, which set forth the
procedure for appealing against the actions of public authorities and
maintained that the applicant could have challenged the lawfulness of
her detention and had actually tried to do so, but the proceedings
had still been pending.
The
applicant claimed that the domestic courts had refused to review the
lawfulness of her detention and the last application for release
referred to by the Government was not considered until the applicant
had been released on other grounds.
The
Court has previously found violations of Article 5 § 4 of the
Convention in cases raising issues similar to those in the present
case (see Soldatenko, cited above, §§ 125-127, and
Svetlorusov, cited above, §§ 57-59).
The
Court further observes that the Government also referred to 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. This provision guarantees to everyone the right to
challenge any decisions, actions and omissions of the State
authorities in the administrative courts. 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 Court has previously been furnished with cases in which the
domestic courts found that the Code of Administrative Justice 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 ( Soldatenko, cited above, §§ 46
and 49). The Court also notes that the applicant made a complaint
under the Code of Administrative Justice on 26 June 2008, but that by
her release in March 2009 the complaint had not been dealt with.
Lastly,
in the instant case, despite a significant change of circumstances
and apparent lack of grounds for the applicant's detention due to a
statutory ban on her removal, the domestic courts on several
occasions refused to look again into the reasonableness of the
applicant's detention on the ground that there was a final and
binding court decision of 3 September 2007 ordering the applicant's
detention pending extradition (see paragraph 18 above), therefore
denying the applicant's right to a review of the lawfulness of her
detention as guaranteed by Article 5 § 4. In the Court's
view, there was thus no adequate judicial response to the applicant's
complaints, contrary to the requirements of Article 5 § 4 (see,
mutatis mutandis, Yeloyev v. Ukraine, no. 17283/02, §
65, 6 November 2008).
The
Court concludes that remedies invoked by the Government are not
sufficiently certain to satisfy the requirements of Article 5 §
4. Therefore, it rejects the Government's preliminary objection
concerning necessity to appeal against detention under the Code of
Administrative Justice and considers that there has been a violation
of Article 5 § 4 of the Convention.
3. Article 5 § 5
In
the Government's view the applicant had effective compensatory
remedies under Ukrainian law. They referred to Article 248¹ of
the Code of Civil Procedure, which enabled every person to challenge
in the courts decisions, acts or omissions of the authorities
during the exercise of their administrative functions, if the
person considered that they violated his or her rights and freedoms.
They further maintained that the applicant could also claim damages
under the Law
of Ukraine “on the procedure for the compensation of damage
caused to citizens by the unlawful actions of bodies of inquiry,
pre-trial investigative authorities, prosecutors and courts”,
should her detention be found unlawful.
70. The
applicant maintained that the remedies invoked by the Government were
not effective.
71. The
Court reiterates that Article 5 § 5 of the Convention is
complied with where it is possible to apply for compensation in
respect of a deprivation of liberty effected in conditions contrary
to paragraphs 1, 2, 3 or 4 of that Article (see Wassink v.
the Netherlands, 27 September 1990, § 38, Series A no.
185 A, and Vachev v. Bulgaria, no. 42987/98, § 79,
ECHR 2004 ... (extracts)). The right to compensation set forth
in paragraph 5 therefore presupposes that a violation of one of
the preceding paragraphs of Article 5 has been established, either by
a domestic authority or by the Court.
In
so far as the Court has found that there have been violations of
Article 5 §§ 1 and 4 of the Convention, Article 5 § 5
of the Convention is also applicable (see Steel and Others v. the
United Kingdom, 23 September 1998, § 81, Reports
1998-VII, p. 2740). The Court must therefore establish whether
Ukrainian law afforded the applicant an enforceable right to
compensation for the breaches of Article 5 of the Convention.
The
Court notes that the first remedy invoked by the Government has been
previously analysed in the case of Svetlorusov (cited above, §
68) and found not to be sufficiently certain to satisfy the
requirements of Article 5 § 5 of the Convention. Furthermore,
the relevant Chapters of the Code of Civil Procedure, 1963, including
Article 248¹ were no longer in force as from 1 September 2005,
when the Code of Administrative Justice entered into force (see the
final and transitional provisions, cited at paragraph 31 above) and
therefore are not applicable to the facts of this case.
As
to the second remedy invoked by the Government, the Court notes that
the Government have not submitted any decisions in which the remedy
they referred to has been used, in particular in the case of
detention with a view to extradition. From the text of the Act
“on the procedure for the compensation of damage caused to
citizens by the unlawful actions of bodies of inquiry, pre-trial
investigative authorities, prosecutors and courts” it appears
that it deals with criminal proceedings in Ukraine and makes no
reference to other situations in which a person is deprived of
liberty. Furthermore, it appears that the
domestic courts did not consider the applicant's deprivation of
liberty as being in breach of the domestic law, although, as
mentioned above, the Government have not shown that a law exists
which would satisfy the requirements of Article 5 §§ 1 (f)
and 4 of the Convention (see paragraphs 57 and 62 above). Given this
situation, the applicant does not appear to have had even a
theoretical opportunity to claim compensation in the domestic
proceedings (see, Svetlorusov v. Ukraine,
cited above, § 69). The Court therefore concludes that
this remedy invoked by the Government is not sufficiently certain to
satisfy the requirements of Article 5 § 5 of the Convention
either. The Government's objection as to non-exhaustion of this
remedy must accordingly be rejected too.
The
Court thus finds that Ukrainian law does not afford the applicant an
enforceable right to compensation, as required by Article 5 § 5
of the Convention; therefore it rejects the Government's preliminary
objection and concludes that there has been a violation of that
provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government considered these claims exorbitant and unsubstantiated and
that a finding of a violation, if any, would be sufficient just
satisfaction in the present case.
The
Court considers that the applicant suffered non-pecuniary damage on
account of her unlawful detention, damage which cannot be compensated
by the mere finding of a violation of her Convention rights. Having
regard to the circumstances of the case and ruling on an equitable
basis, as required by Article 41, it awards her EUR 5,000 under this
head.
B. Costs and expenses
The
applicant also claimed EUR 2,000 for costs and expenses.
The
Government maintained that the costs and expenses claimed by the
applicant were not supported by any documents.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the
Government's contention concerning the exhaustion of domestic
remedies in respect of the applicant's complaints under
Article 5 of the Convention; and rejected it after an examination on
the merits;
2. Declare the complaints under Article 5 §§ 1(f),
4 and 5 of the Convention admissible and the remainder of the
application inadmissible;
Hold that there has been a violation of Article
5 § 1 of the Convention;
Hold that there has been a violation of Article
5 § 4 of the Convention;
Hold that there has been a violation of Article
5 § 5 of the Convention;
Hold
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment became final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Ukrainian hryvnias at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
