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KABOULOV v. UKRAINE - 41015/04 [2009] ECHR 1903 (19 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1903.html
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[2009] ECHR 1903
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FIFTH
SECTION
CASE OF KABOULOV v. UKRAINE
(Application
no. 41015/04)
JUDGMENT
STRASBOURG
19 November 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 Kaboulov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Stephen Phillips, Deputy Section
Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 41015/04) 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 Amir Damirovich Kaboulov (“the
applicant”), on 22 November 2004.
The
applicant, who had been granted legal aid, was represented by Mr A.P.
Bushchenko, succeeded by Mr S.Y. Stavrov, both lawyers
practicing in Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev,
of the Ministry of Justice.
On
23 November 2004 the President of the Second Section indicated to the
respondent Government that the applicant should not be extradited to
Kazakhstan until further notice (Rule 39 of the Rules of Court).
He granted priority to the application on the same date (Rule 41 of
the Rules of Court).
On
28 April 2005 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).
The
applicant complained under Article 2 of the Convention that there was
a real risk that he would be liable to capital punishment in the
event of his extradition to Kazakhstan. He submitted that he would be
subjected to treatment contrary to Article 3 of the Convention, on
account of the possible application of the death penalty and the poor
conditions of detention in Kazakhstan, the lack of proper medical
treatment and assistance in detention facilities and the widespread
practice of torture of detainees. He further alleged, under Articles
5 §§ 1 (c) and (f), 2, 3 and 4, that his initial detention
on 23 August 2004 and the decision to extradite him taken by the
General Prosecution Service were unlawful. He also raised complaints
under Article 13 of the Convention, stating that there had been
no effective remedies for his complaints about his extradition in
violation of Articles 2 and 3 of the Convention. The
applicant also complained that he would be exposed to unfair trial,
if extradited to Kazakhstan, contrary to Article 6 § 1 of the
Convention. He further claimed that there was a breach of Article 34
of the Convention.
On 1 April 2006 this case was assigned to the newly
composed Fifth Section (Rule 25 § 1 and Rule 52 § 1 of the
Rules of Court).
On
17 January 2007 the Court decided to put additional questions to the
respondent Government concerning the application. It also decided
that the interim measure, indicated under Rule 39 of the Rules of
Court, should be maintained.
On
3 September 2008 the applicant submitted to the Court a letter in
which he requested the Court to strike the application out of the
list of cases as he wanted to be extradited to Kazakhstan. The letter
was sent with a covering letter signed by the SIZO Governor on the
same date, stating that it concerned the applicant’s request to
withdraw his application from examination by the Court. His mother
and the advocate later stated that this request by the applicant was
given under pressure from the domestic authorities and the Governor
of Kharkiv SIZO no. 27. On 6 November 2008 the applicant informed his
advocate, Mr Bushchenko, that he wished to pursue his application and
asked him to request the Court to expedite examination of his case.
He also stated that the SIZO Governor and officials of the State
Department for Enforcement of Sentences had put pressure on him to
withdraw his application. On 14 November 2008 the General
Prosecutor’s Office of Ukraine, which questioned the applicant
on behalf of the Agent of the Government, informed the Government’s
Agent that the applicant had written the letter of 3 September
2008 due to his continuous stay in detention and lack of a judgment
from the European Court. The General Prosecutor’s Office stated
that the applicant, after consulting his advocate on 6 November 2008,
wished to pursue examination of his case before the Court. They
further stated that the applicant had no complaints about the
administration of the SIZO.
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
facts of the case, as submitted by the parties, may be summarised as
follows.
A. Background to the case
The
applicant was born on 14 August 1979. The applicant claims to be
Mr Amir Damirovich Kubulov, a citizen of the Russian Federation. He
also claims that he has citizenship of the Republic of Kazakhstan.
The applicant is currently detained in the Poltava pre-trial
detention (“the Poltava SIZO”) of the State
Department for Enforcement of Sentences.
On
16 June 2003 an unidentified person murdered Zh.U.Zh. On the same
date the Ministry of the Interior of Kazakhstan launched a criminal
investigation into the murder.
On
28 June 2003 the applicant was accused in Kazakhstan, in his
absence, of having committed a crime under Article 96(1) of the
Criminal Code of Kazakhstan (murder). On the same date an
investigator the Ministry of the Interior decided that the applicant
should be detained.
On
4 July 2003 the Ministry of the Interior of Kazakhstan (“the
MIK”) issued an international search warrant for the applicant
on suspicion of his having committed aggravated murder, involving
capital punishment as a sanction (Article 96(2) of the Criminal Code
of Kazakhstan).
B. The applicant’s detention and main proceedings
related to the lawfulness of the applicant’s extradition
1. The applicant’s initial detention from 23
August to 13 September 2004
The
facts surrounding the applicant’s initial detention may be
summarised as follows.
It
was agreed by the parties that the applicant had been picked up at
9.20 p.m. on 23 August 2004 and detained thereafter,
although there was no agreement as to where and why the applicant was
detained. They provided various documents certifying what happened in
the period from 9.20 p.m. on 23 August 2004 to 7.30 p.m.
25 August 2004, which can be summarised as follows.
According to a document entitled “Record of
arrest based on suspicion of involvement in a crime” (“Протокол
о задержании
по подозрению
в совершении
преступления”;
hereafter - the “detention record”), issued by Major
Tsarruk of the Dniprovsky District Police Department of Kyiv, a
police patrol stopped the applicant, described as Amir Damirovich
Kubulov, born on 14 August 1979, residing at 86, Zenkova Street,
Almaty, Kazakhstan, on 23 August 2004 at 9.20 p.m. The detention
record was dated with the same date and time.
In
smaller print, in what appear to be standard blocks of text, the
following grounds for arrest (основания
задержания)
are set out:
“(...) 1. Person had been arrested at
the moment of committing a crime or in flagranto;
2. The witnesses of a crime and its victims
have identified this person as an offender;
3. Traces of crime were found on the suspect
or his clothes, with him or in his place of residence;
4. [There is] other data, giving grounds to
suspect the person in committing a crime, if he/she tried to escape
or has no permanent place of residence or when the identity of the
suspect has not been established.”
The
detention record also set out, again in small print, reasons for the
applicant’s arrest (мотивы
задержания):
“To prevent crime.
1. To prevent a possibility of disappearing
from the investigation and the court, ensuring enforcement of a
criminal sentence.
2. To prevent events which would hinder the
establishment of objective truth in the criminal case.”
The
detention record then noted, in large print, that the applicant was
suspected of involvement in the crime envisaged in Article 96 §
1 of the Criminal Code of Kazakhstan. The detention record was signed
by Major Tsarruk and stated that the applicant had been
“familiarised” with the reasons for his detention (the
applicant signed it and marked it stating that he familiarised with
it in Russian language - “ознакомлен”),
and with his rights and duties, as it was provided by Article 10 of
the Regulation “On temporary detention of persons suspected in
committing of crime”. It contained no exact date and time when
the applicant had been familiarised with the reasons for his
detention. After the applicant’s signature, the record stated
that the prosecutor had been informed about the applicant’s
arrest at 10.00 p.m. on 23 August 2004.
In their further observations of 13 March 2007 the
Government contended that after his apprehension at 9.20 p.m. on
23 August 2004 under Article 115 of the Code of Criminal
Procedure and Article 10 of the Regulation of 13 July 1976
“On the temporary detention of persons suspected of having
committed a criminal offence” (see paragraphs 65 - 67 below),
the applicant stayed at the Dniprovsky District Police Station. In
particular, they referred to the aforementioned detention record. The
Government also stated that the applicant had been familiarised with
the reasons for his detention after 10.00 p.m. on the same day. They
did not specify when.
In
their further observations of 23 May 2007 the Government stated that
the applicant was taken to the sobering up facility at 9.25 p.m. on
23 August 2004. They referred to a written reply of 4 April
2007 to a request of the Dniprovsky Prosecutor dated 28 March 2007.
In reply the centre’s director informed the District Prosecutor
that the applicant arrived at the facility at 9.25 p.m. on 23 August
2004 and left it at 7.30 a.m. on 24 August 2004. The director
also stated that the applicant had been diagnosed with acute alcohol
intoxication with perception, psychic and behavioural disorders.
According
to the medical card concluded by the sobering up facility (Kyiv City
Narcological Clinical Hospital “Sociotherapy” of the
Ministry of Health), the applicant arrived there at 9.25 p.m. on
23 August 2004. The medical card also provided that the
applicant’s diagnosis of alcohol intoxication and respective
disorders had been established on 24 August and that he had stayed in
the facility for two nights. The centre’s contemporaneous
records note the applicant as having been brought to the centre from
Malyshka street in the Dniprovsky District of Kyiv by a
Mr Kolomiyets. The card states that the applicant stayed at the
sobering up facility from 9.25 p.m. on 23 August 2004 to
7.30 a.m. on 25 August 2004, that is, for two nights.
On
24 August 2004 the MIK, in reply to request of the Ministry of the
Interior of Ukraine, confirmed to the Kyiv Department of the Interior
that the applicant was wanted as a murder suspect.
The
applicant, through his mother’s submissions to the Kyiv City
Court of Appeal (Апеляційний
суд міста Києва)
on 13 September 2004, contended that he had been taken directly to
the sobering up facility on 23 August 2004 as he had no identity
papers with him, and, in his observations of 21 October 2005 he
stated that the detention record dated 9.20 p.m. on 23 August 2004
had been prepared only after his identity had been established and
the authorities were aware that the applicant was wanted by the law
enforcement authorities of Kazakhstan.
On
3 September 2004 the MIK established that Mr Kaboulov was a
citizen of Kazakhstan.
On
the same date the General Prosecutor’s Office (“GPO”)
of Ukraine informed the Kazakhstan GPO that the applicant had been
apprehended in Ukraine and asked whether Kazakhstan intended to seek
the applicant’s extradition.
After
his return to the police station, the applicant made an “explanatory
statement” to a prosecutor, dated 8 September 2004, which was
written for him in Ukrainian by the senior assistant of Kyiv
prosecutor. The applicant confirmed its contents in Russian
(“записано
верно”).
After stating that he had not committed any criminal offences, he
added without mentioning any exact times, that he had been stopped by
police officers on 23 August 2004, who took him to the sobering-up
facility and after that to the police station, where he remained.
On
10 September 2004 the Deputy Prosecutor of Kyiv informed the
Extradition Department of the GPO of Ukraine of the details as to the
applicant’s identity. In particular, it was established that
the applicant’s name was Mr Amir Damirovich Kaboulov
and that he was a citizen of Kazakhstan only. The information also
stated that he committed no crimes on the territory of Ukraine and
did not have refugee status.
On
13 September 2004 the Dniprovsky prosecutor and the head of the
Dniprovsky District Department of the Interior lodged a petition with
the Dniprovsky District Court of Kyiv (“the Dniprovsky Court”;
Дніпровський
районний суд
міста Києва)
seeking a warrant for the applicant’s detention in SIZO no. 13
of the State Department for Enforcement of Sentences.
On
the same day the Dniprovsky Court, in the presence of the prosecutor
and after having heard the applicant, issued a warrant for the
applicant’s detention on the grounds that there was a search
warrant in respect of him in Kazakhstan and that the Ukrainian
authorities were awaiting documents from the Kazakh authorities for
his extradition to Kazakhstan. The court found that the applicant had
been picked up drunk at Malyshka street by the police at 9.20 p.m. on
23 August 2004. The court noted that the applicant had
explained to the police officers at the time of his arrest that he
resided in Kyiv without registration. The court decided to detain the
applicant in SIZO no. 13, and also ruled that the
applicant’s detention was not to exceed 30 days (that is,
until 12 October 2004). The сourt
further decided that the applicant should be detained on the basis of
Articles 60 – 62 of the Minsk Convention, as he was to be
extradited to Kazakhstan. The Court also referred to Articles 165 §§
1 and 2 of the Code of Criminal Procedure. The applicant was informed
of the possibility of lodging an appeal.
2. Main proceedings related to the lawfulness of the
applicant’s detention pending extradition
On
16 September 2004 the GPO of Kazakhstan requested the GPO of Ukraine
to detain the applicant pending extradition.
On
18 September 2004 the GPO of Kazakhstan, by letter, confirmed the
search warrant in respect of the applicant and requested his
extradition to Kazakhstan on the grounds that on 30 June 2003 the
applicant had been charged with non-aggravated murder (Article 96 §
1 of the Criminal Code) of Zh.U.Zh. They also stated that criminal
proceedings had been pending against the applicant since 16 June
2003 and he had been on the wanted list since 28 June 2003. The GPO
of Kazakhstan assured the Ukrainian authorities that the applicant
would not be prosecuted for criminal offences different from those
mentioned in the extradition proceedings without the consent of the
Ukrainian authorities.
On
2 December 2004 the GPO of Kazakhstan, again by letter, gave
additional assurances confirming that the applicant would not be
liable to the death penalty in Kazakhstan and that his rights and
lawful interests in the course of criminal proceedings would be
adequately protected. They mentioned inter alia a moratorium
on executions imposed by the Presidential Decree of 17 December 2003
until full abolition of the death penalty.
On
23 and 24 September 2004 the applicant’s mother and his
advocate in the domestic proceedings (Mr Priduvalov), respectively,
appealed against the order of the Dniprovsky Court of
13 September 2004. They requested that the applicant be
released subject to an undertaking not to abscond, until the
applicant’s identity had been verified. In particular, they
claimed that the applicant was not a citizen of Kazakhstan, but a
citizen of the Russian Federation and that the order referred to a
different person. They also requested an extension of the time-limit
for lodging an appeal as the applicant had not been informed about
the possibility of doing so in good time.
On
27 September 2004 the Deputy Prosecutor General of Ukraine informed
the GPO of Kazakhstan that the GPO of Ukraine agreed to extradite the
applicant. The letter mentioned the need to organise the applicant’s
transfer to Kazakhstan. By a separate letter written on the same
date, the Deputy Prosecutor General informed the Ministry of the
Interior, the SDES and the Deputy Prosecutor of Kyiv that he approved
the applicant’s extradition and his transfer to Kazakhstan
under guard.
On
5 and 10 October 2004 the applicant’s lawyers (Mr Priduvalov
and Ms Shevchenko) appealed against the failure of the judge of the
Dniprovsky Court to pursue the appeal proceedings asked for by the
applicant’s mother and lawyer on 23 and 24 September 2004. On
7 October 2004 the Kyiv City Court of Appeal refused to
consider the appeal on the grounds that it had been lodged out of
time, and remitted it for a decision on its admissibility to the
first-instance court (Articles 165 (2), sub-paragraphs
7 and 353 of the Code of Criminal Procedure), which on
16 November 2004 rejected the appeals lodged by the applicant’s
mother and Mr Priduvalov as his mother had no standing in the
proceedings and the appeal had been lodged out of time, respectively.
This ruling was not appealed.
On
14 October 2004 the applicant’s mother requested the Governor
of SIZO no. 13 to release the applicant from detention on the grounds
that he was detained unlawfully.
On
15 October 2004 the applicant’s advocate lodged a complaint
with the Shevchenkivsky District Court of Kyiv (“the
Shevchenkivsky Court”; Шевченківський
районний суд
міста Києва)
requesting that the applicant be released from SIZO no. 13.
On
23 October 2004 the applicant was transferred to Kharkiv SIZO no. 27
with a view to his further transfer to the competent authorities of
the Russian Federation which were to hand the applicant over to the
law-enforcement authorities of Kazakhstan.
On
24 November 2004 the applicant’s extradition was suspended by
the GPO of Ukraine, following the interim measure indicated to the
Government of Ukraine under Rule 39 of the Rules of Court on
23 November 2004.
On
6 January 2005 the applicant lodged complaints with the Dniprovsky
Court seeking a finding that his detention in Kharkiv SIZO no. 27
was unlawful. On 18 January 2005 the court refused to accept the
applicant’s complaint as it had been lodged with the wrong
court, contrary to the requirements as to territorial jurisdiction.
On
11 April 2005 the applicant’s lawyer, Mr Bushchenko, informed
the Court that the applicant had requested refugee status in Ukraine
and that this request was being examined.
C. Various judicial proceedings against the decisions
to detain the applicant and to extradite him
1. Proceedings relating to the lawfulness of the
applicant’s detention in SIZO no. 27
On
30 November and 1 December 2004 the applicant’s mother lodged
administrative complaints with the Zhovtnevy District Court of
Kharkiv (“the Zhovtnevy Court”;
Жовтневий
районний суд
міста Харкова)
requesting the applicant’s release and a finding that the
inactivity of the Governor of Kharkiv SIZO no. 27 in examining the
applicant’s complaints about his continued detention had been
unlawful.
On 10 December 2004 the court refused to consider the
complaint as it had been lodged under the Code of Civil Procedure.
The court suggested that the applicant should re-lodge the complaint
under Article 106 of the Code of Criminal Procedure (detention of a
criminal suspect by the investigating body) as it concerned his
detention and the criminal proceedings instituted against him in
Kazakhstan.
On
24 March 2005 the Kharkiv Regional Court of Appeal
(Апеляційний
суд Харківської
області)
quashed the ruling of 10 December 2004 and decided not to
examine the applicant’s mother’s complaints as she had no
standing in the criminal proceedings against her son.
No
appeal on points of law was lodged with the Supreme Court against
this ruling.
2. Proceedings against GPO of Ukraine relating to the
lawfulness of the applicant’s detention
On
7 and 10 December 2004 the applicant’s lawyer in the domestic
proceedings (Ms Shevchenko) and the applicant’s mother
each lodged a complaint with the Pechersky District Court of Kyiv
(“the Pechersky Court”; Печерський
районний суд
м. Києва) against the
GPO of Ukraine requesting that the applicant’s extradition to
Kazakhstan be prohibited. They also asked the court to declare the
GPO of Ukraine’s decision to extradite the applicant unlawful.
They referred, inter alia, to Articles 5, 6, 7 and 13 of the European
Convention on Human Rights, Article 55 of the Constitution of Ukraine
and various provisions of the Code of Civil Procedure. A hearing in
the Pechersky Court was scheduled to take place on 26 January
2005, but was adjourned to 28 January 2005.
On
28 January 2005 the Pechersky Court, in the absence of the
representatives of the GPO of Ukraine, allowed the applicant’s
complaints, declared the decision to extradite the applicant to
Kazakhstan unlawful and prohibited the GPO of Ukraine from
extraditing the applicant.
On
28 February 2005 the GPO of Ukraine lodged an appeal with the Kyiv
City Court of Appeal against the aforementioned judgment, requesting
that the case be remitted for fresh consideration to the
first instance court. They mentioned in the appeal that the
applicant had been detained in Kyiv on 23 August 2004. On 14 and
17 March 2005 the applicant lodged counter-arguments against the GPO
of Ukraine’s appeal, referring inter alia to various
provisions of the domestic and international law, including
Article 5 § 1(f) of the Convention and Article 106 of
the Code of Criminal Procedure.
On 27 May 2005 the Kyiv City Court of Appeal examined
the GPO of Ukraine’s appeal, quashed the decision of the
Pechersky Court of 28 January 2005 and remitted the case for
fresh consideration. In particular, it found that the Pechersky
Court’s judgment of 28 January 2005 had been adopted in the
absence of the GPO of Ukraine’s representatives, who had not
been duly informed of the date and time of the hearing in the case,
as required by Article 307 of the Code of Civil Procedure.
On
1 July 2005 the Pechersky Court terminated the proceedings on the
grounds that the applicant had failed to comply with the procedure
prescribed by law for introducing complaints in criminal proceedings.
In particular, the court found that the complaints against the GPO of
Ukraine should be examined in the course of criminal proceedings, in
accordance with the procedural rules of the Code of Criminal
Procedure (paragraphs 7 and 8 of Article 106 of the Code) and not as
administrative complaints under the Code of Civil Procedure.
On
22 September 2005 the Kyiv City Court of Appeal upheld the ruling of
1 July 2005, finding it to be lawful. In particular, it referred
to resolution no. 16 of the Plenary Supreme Court of 8 October 2004
and the relevant provisions of the Code of Administrative Justice
(Articles 199, 200, 205 and 206), stating that as the applicant
complained about lawfulness of his detention and his possible
extradition, he had to appeal against it to the court in accordance
with the rules enshrined in the Code of Criminal Procedure and the
relevant provisions of the international treaty, which were
applicable to extradition.
On 12 October 2005 the applicant appealed on points of
law to the Higher Administrative Court against the ruling of
22 September 2005. The outcome of these proceedings is unknown.
3. Proceedings relating to the lawfulness of the
applicant’s detention in SIZO no. 27
On
20 December 2004 the applicant lodged complaints with the Zhovtnevy
Court seeking a declaration that his detention in Kharkiv SIZO no.
27 was unlawful. He referred to Articles 29 and 55 of the
Constitution, and Article 5 §§ 1, 3, 4 and 5 of the
Convention. In particular, he alleged that the time-limit for his
detention had expired on 12 October 2004 (thirty days after
13 September 2004, the date of the decision of the Dniprovsky
Court to detain him).
On
25 January 2005 the court resumed the examination of the applicant’s
appeal. The hearing was adjourned until 7 February 2005 owing to the
failure of the applicant’s representative to appear before the
court.
On 7 February 2005 the court decided to adjourn the
examination of the applicant’s appeal in order to obtain
further evidence from the Pechersky Court and the GPO of Ukraine. The
next hearing was scheduled for 4 March 2005, when the proceedings
were again adjourned for the same reason.
On
14 April 2005 the court adjourned the proceedings pending the
examination of the GPO of Ukraine’s appeal against the decision
of the Pechersky Court of 28 January 2005 (see paragraph 50 above).
On
7 September 2005 the Zhovtnevy Court rejected the applicant’s
complaints. In particular, it found that the applicant was detained
in Kharkiv SIZO no. 27 not on the basis of the decision of the
Dniprovsky Court of 13 September 2004, but on the basis of the
extradition warrant (санкція)
by the Deputy Prosecutor General and his decision to transfer the
applicant under guard (етапувати
та конвоювати)
to Kazakhstan (see paragraph 36 above).
Furthermore, the court referred to the fact that the extradition had
been suspended in view of the proceedings pending before the European
Court of Human Rights. It therefore found the applicant’s
detention to be lawful. It referred inter alia to Article 29
of the Constitution of Ukraine, Articles 56 – 62 of the Minsk
Convention, Articles 165(1) and 165(2) of the Code of Criminal
Procedure, as well as Article 5 §§ 1, 3 and 4 of the
Convention. It also held that the applicant’s name was “Amir
Damirovich Kaboulov” and that he was a citizen of the Republic
of Kazakhstan.
On
14 October 2005 the Zhovtnevy Court forwarded the case file to the
Kharkiv Regional Court of Appeal with a view to the hearing of the
applicant’s appeal which was scheduled for 15 November 2005.
The outcome of these proceedings is unknown.
II. RELEVANT LAW AND PRACTICE
A. Relevant Ukrainian domestic law and practice
The
relevant domestic law and practice, including the relevant provisions
of the Constitution of Ukraine, Codes of Civil and Criminal Procedure
and the Code on Administrative Justice and the relevant extracts from
the Supreme Court’s practice, are summarised in the judgment of
Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31, 23
October 2008).
B. Other domestic normative acts in force at the
material time
1. Constitution of Ukraine, 28 June 1996
Article
29 of the Constitution of Ukraine reads as follows:
“Every person has the right to freedom and
personal inviolability.
No one shall be arrested or held in custody other than
pursuant to a substantiated court decision and only on the grounds
and in accordance with the procedure established by law.
In the event of an urgent necessity to prevent or stop a
crime, bodies authorised by law may hold a person in custody as a
temporary preventive measure, the reasonable grounds for which shall
be verified by a court within seventy-two hours. The detained person
shall be released immediately, if he or she has not been provided,
within seventy-two hours from the moment of detention, with a
substantiated court decision in regard to the holding in custody.
Everyone arrested or detained shall be informed without
delay of the reasons for his or her arrest or detention, apprised of
his or her rights, and from the moment of detention shall be given
the opportunity to personally defend himself or herself, or to have
the legal assistance of a defender.
Everyone detained has the right to challenge his or her
detention in court at any time.
Relatives of an arrested or detained person shall be
informed immediately of his or her arrest or detention.”
2. CIS Convention on legal assistance of 22 January
1993 (with amendments dated 1998)
The
relevant provisions of the Convention are summarised in the judgment
of Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31,
23 October 2008), and Ryabikin v. Russia (no.
8320/04, § 104, 19 June 2008). Other relevant
extracts from the Convention read as follows:
Article 60
Detention pending extradition
“The requesting Contracting Party shall
immediately adopt the necessary measures for detention of a person
whose extradition is requested, except in circumstances in which the
person cannot be extradited.”
Article 80
Procedural relations with regard to extradition and
criminal prosecution
“Procedural relations with regard to extradition,
criminal prosecution, and enforcement of investigative sanctions
involving citizens’ rights and necessitating the approval of
the prosecutor shall be handled by the prosecutors general
(prosecutors) of the Contracting Parties.”
2. Militia Act of 20 December 1990 (as in force at the
material time)
According
to section 11 § 5 of the Militia Act, persons arrested for
alcohol intoxication in a public place, unable to walk, posing danger
to themselves or others, shall be transferred by police that arrested
them to specialised sobering-up facilities or to their home. They
shall be held in police stations only if their address is unknown or
there is no sobering-up facility in the locality.
3. Regulation no. 4203-IX of 13 July 1976 “On
the temporary detention of persons suspected of having committed a
criminal offence” (enacted by Decree of the Presidium of the
Verkhovny Soviet of the USSR and still in force in Ukraine)
According
to the section 3 of the Regulation, each instance of detention of a
suspect shall be documented. The relevant record shall contain
reasons, grounds, motives, exact day and time, year and month, place
where a suspect was arrested, explanations from detained and the time
when the record was concluded. The record shall be signed by the
suspect and a person who prepared it. The period of detention shall
be calculated from the moment the suspect was brought to the relevant
investigation body or from the actual moment of apprehension.
According
to section 4 of the Regulation, the law enforcement authorities
must inform the prosecutor of any facts related to the detention of a
person within twenty-four hours of the time he or she was
apprehended. The prosecutor must issue a warrant for detention within
forty eight hours from receipt of such information, or release the
detained.
Section
10 of the Regulation envisaged that a record should be drawn upon
person’s apprehension and that this person should be informed
of the rights of an apprehended suspect.
C. International human rights reports on Kazakhstan
1. Kazakhstan: Amnesty International Briefing to the UN
Committee Against Torture (November 2008)
The
relevant extracts provide as follows:
“5. Cruel, inhuman or degrading
treatment or punishment (Article 16)
5.1. The death penalty
In May 2007 the scope of the application of the death
penalty permitted by the constitution was reduced from 10
“exceptionally grave” crimes to one – that of
terrorism leading to loss of life. The death penalty also remains a
possible punishment for “exceptionally grave” crimes
committed during times of war. A person sentenced to death in
Kazakhstan retains the right to petition for clemency. A moratorium
on executions, which had been imposed in 2003, remained in force and
no death sentences were passed during 2007 and the first 10 months of
2008. All 31 prisoners on death row had their sentences commuted to
life imprisonment.
Amnesty International is concerned that the death
penalty could be applied to acts committed outside Kazakhstan and ...
concern is heightened in view of the documented failure of judges to
exclude evidence extracted under torture and the numerous reports of
the authorities using national and regional security and the fight
against terrorism to target vulnerable groups such as asylum-seekers
and groups perceived to be a threat to national and regional
stability. ....
5.2. Prison conditions
Whereas by all accounts Kazakhstan had implemented a
successful reform of its penitentiary system ... the last two years
have reportedly seen a decline in prison conditions, with many of the
abusive practices reoccurring more and more often.
2007 saw a number of disturbances in prisons camps
throughout the country with large groups of prisoners committing acts
of self-mutilation, such as slicing their abdomens, hands and necks,
reportedly in protest at deteriorating conditions of detention. The
South Kazakhstan Regional office of the prosecutor opened a criminal
case into the abuse of office, and the unlawful use of police
equipment, by prison officials in relation to 77 prisoners committing
acts of self-mutilation. The prosecutor’s office was quoted by
the press as admitting that prison officers had beaten and otherwise
ill-treated prisoners. Nevertheless the prison officials were not
charged under Article 347-1 (Torture). The prisoners themselves were
charged with organizing disturbances in order to disrupt the
functioning of the prison, a criminal offence under Article 361 of
the Criminal Code punishable from one to up to 10 years’
imprisonment.
NGOs told Amnesty International that the conditions of
detention in prisons had severely deteriorated since 2006 and that
they were receiving increasing numbers of complaints of torture or
ill-treatment from prisoners or from relatives. It was becoming
increasingly difficult for prisoners to lodge complaints about
torture or other ill-treatment by prison officers, according to these
reports, because all correspondence was vetted by the prison
administration and complaints could only be forwarded to the local
prosecutor’s office with the permission of the prison
administrator, in contravention of the rights of prisoners and
detainees. NGOs were told that prisoners had to pay the prison
administration to see a medical doctor or to get medical treatment,
or to send letters or make phone calls to their families, that they
were often locked up in punishment cells for extended periods of time
for either complaining about cruel, inhuman or degrading treatment or
punishment or for disobeying orders by prison officers. Some methods
of punishment meted out to prisoners reportedly included being forced
to clean toilets with their bare hands and wash the floor naked.”
2. Report of the Special Rapporteur of the Commission
on Human Rights on the independence of judges and lawyers, Leandro
Despouy (Addendum “Civil and Political Rights, including the
questions of independence of the judiciary, administration of
justice, impunity”), at Sixty-first session Item 11(d) of the
provisional agenda, 11 January 2005
The
relevant extracts from the Special Rapporteur’s report provide
as follows:
“... 20. Moratorium on the
death penalty
In December 2003, the Senate proposed a moratorium on
the death penalty. By presidential decree the moratorium was extended
in January 2004 and the Criminal Code amended to introduce life
imprisonment instead of capital punishment. With all human rights
organizations, the Special Rapporteur welcomes this development,
especially having in mind that 40 persons were executed in 1999; 22
in 2000 and 15 in 2001. Since the moratorium, only one death sentence
was registered and the Supreme Court commuted it to life
imprisonment.”
3. The International Helsinki Federation for Human
Rights Report of 11 September 2006
The
relevant extracts from the Report read as follows:
“.... Though there has been a moratorium on
executions since December 2003 and life imprisonment has been a
viable legal alternative to the death sentence since January 2004 --
both developments welcomed by the IHF -- this latest ruling signals
that obstacles remain in Kazakhstan’s journey towards abating
the use of the death penalty and, eventually, abolishing it. With the
moratorium in place, Ibragimov now goes to death row, joining 27
other inmates and awaiting his death should the political will of the
Kazakh government break and lift the moratorium. ...”
4. International Service for Human Rights Report on
Kazakhstan (discussed at the 26th session of the Committee against
Torture in Geneva, 30 April to 18 May 2001)
The
relevant extracts from the Report of the Committee against Torture
read as follows:
Kazakhstan (initial report)
“... The Committee was concerned about the
allegations of torture and other degrading treatment committed by law
enforcement officials. The lack of independence of the [prosecutors],
the defence counsel and the judiciary was also raised with concern.
The Committee highlighted that allegations of torture are not being
considered seriously, as reflected by the fact that investigations
are being postponed and judges sometimes refuse to recognise evidence
of torture.
Another point of concern related to overcrowding and
reduced access to medical care in prisons and detention centres.
... The Committee recommended that the crime of torture,
as outlined in the Penal Code, be amended in line with the
Convention. It urged the State Party to ensure a fully independent
mechanism of complaints and enable the defence counsel to follow a
case from the beginning and to gather evidence ...”
5. Analysis of the legal framework for the death
penalty in Kazakhstan by OSCE/ODIHR
The
relevant extracts from the analysis by the OSCE Office for Democratic
Institutions and Human Rights on the death penalty (by means of
shooting) in Kazakhstan, dated 20 November 2004, read as
follows:
“.... There are currently 27 persons on death row
in Kazakhstan. Persons subjected to the moratorium are currently
detained in pre-trial detention facilities.
... Official statistics provided by the Office of the
Prosecutor-General indicate that nine death sentences were passed in
the period from 30 June 2003 to 30 March 2004. No death sentences
entered into force (i.e., all appeals stages exhausted) in this
period. According to unofficial statistics, only one death sentence
has been passed since the moratorium was put in place, but this was
subsequently reduced to life imprisonment by the Supreme Court.
... Official statistics provided by the Office of the
Prosecutor-General indicate that no executions were carried out in
the period from 30 June 2003 to 30 March 2004.
... All persons sentenced to death have the right to
appeal for commutation of the sentence to life imprisonment or 25
years’ imprisonment (Art. 49(3) of the Criminal Code, Art.
31(2) of the Criminal Procedure Code, and Art. 166(1) of the Criminal
Executive Code). The cases of all persons sentenced to death are
considered regardless of whether the sentenced person has submitted
an appeal for clemency (Presidential Decree No. 2975 “On
provisions for pardoning procedure by the president of the Republic
of Kazakhstan”, 7 May 1996)
... Relatives are not informed in advance of the date of
execution, the body is not returned, and the location of the place of
burial is not disclosed to the relatives until at least two years
after the burial has taken place (Art. 167, Criminal Executive
Code).”
6. US Department of State Country Reports on Human
Rights Practices - 2004, released by the Bureau of Democracy, Human
Rights and Labour, 28 February 2005 (extract on Kazakhstan)
The
relevant extracts from the US Department of State report read as
follows:
Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
“The Government reported that 51 criminal cases
against law enforcement officers for physical abuse were filed during
the year.
... Prison conditions remained harsh and sometimes life
threatening. Mistreatment occurred in pre-trial detention facilities
and in prisons, and nongovernmental organizations (NGOs) and
international organizations reported that abuses of prisoners
increased after the head of the penitentiary system and approximately
one third of the prison administrators were replaced in 2003.
The December 2003 transfer of supervision of pre-trial detention
facilities from the Ministry of the Interior to the Ministry of
Justice was completed in May; as a result of this transfer,
conditions improved, although they remained harsh. The head of the
prison system and two deputies resigned in February following reports
of brutal beatings of inmates in certain prisons. Violent crime among
prisoners was common. During the year, the number of prisoners
continued to decline significantly. Much of the decrease was
associated with the 2002 Humanization of Criminal Justice Law, which
prescribes punishments other than imprisonment, such as probation,
for minor first offences.
The Government reported 2,600 total violations,
including physical force violations, by employees of the penitentiary
system during the year. Some officials were punished for these
abuses; 911 employees received disciplinary punishment, including
fines, demotions, and dismissal and another 8 employees were
convicted on criminal charges.
In the past several years, prison diets and availability
of medical supplies have improved. There were 6 tuberculosis colonies
and 2 tuberculosis hospitals for prisoners; 5,591 prisoners were
housed in these colonies. While the incidence of tuberculosis
stabilized, HIV/AIDS continued to be a problem. The Government,
together with the U.N. Development Program (UNDP), continued to
implement a project to prevent HIV/AIDS and other sexually
transmitted diseases in penitentiaries. Prisoners were permitted to
have visitors, although the number and duration of visits depended on
the security level of the prison and the type of sentence being
served.
Prisoners were held in close proximity, barracks-style
facilities; however, a government program to build new correctional
facilities and rehabilitate existing facilities continued throughout
the year.
Incidents of self-mutilation by inmates to protest
prison conditions continued. In general, the Government did not take
action in response to self-inflicted injuries by prisoners... ”
7. US State Department Country Reports on Human Rights
Practices – 2006, released by the Bureau of Democracy, Human
Rights, and Labour, 6 March 2007)
The
relevant extracts from the report read as follows:
“(...) The following human rights problems were
reported: an incident of unlawful deprivation of life; ... detainee
and prisoner abuse; unhealthy prison conditions; ... lack of an
independent judiciary; ...
a. Arbitrary or Unlawful Deprivation of
Life
... The court sentenced Rustam Ibragimov, a former
ministry of internal affairs official, to death, though he will
remain in prison as long as the death penalty moratorium remains in
effect. ....
c. Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
The constitution and law prohibit such practices, but
police and prison officials at times tortured, beat, and abused
detainees, often to obtain confessions. In its Human Rights
Commission’s annual report, the government acknowledged that
torture and other illegal methods of investigation were still used by
some law enforcement officers. Human rights and international legal
observers noted investigative and procurator’s practices that
overemphasized a defendant’s confession of guilt over
collecting other types of evidence in building a criminal case
against a defendant.
... The ombudsman’s office reported 2,613 citizen
complaints during the year, over 20 percent of which were allegations
of abuse by law enforcement.
... Prison and Detention Centre Conditions
Though the government implemented prison reforms and
granted greater access, prison conditions remained harsh and
facilities did not meet international health standards. Mistreatment
occurred in police cells, pre-trial detention facilities, and
prisons. The government took some steps to address systemic patterns
that encouraged prisoner abuse. These included continued operation of
and increased access for regional penitentiary oversight commissions,
training of prison officials, and seminars for MVD police; however,
no prison officials were prosecuted for abuses during the year.
The government conducted 13 criminal investigations of
penitentiary officials for corruption in the first eight months of
the year. These investigations resulted in 12 convictions and
one acquittal.
... Although the government made some efforts to upgrade
existing facilities and build new ones, buildings at many prisons
remained outdated and hygiene conditions were substandard. In
February the procurator general’s office issued an order
closing one of the buildings in the Semipalatinsk pre-trial
investigation facility because it did not meet sanitary standards and
posed a threat to the health and lives of detainees. On May 25, the
procurator general’s office issued a statement criticizing the
MOJ for failing to address overcrowding, sewage, and poor sanitation
in prisons.
During the year, 31 detainee deaths, including five
suicides, were reported at pre-trial detention facilities. The
government reported 268 deaths in prisons during the year, including
26 suicides.
Incidents of self-mutilation by inmates to protest
prison conditions continued. On March 31, inmates in the Zarechny
prison outside of Almaty rioted to protest harsh conditions,
mistreatment, and confiscation of personal belongings. According to
human rights activists, the prison was originally designated to house
convicted law enforcement officers. However, prior to the riot,
regular criminals were added to the population, leading to increased
tension and the tightening of controls. Twenty-four inmates mutilated
themselves by cutting their abdomens, and three inmates were injured
when prison guards restored order. Local NGOs were permitted to visit
the facility and interview inmates after the incident. An activist
from the Public Committee for Monitoring Human Rights reported that
the prison officials’ response to the riot was generally
appropriate. Several officers of the prison administration were
disciplined for their failure to deal with the protest action. After
the incident, prison officials transferred the regular criminals out
of the population to reduce tension and problems.”
8. US Department of State Country Reports on Human
Rights Practices - 2007, released by the Bureau of Democracy, Human
Rights and Labour, 11 March 2008
The
relevant extracts from the US Department of State report read as
follows:
“(...) There were the following human rights
problems: (...) detainee and prisoner abuse; unhealthy prison
conditions; arbitrary arrest and detention; lack of an independent
judiciary; (...) pervasive corruption, especially in law enforcement
and the judicial system; (...)
a. Arbitrary or Unlawful Deprivation of
Life
In contrast with the previous year,
there were no reports that the government or
its agents committed arbitrary or unlawful killings. (...)
c. Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
The procurator general’s office (PGO) and the
human rights ombudsman acknowledged that torture and other illegal
methods of investigation were still used by some law enforcement
officers. Human rights and international legal observers noted
investigative and prosecutorial practices that overemphasized a
defendant’s confession of guilt over collecting other types of
evidence in building a criminal case against a defendant. Courts
generally ignored allegations by defendants that their confessions
were obtained by torture or duress.
The ombudsman’s office reported 1,684
citizen complaints during the first 11 months
of the year, approximately 300 of which were allegations of abuse or
misconduct by law enforcement.
Prison and Detention Centre Conditions
NGOs and international observers reported that prison
and detention centre conditions declined during the year. Observers
cited worsening treatment of inmates and detainees, lack of
professional training for administrators, and legislative changes on
April 26 that criminalized prisoner protests and self-mutilation. The
legislative changes also transferred operation of the parole system
from penitentiary officials to the MIA and implemented forced
tuberculosis treatment.
Prison conditions remained harsh and facilities did not
meet international health standards, although the government began
renovating three prisons and two detention facilities during the year
as part of a penitentiary development program. Mistreatment occurred
in police cells, pre-trial detention facilities, and prisons. The
government took steps to address systemic patterns that encouraged
prisoner abuse, including continued operation of and increased access
for regional penitentiary oversight commissions, training of prison
officials, and seminars for MIA police. Authorities did not prosecute
any prison officials for abuses during the year, although they opened
21 investigations for corruption, resulting in eight convictions by
year’s end.
During the first ten months of the year, 32 detainee
deaths, including six suicides, were reported at pre-trial detention
facilities. The government reported 40 suicides in prisons during the
first 11 months of the year. Incidents of self-mutilation by inmates
to protest prison conditions continued.
e. Denial of Fair Public Trial
The law does not provide adequately for an independent
judiciary. The executive branch limited judicial independence.
Procurators enjoyed a quasi-judicial role and were permitted to
suspend court decisions.”
D. Relevant extracts from the Constitution and the
Criminal Code of the Republic of Kazakhstan
The
Constitution of the Republic of Kazakhstan envisages the death
penalty, as an exception to the right to life. A Presidential Decree
placing a moratorium on executions was introduced on 17 December
2003.
1. Constitution of the Republic of Kazakhstan
(adopted on
30 May 1995
with changes and amendments dated
21 May
2007)
The
relevant extracts from the Constitution of Kazakhstan provide as
follows:
Article 15 (in force as from 22 May 2007)
“1. Everyone shall have the right to
life.
2. No-one shall deprive a person of his/her
life. The death penalty shall be established by law as an exceptional
punishment for terrorist crimes which have resulted in the loss of
human life, and also for especially grave crimes, committed in time
of war, with a sentenced person having a right to appeal for pardon.”
Article 83 (in force as from 22 May 2007)
“1. The Prosecutor’s Office,
acting on behalf of the State, effectuates highest supervision over
strict and unified application of the laws, Presidential decrees, and
other normative acts of the Republic of Kazakhstan ...”
2. The Criminal Code of the Republic of Kazakhstan
(approved by Law no. 167 of 16 July 1997, with changes and amendments
dated 9 December 2004)
Article
39 of the Criminal Code (Types of punishment), provides that persons
found guilty of committing criminal offences may be subject to the
capital punishment as one of the types of punishment. Under Article
49 (Capital punishment) envisages that:
“1. Capital punishment, that is a
sentence to be shot, is an exceptional form of punishment reserved
for especially grave crimes infringing a person’s right to life
and for crimes committed in war time or in a combat situation, high
treason, crimes against the peace and safety of mankind and
especially grave military crimes.
2. Capital punishment shall not be applied to
women, to persons who committed a crime while under the age of
eighteen or to men who have reached the age of sixty five when
the sentence is passed by a court.
3. Should the President of the Republic of
Kazakhstan introduce a moratorium on enforcement of the death
penalty, the enforcement of a death sentence shall be suspended for
the effective period of the moratorium.
4. A sentence of death shall be implemented
not earlier than one year from the time of its entry into force and
no less than one year after the abolition of a death penalty
moratorium.
5. Under the pardon procedure, the death
penalty may be replaced with life imprisonment or with deprivation of
liberty for a period of twenty-five years in a special-regime
correctional facility. Persons sentenced to the death penalty shall,
in the event of the abolition of a moratorium, have the right to
petition for pardon, irrespective of whether or not they had made
such a petition prior to the introduction of the moratorium.”
E. Third party submissions as to the legal and human
rights situation in Kazakhstan
The
third party stated that the legislation of Kazakhstan contained
insufficient guarantees to ensure respect for human rights. In
particular, it contained no sufficient guarantees for a person not to
be ill-treated. In particular, they stated that the Criminal Code of
Kazakhstan provided no punishment for ill-treatment, as it only
referred to torture. Furthermore, they stated that in cases of
ill-treatment by the law enforcement or prison authorities, these
complaints were investigated by the same authorities, who were
directly dependent on the executive, thus it created a vicious circle
of impunity. Furthermore, under Article 82 of the Constitution of
Kazakhstan judges were to be appointed by the President of
Kazakhstan, having no authority to supervise complaints of
ill-treatment. Thus, there was no independent body able to
investigate complaints in respect of ill-treatment. Furthermore, they
referred to the Amnesty International report of January 2006 –
March 2007, the US State Department report of 2006 and the Almaty
Helsinki Committee report for 2004, which, from their point of view,
also proved that legal practices in Kazakhstan did not comply with
human rights standards.
THE LAW
I. PRELIMINARY CONSIDERATIONS
A. The continued examination of the application
In
September 2008 the applicant requested the Court to strike the
application out of the list of cases as he wanted to be extradited to
Kazakhstan. However, he, his mother and his advocate later submitted
that this statement by the applicant had been given under pressure
from the domestic authorities. The applicant later confirmed his
intention to pursue the application (see paragraph 8 above).
The
Government stated that no pressure had been exerted on the applicant
and that his statement had been voluntary. They mentioned that this
was confirmed in the applicant’s statements made to the GPO of
Ukraine that he initially wished to discontinue proceedings, but
after a meeting with an advocate, Mr Bushchenko, changed his mind.
The
Court notes that the Government’s contention that the Court
should strike the case out of the list pursuant to Article 37 of the
Convention is based on the applicant’s written request of
September 2008. A question may arise as to whether the applicant’s
letter of September 2008 represented his will at the time, or whether
it was brought about by a combination of pressures upon him (see, for
example, Kurt v. Turkey, no. 24276/94, Commission decision of
22 May 1995, Decisions and Reports 81-A, p. 112).
However,
even if the applicant intended, at the time of his letter of
3 September 2008, not to pursue his application, it is plain
that as from 6 November 2008 at the latest, he did wish to pursue it.
The General Prosecutor’s Office confirmed this. In these
circumstances, the Court finds that it cannot be said that the
applicant “does not intend to pursue his application”,
and it declines to strike the application out of its list of cases.
B. The applicant’s identity
84. The
applicant initially submitted that he was detained in error as his
real surname was “Kubulov (Kuboulov)” and not “Kaboulov”.
He provided several documents, including his passport showing
citizenship of the Russian Federation, which had been issued in that
name.
The
Court notes that the domestic authorities took the view, in
particular in the decision of the Zhovtnevy Court of 7 September
2005, that the applicant’s name was Amir Damirovich Kaboulov,
and that he was a citizen of Kazakhstan. The Court does not consider
it necessary to make any findings in this respect, as even if there
was a mistake as to the identity of the applicant, there is no doubt
that it was the applicant who was detained on 23 August 2004, that it
is the applicant who was wanted by the Kazakhstan authorities and in
respect of whom the extradition was requested, and that it is the
applicant who remains in detention. There are therefore no issues
related to the applicant’s identity which need resolving.
C. Objection as to exhaustion of domestic remedies
1. The parties’ submissions
The
Government stated that the applicant’s complaints under
Articles 2, 3, 5 and 13 of the Convention should be rejected for the
applicant’s failure to comply with exhaustion requirements. In
particular, the Government argued that the applicant had failed to
exhaust domestic remedies in that he had not lodged any complaints
with the domestic courts against the decision to extradite him taken
by the General Prosecution Service, a course of action that was
permitted under Article 55 of the Constitution of Ukraine. They
further alleged that the applicant had never complained to the
domestic courts about the lawfulness of the order to detain him made
on 23 August 2004. They therefore proposed that the
application be declared inadmissible for non-exhaustion of domestic
remedies.
The
applicant contested this view. In particular, he submitted that he
had complained about his unlawful detention and extradition to the
domestic courts. The applicant further stressed that the GPO of
Ukraine decision of 27 September 2004 to extradite him had
constituted a final decision for the purpose of exhaustion of
domestic remedies. It was not amenable to appeal as to its
lawfulness, as the domestic courts were allowed to review only the
existence of the formal grounds for extradition and not the
compliance of a decision to extradite with the obligations set out in
Articles 2 and 3 of the Convention. In that respect, he referred in
particular to Resolution no. 8 of the Plenary Supreme Court of 8
October 2004 on issues related to the application of legislation
governing the procedure and length of detention (arrest) of persons
awaiting extradition, which summarised the domestic courts’
practice on extradition issues.
The
applicant further maintained that there were no effective remedies
that he was required to exhaust in order to challenge the GPO of
Ukraine’s decision to extradite him to Kazakhstan. In
particular, the applicant stated that he had complained on various
occasions to the domestic courts about the unreasonable length of his
detention and its unlawfulness, the unlawful inactivity of the
Governor of Kharkiv SIZO no. 27, who refused to release
him, and about the extradition decision itself. The proceedings
concerning these complaints and their unfavourable outcome showed
that there were no domestic remedies available to the applicant.
The
third party mentioned that there were no effective remedies in
Ukraine for the purposes of suspension of extradition which would
arguably be contrary to the requirements of Articles 2, 3 and 6 of
the Convention. They stated that the issue of one’s extradition
should be decided not automatically, but after careful examination of
all relevant factors and the individual case.
2. The Court’s assessment
The
Court reiterates that the Convention is intended to guarantee rights
that are not theoretical or illusory, but practical and effective
(see, mutatis mutandis, Matthews v. the United Kingdom
[GC], no. 24833/94, § 34, ECHR 1999-I). Furthermore,
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, 28 November
1997, § 57, Reports of Judgments and Decisions
1997 VIII). In this respect the Government have referred to
Article 55 of the Constitution and the possibility to challenge in
courts the decisions on extradition, which could run contrary to the
requirements of Articles 2, 3, 5 and 13 of the Convention. They
stated that any action taken during the extradition proceedings could
be appealed against to the domestic courts, under Article 55 of
the Constitution. They provided no relevant case-law of the domestic
courts to prove their contention.
As to the complaints under Articles 2 and 3 of the
Convention, the Court notes that allegations of possible infringement
of these provisions were examined in the course of the proceedings
before the Pechersky District Court of Kyiv and the Kyiv City Court
of Appeal. These proceedings ended with a ruling of the Pechersky
Court on 1 July 2005, upheld on appeal on 22 September 2005, in which
the first instance court found that it had no jurisdiction under the
Code of Administrative Justice to examine the applicant’s
complaints as they concerned issues arising from the application of
the Code of Criminal Procedure (see paragraphs 52 – 54 above).
Further, according to the Resolution of the Plenary Supreme Court of
8 October 2004 the courts’ jurisdiction concerned only review
of detention requests related to extradition which had been lodged by
the law enforcement authorities and could not extend any further (see
Soldatenko, § 31, cited above). Thus, it appears
that the domestic courts in the applicant’s case, as in the
case of Soldatenko v. Ukraine (mutatis mutandis, no.
2440/07, § 49, 23 October 2008), were not able to
review complaints against extradition raised under Articles 2 and 3
of the Convention.
Furthermore, as regards the applicant’s
allegations of possible infringement of Article 5 of the Convention,
the Court notes that the applicant, his mother and his lawyers tried
to pursue various court remedies, referring, inter alia, to
Articles 29 and 55 of the Constitution, Article 5 of the Convention
and Article 106 of the Code of Criminal Procedure and claiming that
detention pending extradition and the applicant’s continued
detention were not based on law and the Convention (see, for
instance, paragraphs 48, 52, 55 and 59 above). They made several
unsuccessful complaints to the administrative courts and courts of
general jurisdiction, instituting four sets of proceedings before
these courts (see paragraphs 39 - 43, 44 – 47, 48 – 54
and 55 - 60 above). The Court also notes that on several occasions
domestic courts refused to examine the applicant’s complaints
on grounds of lack of jurisdiction (see paragraphs 42, 47, 39, 52 –
53 and 59 above). Moreover, the Zhovtnevy District Court of Kharkiv
found the applicant’s detention pending extradition lawful as
being based on the relevant legislative acts which did not require
the existence of a continuous legal basis for detention pending
extradition (see paragraph 59 above). It referred inter alia
to Article 29 of the Constitution of Ukraine, Articles 56 – 62
of the Minsk Convention, Articles 165(1) and 165(2) of the Code of
Criminal Procedure (see paragraphs 61 – 67 above), as well as
Article 5 §§ 1, 3 and 4 of the Convention.
Thus,
the Court finds no legal or factual elements which would justify
departure from the conclusions made in the aforementioned Soldatenko
judgment (cited above) in respect of effective remedies under
Article 3 of the Convention. It dismisses the Government’s
preliminary objection as to the necessity for the applicant to
exhaust remedies indicated by the Government in relation to his
complaints under Articles 2 and 5 of the Convention. It concludes
that the applicant had no effective remedies for his complaints about
lawfulness of his extradition and detention under Articles 2, 3 and 5
of the Convention. The question of remedies for the purposes of
Article 13 falls to be considered together with the substantive
issues.
The Court concludes that this application 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.
II. MERITS
A. Alleged violation of Article 2 § 1 of the
Convention
1. The parties’ submissions
The
applicant complained under Article 2 § 1 of the Convention that
there was a real risk that he would be liable to capital punishment
in the event of his extradition to Kazakhstan. He alleged that the
assurances given by the Government of Kazakhstan were insufficient as
the moratorium imposed on capital punishment could be lifted at any
time and the charges against him could be reclassified. This
provision reads as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally ... (...)”
The
Government contested that argument. They stated that in the event of
the applicant’s extradition to Kazakhstan he would not be
liable to capital punishment as the indictment in his case related to
a criminal act under Article 96(1) of the Criminal Code and involved
the offence of murder, not punishable by capital punishment.
Furthermore, they stated that there had been a moratorium on capital
punishment in Kazakhstan, that capital punishment was applied only in
exceptional circumstances and that this sentence could not be
enforced, even if one assumed that such a sentence would be passed in
relation to the applicant.
The
Government further stated that the persons sentenced to the death
penalty were all held in the specialised detention facility in
Arkalyk of the Kustanaysk region. In 2004 two persons sentenced to
the death penalty were held in that detention facility. In 2005 there
were 29 persons sentenced to death, in 2006 – 30 and in 2007 –
31 persons. From 2003 to 2006 death sentences were passed by the
domestic courts on 17 occasions. They stated that there was no
likelihood that the applicant would face capital punishment,
especially in view of the specific assurances given by the Deputy
Prosecutor General of Kazakhstan on 2 December 2004, and, even if he
did, such a punishment would not be enforced in view of the
moratorium on capital punishment in Kazakhstan.
The
third party stated that the death penalty was still provided by the
Criminal Code as a punishment for crimes and had not been fully
abolished. In 2006 there were 26 prisoners on death row. For the
third party there was no certainty that the death sentence would be
abolished and thus the applicant could still be sentenced to capital
punishment and would await it pending the moratorium.
2. The Court’s case-law
The
Court observes that, in the context of extradition and positive
obligations under Article 2 of the Convention, in complying with
their obligations in the area of international legal cooperation in
criminal matters, the Contracting States must have regard to the
requirements enshrined in that provision of the Convention. Thus, in
circumstances where there are substantial grounds to believe that the
person in question, if extradited, would face a real risk of being
liable to capital punishment in the receiving country, Article 2
implies an obligation not to extradite the individual (see, among
many other authorities, S.R. v. Sweden (dec.), no. 62806/00,
23 April 2002; Ismaili v. Germany (dec.),
no. 58128/00, 15 March 2001; and Bahaddar v. the
Netherlands, judgment of 19 February 1998, Reports
1998-I, opinion of the Commission, p. 270-71, §§ 75-78).
Furthermore, if an extraditing State knowingly puts the person
concerned at such high risk of losing his life as for the outcome to
be near certainty, such an extradition may be regarded as
“intentional deprivation of life”, prohibited by
Article 2 of the Convention (see Said v. the Netherlands
(dec.), no. 2345/02, 5 October 2004); Dougoz v. Greece
(dec.), no. 40907/98, 8 February 2000).
In Ismoilov and Others v. Russia, the Court
found that no issue arose under Article 3 of the Convention because
there was no risk of the death penalty being applied, as capital
punishment had been abolished and the risk of its imposition was
eliminated (see Ismoilov and Others v. Russia, no. 2947/06, §
119, 24 April 2008). The Court considers it necessary to assess the
likelihood of the applicant being subjected to capital punishment if
returned to Kazakhstan.
3. The Court’s assessment
As
to the applicant’s submissions that the offence at issue may be
re-classified and that he would be liable to capital punishment, the
Court accepts that it is possible that the courts in Kazakhstan could
re-qualify the charge to one of murder under aggravating
circumstances, envisaged by Article 96 § 2 of the
Criminal Code, which is an offence allowing for the sentence of
capital punishment. It also notes that the moratorium on executions
could be annulled, at the will of the President of Kazakhstan, at any
time.
However,
it appears from the case-file, the submissions made by the parties
and the third party intervention that no executions were carried out
in Kazakhstan in 2007 - 2008 and death sentences imposed were
commuted to life imprisonment (see paragraphs 68 – 79 above).
As to the moratorium on enforcement of capital punishment, the Court
notes that as from 17 December 2003 the Republic of Kazakhstan
has suspended enforcement of death sentences pending the introduction
of the relevant changes to its Criminal Code. It further notes that
this moratorium was extended under the Law no. 529-2 on “Introduction
of changes and amendments to the Criminal Code, Code of Criminal
Procedure and the Code on Enforcement of Sentences on the basis of
the moratorium introduced on the enforcement of capital punishment”
of 10 March 2004. Moreover, capital punishment has been abolished for
most purposes in Kazakhstan. There is no suggestion that the
moratorium on enforcement is likely to be lifted. Turning to the
facts of the case, the request for the applicant’s extradition
was submitted under Article 96 § 1 of the Criminal Code (murder)
and the international search warrant issued by the authorities of
Kazakhstan on 4 July 2003 contained reference to aggravated
murder (Article 96 § 2 of the Criminal Code); the
Government of Kazakhstan assured that the applicant would be
prosecuted only under Article 96 § 1 (non-aggravated murder)
(see paragraphs 33 – 35 above).
In
the light of all the circumstances of the case, the Court concludes
that, even in the unlikely event of the charges against the applicant
being amended from “murder” to “aggravated murder”,
there is no real risk of his being executed, and therefore no
violation of Article 2 of the Convention.
B. Alleged violation of Article 3 of the Convention
1. The parties’ submissions
The
applicant submitted that there was a danger that he would be
subjected to ill-treatment on account of the possible application of
the death penalty and the time spent awaiting its execution, the poor
conditions of detention in Kazakhstan, the lack of proper medical
treatment and assistance in detention facilities and the widespread
practice of torture of detainees. He relied on Article 3 of the
Convention, which provides in so far as relevant:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument. They stated that there were no
grounds to believe that the applicant himself would be subjected to
treatment contrary to Article 3 of the Convention, if extradited to
Kazakhstan. They further stated that on 18 September and 2 December
2004 the Government of Kazakhstan provided sufficient guarantees that
the applicant would not be ill-treated and that his rights and
interests during the investigation would be respected. The Government
stated that there was no reason to believe that the applicant would
be detained with the purpose of causing him physical or moral
suffering. They stated that the authorities had to act in accordance
with their international law obligations arising from the UN
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. The Government further maintained that
relevant and necessary medical treatment was provided to detainees in
Kazakhstan and that the Kazakh government was undertaking measures to
improve prison and medical conditions in detention facilities.
The
third party, referring to various international reports, including
those cited above (see paragraphs 68 – 75 above), noted the
lack of effective domestic remedies in Kazakhstan to investigate
allegations of ill-treatment. They noted the lack of independence of
the judiciary and the persistently poor human-rights record in
Kazakhstan. They noted that given the human-rights situation in
Kazakhstan, the applicant would face a very real risk of torture or
ill-treatment. They further mentioned, referring to the same
international human rights reports and their findings, that prison
conditions in Kazakhstan were harsh and did not comply with Article 3
requirements.
2. The Court’s case-law
Extradition
by a Contracting State may engage this State’s responsibility
under Article 3 of 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 (see Soldatenko v. Ukraine,
§ 66, cited above). Such responsibility inevitably involves
an assessment of conditions in the requesting country and their
compliance with the standards of Article 3 of the Convention. To
undertake such an assessment the Court examines all the material
placed before it, or, if necessary, material obtained proprio motu
from various international, domestic, governmental and NGO
sources. 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). At the same time, where the available sources 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).
Ill-treatment must attain a minimum level of
severity, which is relative and 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, if it is to fall within the scope of
Article 3. When assessing conditions of detention, account has to be
taken of their cumulative effects as well as the applicant’s
specific allegations and detention duration. Furthermore, diplomatic
assurances do not absolve the Court from the obligation to examine
whether they in practice provided a sufficient guarantee that the
applicant would be protected against the risk of ill-treatment
prohibited by the Convention (see Chahal, cited above, §
105; Saadi v. Italy [GC], cited above, § 148).
The Court notes that in substance the applicant
states that he would be tortured in Kazakhstan by the law enforcement
authorities, who would aim to extract a confession from him. He also
alleges that he would be detained in poor conditions, both pending
trial and after trial, if convicted, with a lack of necessary
facilities to provide him with adequate medical treatment and
assistance. He further maintains that, if sentenced to capital
punishment, he would be awaiting his execution in uncertainty as to
whether he would be executed or his sentence would be commuted to a
different one.
3. The Court’s assessment
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 Kazakhstan.
The
Court has had regard to the reports of the various international
human and domestic human rights NGOs, the US State Department and the
submissions made by the Helsinki Federation for Human Rights (see
paragraphs 68 – 75 and 79 above), which joined the proceedings
as a third party. According to these materials, there were numerous
credible reports of torture, ill-treatment of detainees, routine
beatings and the use of force against criminal suspects by the Kazakh
law-enforcement authorities to obtain confessions. All the 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 Kazakh authorities. The Court does not
doubt the credibility and reliability of these reports. Furthermore,
the respondent Government have not adduced any evidence, information
from reliable sources or relevant reports capable of rebutting the
assertions made in the reports above.
The
Court further notes that, in so far as the applicant alleged that he
would face a risk of torture with a view to extracting a confession,
there is no evidence that there is a real and imminent risk of him,
personally, being subjected to the kind of treatment proscribed by
Article 3. However, from the materials referred to above it appears
that any criminal suspect held in custody runs a serious risk of
being subjected to torture or inhuman or degrading treatment,
sometimes without any aim or particular purpose. Thus, the Court
accepts the applicant’s contention that the mere fact of being
detained as a criminal suspect, as in the instant case, provides
sufficient grounds to fear a serious risk of being subjected to
treatment contrary to Article 3 of the Convention.
As
to whether the risks to the applicant have been excluded by
assurances on the part of the Kazakhstan authorities, the Court
recalls that the Kazakhstan General Prosecutor’s Office
informed the Ukrainian authorities on 18 September 2004 that the
applicant would only be prosecuted for offences referred to in the
extradition request, that is, murder, and on 2 December 2004 a
further assurance was given that the applicant would not be liable to
the death penalty (see paragraphs 33 - 35 above). The Court notes
that these assurances state generally that the applicant’s
rights and lawful interests in the course of criminal proceedings
against him would be protected (see paragraph 34 above). They do not
specifically exclude that the applicant would be subjected to
treatment contrary to Article 3, and so cannot suffice to
exclude the serious risks referred to above.
The
foregoing considerations, taken together, are sufficient to enable
the Court to conclude that the applicant’s extradition to
Kazakhstan would be in violation of Article 3 of the Convention.
In
the light of the aforementioned findings the Court considers it
unnecessary to rule on the hypothetical issue of whether, in the
event of his extradition to Kazakhstan and in the course of his
possible stay in detention there, the applicant would suffer from
anguish and distress whilst awaiting a final decision on sentencing.
C. Alleged violation of Article 13 of the Convention
The
applicant alleged that he had no effective remedies to challenge his
extradition on the grounds of the risk of treatment contrary to
Article 3 of the Convention. 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.
The
Government, the applicant and the third party further referred to
their arguments with respect to the Government’s objection as
to the exhaustion of domestic remedies. In particular, the third
party stated that there were no effective remedies to complain about
extradition contrary to Articles 2, 3 or 6 of the Convention. They
maintained that the law at issue was not sufficiently accessible and
precise, failing to avoid risks of arbitrariness. They referred in
contrast to the experiences of Poland and the United Kingdom in this
area, where the courts, as opposed to the prosecutor’s office
rule, on requests for extradition. They stated that the courts in the
United Kingdom, acting under the Extradition Act 2003, assessed the
following issues in assessing the requests for extradition: (a) the
rule against double jeopardy; (b) extraneous considerations (whether
a person was in fact extradited for the purpose
of prosecuting or punishing him on account of his race, religion,
nationality, gender, sexual orientation or political opinions, or
whether if extradited he might be prejudiced at his trial or
punished, detained or restricted in his personal liberty by reason of
his race, religion, nationality, gender, sexual orientation or
political opinions); (c) passage of time; (d) the person’s
age; (e) hostage-taking considerations; (f) specialty; (g) the
person’s earlier extradition to the United Kingdom from
different territories; (h) human rights considerations arising from
the 1998 Human Rights Act.
The
Court recalls 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 Soldatenko v. Ukraine,
no. 2440/07, § 82, 23 October 2008).
The
Court refers to its findings (at paragraph 93 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.
D. Alleged violation of Article 6 § 1 of the
Convention
The
applicant next complained that by extraditing him to Kazakhstan,
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...”
The
Government analysed this complaint in context of the Court’s
judgment in Bader and Kanbor v. Sweden (no. 13284/04,
§ 42, ECHR 2005 XI) and stated that the applicant
would not be subjected to an unfair trial in Kazakhstan the outcome
of which would be the death penalty. They maintained that there were
sufficient legal guarantees to ensure the independent examination of
criminal cases in Kazakhstan; judges and the judiciary were
independent and acted in compliance with the law in passing
substantiated and reasoned judgments, with respect to the principles
of equality of arms and adversarial proceedings.
The
third party stated that the judiciary in Kazakhstan was not
independent from the executive power and thus a criminal trial in
Kazakhstan would be unfair.
The
Court recalls its previous finding that the extradition of the
applicant to Kazakhstan would constitute a violation of Article 3 of
the Convention (see paragraphs 114 - 115 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 as to whether, in the event of extradition to
Kazakhstan, there would also be a violation of Article 6 of the
Convention (see, mutatis mutandis, Saadi v. Italy
[GC], cited above, § 160).
E. Alleged violation of Article 5 of the Convention
1. Complaints under Article 5 §§ 1 (c), (e)
and (f), 3 and 4 of the Convention
The
applicant also complained under Articles 5 §§ 1 (c), (e)
and (f) and 3 of the Convention about the unlawfulness of his
detention and extradition. In particular, he alleged that he had been
held in detention without a valid warrant. Article 5 §§ 1 (c),
(e), (f) and 3 provide:
“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; ...
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition. ...
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. The parties’ submissions
The
Government disagreed with the applicant. They submitted that the
detention and extradition of the applicant had been lawful and not
arbitrary, as they were authorised to detain him according to the
1993 Minsk Convention and the relevant provisions of the domestic
law, including section 11 § 5 of the Militia Act (see paragraphs
63 - 66 above). They repeated their arguments in the case of
Soldatenko v. Ukraine (§§ 104 – 106, cited
above). They further alleged that Article 5 §§ 1 (c) and
(e) were not applicable to the present case as the applicant’s
detention had from the outset related to his extradition. The
Government stated that the applicant remained in detention due to the
Court’s decision to suspend extradition and due to its
examination of the case. Thus, they could not release the applicant
and they could not extradite him.
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 stated
that his detention, from the moment of his apprehension on
23 August 2004 until the present date, lacked a legal
basis, had been groundless and in breach of the procedure prescribed
by law. He stated that his detention until 16 September 2004 should
fall within the ambit of Article 5 § 1(c) of the Convention and
after that date – it should be examined under Article 5 §
1(f).
The
third party stated that the Ukrainian domestic law lacked the
required accessibility and foreseeability to be in line with the
requirements of Article 5 § 1(f) of the Convention.
b. The Court’s assessment
i. General principles
The
Court recalls that Article 5 of the Convention guarantees the
fundamental right to liberty and security of a person, that is to
say, not to be deprived of their liberty (see Weeks
v. the United Kingdom, judgment of 2 March 1987,
Series A no. 114, p. 22, § 40), save in accordance with the
conditions specified in paragraph 1 of Article 5. The list of
exceptions set out in Article 5 § 1 is an exhaustive one and
only a narrow interpretation of those exceptions is consistent with
the aim of that provision (see Amuur v. France,
judgment of 25 June 1996, Reports 1996-III, p. 848, §
42; Labita v. Italy [GC], no. 26772/95, § 170, ECHR
2000-IV; and Assanidze v. Georgia [GC],
no. 71503/01, § 170, ECHR 2004-II).
The Court reiterates that the expressions “lawful”
and “in accordance with a procedure prescribed by law” in
Article 5 § 1 essentially refer back to national law and state
the obligation to conform to the substantive and procedural rules
thereof. However, the “lawfulness” of detention under
domestic law is not always the decisive element. The Court must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1
of the Convention, which is to prevent persons from being deprived of
their liberty in an arbitrary fashion. What is at stake here is not
only the “right to liberty” but also the “right to
security of person” (see, among other authorities, Bozano v.
France cited above, p. 23, § 54; Wassink v. the
Netherlands, 27 September 1990, Series A no. 185-A, p. 11, §
24).
The
Court has already found that Ukrainian legislation does not provide
for an extradition procedure that is sufficiently accessible, precise
and foreseeable to avoid the risk of arbitrary detention pending
extradition (Soldatenko v. Ukraine, no. 2440/07, § 114,
23 October 2008).
ii. Application of these principles:
introduction
The
applicant’s detention falls to be divided into two parts:
- the applicant’s initial detention from 23 August
2004 until the judicial decision of 13 September 2004 authorising his
detention with a view to his extradition;
- the
applicant’s detention after a judicial decision of
13 September 2004.
The
Court will deal with these two periods of detention separately.
iii. Application of these principles to
the first period of the applicant’s detention
As
to the first period of detention – from the applicant’s
arrest at 9.20 p.m. on 23 August 2004 until 13 September 2004 -
the Government contended, in essence, that the applicant’s
detention was justified by Article 5 § 1(f) of the Convention
throughout. The Court notes that whilst there was undoubtedly an
intention to extradite from the moment that the Ukrainian authorities
were aware that the applicant was wanted in Kazakhstan, there is no
evidence to support the contention that the applicant’s initial
arrest was in order to effect his extradition. Rather, it was either
because he had been found drunk in a public place at 9.20 on 23
August and was to be brought to the sobering up facility (as would
appear to be the case from the records of the sobering up facility,
and as the applicant also contends), or it was to pursuant to the
commission of an unspecified criminal offence or to establish his
identity, for which he was to be brought to the police station (as
can be implied from point 4 of the detention record, see paragraph 17
above).
The
Court finds that no grounds have been made out which could bring the
applicant’s initial arrest and detention within any of the
sub-categories of Article 5 § 1. In particular, if the initial
detention was in order to bring the applicant to the sobering-up
facility, there is no explanation as to why, on the facility’s
own records, the applicant remained there for two nights (see
paragraph 23 above), or whether the detention was necessary in the
circumstances of the case. If the initial detention was connected to
the commission of a crime, no details of the crime have been given,
and if the initial detention was in order to establish the
applicant’s identity, it is not clear how that detention could
extend beyond 72 hours (as envisaged by Article 29 of the
Constitution of Ukraine).
However,
these questions can remain unanswered as, even if the police who
arrested the applicant were aware of his identity and were also aware
that he was wanted for murder in Kazakhstan, such that the intention
to extradite was present from the initial arrest, as is inherent in
the Government’s contention that the detention was covered by
Article 5 § 1(f), the Court has already found that the Ukrainian
legislation does not provide for an extradition procedure that is
sufficiently accessible, precise and foreseeable to avoid the risk of
arbitrary detention pending extradition (Soldatenko v. Ukraine,
no. 2440/07, § 114, 23 October 2008). Those findings apply
wholly to the detention up until the first judicial decision in the
applicant’s case on 13 September 2004. In these circumstances,
in which the application of Article 5 § 1(c) has not been made
out, Article 5 § 3 of the Convention is not applicable.
It follows that the applicant’s initial
detention from 23 August 2004 to 13 September 2004 was not compatible
with Article 5 § 1 of the Convention.
iv. Application of these principles to the
second period of the applicant’s detention
138. The
first judicial decision to detain the applicant for the purposes of
extradition was given on 13 September 2004, that is, 21 days after
the applicant had been arrested. Thereafter, the applicant’s
detention was extended on several occasions up to October 2005.
Since then, no judicial decisions have been taken as to his continued
detention.
139. However,
in respect of the Ukrainian legislation, as noted above, in the case
of Soldatenko v. Ukraine (§§ 112-114, cited above),
the Court found that the applicant’s detention pending
extradition was not lawful as there was no procedure in Ukrainian law
that would comply with the aforementioned criteria. On the basis of
these findings the Court found a violation of Article 5 §
1(f) of the Convention. The Government do not point to any features
in the present case which could distinguish it from Soldatenko.
Taking
into account the aforementioned, the Court concludes, as in
Soldatenko (§§ 111-112, cited above), that the
applicant’s detention pending extradition was unlawful, because
the Ukrainian legislation did not provide for a procedure that was
sufficiently accessible, precise and foreseeable to prevent any
arbitrary detention. It finds that there has been a violation of
Article 5 § 1(f) of the Convention in the present case also in
respect of the applicant’s detention from 13 September 2004 to
the present date.
2. The applicant’s complaints under Articles 5 §
2 of the Convention
a. Parties’ submissions
The
applicant alleged that Article 5 § 2 of the Convention had been
violated. In particular, he claimed that he had found out the real
reasons for his detention, namely that he was wanted by the
authorities of Kazakhstan, only during the examination of his case by
the Dniprovsky District Court of Kyiv on 13 September 2004. He
concluded that more than 20 days passed between the moment of his
detention on 23 August 2004 and the time of his notification, which
could not be seen as “prompt”. Article 5 § 2
provides:
“Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
The
Government disagreed with the applicant, stating that there had been
no breach of Article 5 § 2 of the Convention. They stated that
the applicant had been informed promptly of the reasons for his
detention and had therefore been in a position to appeal against them
before the courts. They maintained that the applicant was detained
having no identity papers and being intoxicated with alcohol in a
public place at 9.20 p.m. on 23 August 2004. When he
disclosed his name upon apprehension to the police officers it became
evident for them, after relevant verification of his identity that
the applicant was wanted as a murder suspect by the Kazakh
authorities. They claimed that detention record was drawn up at
9.20 p.m. on 23 August 2004 by the police officer of the
Dniprovsky District police station. The prosecutor was informed about
the arrest at 10.00 p.m. The applicant was then sent to the
sobering-up facility, where he was received at 9.25 p.m. According to
the Government, he stayed there overnight, until 7.30 a.m. on
24 August 2004. The Government further maintained that the
applicant signed the verbatim record on his detention at some point
in time after 10.00 p.m. on 23 August 2004.
b. The Court’s assessment
The Court reiterates that under Article 5 § 2 of
the Convention any person arrested must be told, in simple,
non-technical language that he can understand, the essential legal
and factual grounds for his arrest, so as to be able, if he sees fit,
to apply to a court to challenge its lawfulness in accordance with
Article 5 § 4. Whilst this information must be conveyed
“promptly” (in French: ‘dans le plus court
délai’), it need not be related in its entirety by
the arresting officer at the very moment of the arrest.
Whether the content and promptness of the information
conveyed were sufficient is to be assessed in each case according to
its special features (see Fox, Campbell and Hartley v. the United
Kingdom, judgment of 30 August 1990, Series A no. 182, § 40).
Moreover, when a person is arrested on suspicion of having committed
a crime, Article 5 § 2 neither requires that the necessary
information be given in a particular form, nor that it consists of a
complete list of the charges held against the arrested person (see X.
v. Germany, no. 8098/77, Commission decision of 13 December
1978, DR 16, p. 111). Furthermore, when a person is arrested with a
view to extradition, the information given may be even less complete
(see K. v. Belgium, no. 10819/84, Commission decision of
5 July 1984, DR 38, p. 230). However, this information
should be provided to the detained in an adequate manner so that the
persons knows of the reasons relied on to deprive him of his liberty
(see Van der Leer v. the Netherlands, judgment of 21 February
1990, Series A no. 170-A, p. 13, § 28, and Shamayev and
Others v. Georgia and Russia, no. 36378/02, § 413, ECHR
2005-III).
Furthermore, the Court notes that in Fox, Campbell
and Hartley (see Fox, Campbell and Hartley v.
the United Kingdom, 30 August 1990, § 40, Series A no.
182), which concerned detention under Article 5 § 1(c)
of the Convention, the applicants were given reasons for their arrest
within a maximum of seven hours after arrest, which the Court
accepted as “prompt” (referred to above, § 42). A
violation of Article 5 § 2 was found on the basis of a delay of
76 hours in providing reasons for detention (see Saadi v the United
Kingdom [GC], no. 13229/03, § 84, ECHR 2008 ...) as
well as a delay of ten days (see Rusu v. Austria, no.
34082/02, § 43, 2 October 2008).
Turning
to the facts of the instant case, the Court notes that the parties
differed as to the exact time and date when the applicant found out
about the reasons for his detention. In particular, the applicant
claimed that he found out about the reasons for his detention on
13 September 2004 only (see paragraph 141 above). The
Government disagreed with it and stated that the applicant was
informed about these reasons some forty minutes after his arrest,
after the prosecutor had been informed about the applicant’s
detention, i.e. after 10.00 p.m. on 23 August 2004.
For the Court, taking into account its case-law cited
above (see paragraphs 144 – 146 above), a forty minutes’
delay in informing the applicant of the reasons for his arrest would
not, prima facie, raise an issue under Article 5 § 2
of the Convention. However, the only document relied on by the
Government is the detention record referred to above, and it does not
record the time or date of the applicant’s signature. Further,
it appears from the records of the sobering up facility that the
applicant was not at the police station forty minutes after his
arrest, but at the facility. There is thus no reliable indication of
whether, and if so when, in the period from 23 August to
13 September 2004, the applicant was informed that his detention
was with a view to extraditing him to Kazakhstan.
Accordingly, the Court finds that there has been a
violation of Article 5 § 2 of the Convention.
3. The applicant’s complaints under Article 5 §
4 of the Convention
149. 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.”
150. The
Government disagreed, stating that such an effective procedure
existed in the Ukrainian domestic law. They referred to Articles 106,
165-2 and 382 of the Code of Criminal Procedure, which specified the
procedure for examining appeals against preventive measures. They
further maintained that on 8 October 2004 the Plenary Supreme
Court had adopted a practice recommendation concerning review of
complaints concerning extradition matters.
151. The
Court reiterates the relevant principles established in its case-law
regarding the interpretation of Article 5 § 4 of the Convention
(see Soldatenko, cited above, § 125):
“... 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).”
Applying
the aforementioned principles to the facts of the present case, the
Court notes that the applicant was arrested and held in detention as
from 9.20 p.m. on 23 August 2004. He is still detained.
During that time, the applicant unsuccessfully initiated proceedings
for reviews of lawfulness of his detention from October 2004
onwards, before various courts (see paragraphs 35 – 60 above).
These proceedings gave rise to no final decision as to the lawfulness
of the applicant’s continued detention or as to whether he
should have been released. In particular, the requests for release
(see paragraph 47 above) were not examined on their merits, as
according to the domestic courts they fell under Article 106 of the
Code of Criminal Procedure and concerned criminal proceedings
instituted against the applicant in Kazakhstan (see paragraphs 45
above). Similar conclusions were reached by the Pechersky District
Court of Kyiv in its judgment of 1 July 2005 (see paragraph 52
above), which was upheld on appeal. The Zhovtnevy Court concluded
that the ground for the applicant’s detention was an
extradition warrant given by the General Prosecutor’s Office
and not a court decision (see paragraph 59 above). That court also
ruled that the applicant’s administrative complaint for release
under the Code of Civil Procedure could not be examined as it was
lodged according to the wrong procedure (see paragraph 45 above).
As
to the legislation referred to by the Government, the Court recalls
that it has already found that the relevant provisions of the Code of
Criminal Procedure concerned detention in the course of the domestic
criminal proceedings and not extradition proceedings (see Soldatenko,
cited above, § 126). In particular, the Government have not
indicated how Articles 106, 165-2 and 382 of the Code of Criminal
Procedure, as well as the Resolution of the Plenary Supreme Court of
8 October 2004 could provide the review
required by Article 5 § 4. In this respect, the Court also
refers to its findings under Article 5 § 1 of the Convention
concerning the lack of legal provisions in Ukrainian law governing
the procedure for detention pending extradition (see paragraph 131
above). It considers that these findings are equally pertinent in the
context of Article 5 § 4 of the Convention. In particular, the
Government have not demonstrated that the applicant had at his
disposal any effective and accessible procedure by which he could
challenge the lawfulness of his detention pending extradition.
154. The
Court, having regard to the applicant’s attempts to bring about
a review of the lawfulness of his detention, its findings under
Article 5 § 1 of the Convention (see paragraphs 137 and 140
above) and those in the judgment of Soldatenko
(cited above), concludes that there has been
a violation of Article 5 § 4 of the Convention
in the present case.
4. The applicant’s complaints under Articles 5 §
5 of the Convention
The
applicant initially complained under Article 5 § 5 that he did
not have an enforceable right to compensation as regards the
violation of his rights under Article 5 §§ 1(c), (e) and
(f), 2, 3 and 4 of the Convention. In particular, he mentioned that
domestic law made no provision for compensation for unlawful
detention pending extradition. Article 5 § 5 provides:
“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.”
The
Government made no comments on these submissions.
Article
5 § 5 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 (see Stoichkov v.
Bulgaria, no. 9808/02, § 72, 24 March 2005). 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
this connection, the Court notes that in the present case it has
found violations of paragraphs 1, 2 and 4 of Article 5. It follows
that Article 5 § 5 is applicable. The Court must
therefore establish whether or not Ukrainian law affords the
applicant an enforceable right to compensation for the breaches of
Article 5 in his case.
The
Court notes that the applicant’s deprivation of liberty is not
in breach of domestic law. He is not, therefore, entitled to
compensation under the Ukrainian Law “On the Procedure for the
Compensation of Damage Caused to the Citizen by the Unlawful Actions
of Bodies of Inquiry, Pre-trial Investigation, Prosecutors and
Courts” of 1 December 1994 (see Volokhy v. Ukraine,
no. 23543/02, § 28, 2 November 2006), as that Act provides for
compensation only in cases where the detention is “unlawful”.
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. There has therefore been a violation of that
provision.
F. Alleged violation of Article 34 of the Convention
On
12 March 2007 the applicant brought an additional complaint, stating
that the applicant could not receive and send correspondence from and
to his advocate. In particular, the lawyer sent letters to the
applicant on 27 January, 13 February and 4 March 2007, which
were returned to the applicant’s lawyer from the SIZO no. 27 as
the lawyer was not authorised, by the relevant investigative
authority, to correspond with the applicant. The applicant’s
lawyer stated that the Ukrainian authorities had violated Article 34
of the Convention, which provides:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
The
applicant’s representatives further stated that pressure was
exerted on the applicant to withdraw his application to the Court,
which was confirmed by his letters of 3 September 2008 sent from SIZO
no. 27 of the Kharkiv region and of 6 November 2008 sent through his
representative.
The
Government stated that the applicant’s rights under Article 34
had not been infringed and that he had access to his representatives.
They disagreed with the applicant’s submissions.
The Court reiterates that it is of the utmost
importance for the effective operation of the system of individual
petition instituted by Article 34 of the Convention that
applicants and potential applicants are able to communicate freely
with the Court without being subjected to any form of pressure from
the authorities to withdraw or modify their complaints (see Akdivar
and Others v. Turkey, judgment of 16 September 1996, Reports
1996-IV, p. 1219, § 105; Aksoy v. Turkey, judgment of
18 December 1996, Reports 1996-VI, p. 2288, § 105 and
Assenov and Others v. Bulgaria, 28 October 1998, §
169, Reports of Judgments and Decisions 1998 VIII). The
expression “any form of pressure” must be taken to cover
not only direct coercion and flagrant acts of intimidation but also
improper indirect acts or contact designed to dissuade or discourage
applicants from pursuing a Convention remedy (see Kurt v. Turkey,
judgment of 25 May 1998, Reports 1998-III, pp. 1192-93, § 160).
Moreover, the question whether contact between the authorities and an
applicant constitutes an unacceptable practice from the standpoint of
Article 34 must be determined in the light of the particular
circumstances of the case. In that connection, the Court must assess
the vulnerability of the complainant and the risk of his being
influenced by the authorities (see Akdivar and Others, p.
1219, § 105, and Kurt, pp. 1192-93, § 160, both
cited above). The applicant’s position might be particularly
vulnerable when he is held in custody with limited contacts with his
family or the outside world (see Cotleţ v. Romania,
no. 38565/97, § 71, 3 June 2003).
In
the present case, the Court finds no evidence whatsoever that the
applicant could not communicate freely with any of his
representatives or that they were hindered in their communications
with him. Therefore, the alleged interference with the applicant’s
lawyer’s correspondence cannot be seen as undue interference
with the effective exercise of the applicant’s right of
individual petition.
As
to the applicant’s letter of 3 September 2008, in which he
stated that he wished to withdraw his application, with the
accompanying letter from the Governor of the SIZO, confirming that
the authorities knew about the content of the letter and the
applicant’s wish to withdraw the application, the Court
considers that this letter came about as the result of the
applicant’s personal decision to withdraw his application,
whether under influence of the State authorities or not. However, the
Court considers that the fact that, rather than forwarding the
applicant’s letter as it stood, the Governor of the SIZO sent
it as an attachment to a covering letter, making comments on its
contents, is not compatible with the safeguards of Article 34 of
the Convention, regardless of whether it had any bearing on the
applicant’s communication with the Court. Consequently, the
Government have failed to respect their undertaking under Article 34
of the Convention. The Court finds it unnecessary to review the other
aspects of the applicant’s complaints.
III. 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 5,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government considered that a finding of a violation would constitute
sufficient just satisfaction.
Making
its assessment on an equitable basis, the Court allows the
applicant’s claim for just satisfaction in full and awards the
applicant EUR 5,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
The
applicant’s representative claimed EUR 4,000 for the costs and
expenses incurred by him in the proceedings before the Court.
The
Government stated that the case file contained no information or
documents confirming payment of the lawyer’s fees.
The
Court considers that it has not been shown that the expenses were
actually and necessarily incurred and rejects the aforementioned
claim in full.
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
Rejects the Government’s objections
as to the admissibility of the application;
Declares the application admissible;
Holds that the applicant’s extradition to
Kazakhstan would not violate Article 2 of the Convention;
Holds that the applicant’s extradition to
Kazakhstan would be in violation of Article 3 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds that it is not necessary to examine
whether the applicant’s extradition to Kazakhstan would be in
violation of Article 6 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant’s
detention from 23 August to 13 September 2004;
Holds that there has been a violation of Article
5 § 1 (f) of the Convention in respect of the applicant’s
detention from 13 September 2004 onwards;
Holds that there has been a violation of
Articles 5 § 2 of the Convention;
Holds that there has been a violation of
Article 5 § 4 of the Convention;
Holds that there has been a violation of
Article 5 § 5 of the Convention;
Holds that the Government have failed to
respect their undertaking under Article 34 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
Ukraine 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 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
