(Application no. 43707/07)
10 December 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 Koktysh v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar.
Having deliberated in private on 17 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case and the extradition proceedings
17. On 3 August 2007 the Balaklava Local Court decided that the applicant should remain in detention pending extradition.
B. Conditions of the applicant’s detention as presented by the applicant
23. From 6 July 2007 to date the applicant has been detained in the SIZO. The applicant submitted that during his transportation from the ITT to the SIZO he had been placed in a special van together with 12 other people while there had been space available for only 6. The temperature in the van reached 600C and there was neither drinking water nor ventilation.
24. In the SIZO, according to the applicant, he is detained in a 2 x 4 metre cell together with 9 other detainees. The cell has no ventilation or sufficient lighting and all of the detainees smoke apart from the applicant. The detainees can shower only once a week. The applicant stated that the medical assistance he received in the SIZO was inadequate.
C. Conditions of the applicant’s detention as presented by the Government
1. The ITT
25. On 25 June 2007 the applicant arrived at the ITT. He was questioned about his state of health by the officer on duty but the applicant did not complain about his health problems. During his stay in the ITT (25 June-5 July 2007 and 2-5 August 2007) the applicant did not complain about his health problems either.
26. From 26 June 2007 until 5 July 2007 the applicant was detained in cell no. 1. The cell measured 19.3 sq. m. At the material time from 16 to 21 persons were detained there.
27. From 2 August 2007 until 5 August 2007 the applicant was detained in cell no. 2, which measured 17.4 sq. m. 11 other persons were detained at that time together with the applicant.
28. Every cell was equipped with a WC and a wash-basin. The detainees were provided with bed sheets and were served hot food three times a day. The cells are regularly cleaned and disinfected. The detainees take a hot shower at the week-end or during the week if they so wish.
29. The ITT has a ventilation system which functions non-stop. The detainees also have a daily one-hour walk in two specially equipped yards.
30. The cells are equipped with two electric light-bulbs and the detainees also have access to daylight.
2. The SIZO
3. Conditions of transportation
II. RELEVANT LAW AND PRACTICE
A. Relevant international and domestic law and practice concerning extradition
B. Relevant domestic law concerning conditions of detention and transportation
Pre-Trial Detention Act 1993 (“the Act”)
C. Relevant international materials concerning the situation of human rights in Belarus
1. Resolution 1606 (2008) of the Parliamentary Assembly of the Council of Europe on abuse of the criminal justice system in Belarus
“... 2. Such abuses take different forms, including:
2.4. the continued use of the death penalty and the particularly cruel, secretive method of execution by gunshot, without informing the condemned persons themselves or their families until the last moment. Belarus is the last country on the European continent that still implements the death penalty. The existence of the death penalty excludes the extradition to Belarus of any person accused of a capital offence by member states of the Council of Europe...”
2. Resolution 1671 (2009) of the Parliamentary Assembly of the Council of Europe on the situation in Belarus
“...17. The Assembly regrets that capital executions can still be carried out in Belarus, despite the reduction of the categories of crimes for which they can be inflicted, a decrease in the number of death sentences handed down in such cases and the fact that no executions have been carried out since October 2008 according to official statements. The Assembly recalls that, in the current Constitution, the death penalty is considered as a transitional measure and that no legal impediment prevents either the President or the Parliament from introducing a moratorium on executions...”
3. UN Human Rights Council: Report of the Special Rapporteur on the Situation of Human Rights in Belarus, 15 January 2007, A/HRC/4/16
“...The Special Rapporteur regrets that the Government of Belarus, in 2006 as in 2004 and 2005, has not responded favourably to his request to visit the country and has in general not cooperated with him in the fulfilment of his mandate...
...13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pre-trial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police...”
4. UN General Assembly, Situation of human rights in Belarus : resolution / adopted by the General Assembly, 20 March 2008, A/RES/62/169
“...The situation of human rights in Belarus in 2007 continued to significantly deteriorate, as documented in the reports of the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe and the report of the Special Rapporteur on the situation of human rights in Belarus, which found that systematic violations of human rights continue to take place in Belarus...
...1. [The Assembly] expresses deep concern:
(a) About the continued use of the criminal justice system to silence political opposition and human rights defenders, including through arbitrary detention, lack of due process and closed political trials of leading opposition figures and human rights defenders;
(b) About the failure of the Government of Belarus to cooperate fully with all the mechanisms of the Human Rights Council, in particular with the Special Rapporteurs on the situation of human rights in Belarus, while noting the serious concern relating to the continued and systematic violations of human rights in Belarus...”
5. The Country Report on Human Rights Practices by the US Department of State
“The government’s human rights record remained very poor as government authorities continued to commit frequent serious abuses...
...Prison conditions remained extremely poor, and reports of abuse of prisoners and detainees continued. Arbitrary arrests, detentions, and imprisonment of citizens for political reasons, criticizing officials, or for participating in demonstrations also continued...
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices; however, the Belarusian Committee for State Security (BKGB), the Special Purpose Detachment riot police (OMON), and other special forces continued to beat detainees and demonstrators...
...Police also beat individuals during arrests and in detention for organizing or participating in demonstrations or other opposition activities...
...On September 2, 2008, the International Federation of Human Rights (FIDH) in cooperation with the domestic human rights NGO "Vyasna" released a joint report, Conditions of Detention in Belarus, based on interviews with more than 30 persons. The report noted "substantial evidence" of the use of torture and mistreatment of suspects during criminal and administrative investigations...
e. Denial of Fair Public Trial
The constitution provides for an independent judiciary; however, the government did not respect judicial independence in practice. Corruption, inefficiency, and political interference were prevalent in the judiciary.
There was evidence that prosecutors and courts convicted individuals on false and politically motivated charges, and that executive and local authorities dictated the outcomes of trials...”
6. Amnesty International Report on Human Rights 2009
...According to media reports, four people were executed during the year...
...In December, Belarus abstained on a UN General Assembly resolution calling for a worldwide moratorium on executions...”
D. Relevant international and domestic materials concerning conditions of detention and transportation
1. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules
“4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2 In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards; and
18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.
18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.
19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.
22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.
22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.
22.3 Food shall be prepared and served hygienically.
22.4 There shall be three meals a day with reasonable intervals between them.
27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.
32.2 The transport of prisoners in conveyances with inadequate ventilation or light, or which would subject them in any way to unnecessary physical hardship or indignity, shall be prohibited.”
2. European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (“the CPT”)
40. Relevant extracts from the reports of the Committee for the Prevention of Torture following the Committee’s visits to Ukraine in 1998 – 2002 can be found in the judgment in the case of Yakovenko v. Ukraine, (no. 15825/06, §§ 56-61).
3. The Ukrainian Parliament Commissioner for Human Rights
I. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 6 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S EXTRADITION TO BELARUS
The invoked Articles, in so far as relevant, read as follows:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ....”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“ In the determination of his civil rights and obligations or 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 ...”
1. The parties’ submissions
(a) The Government
(b) The applicant
2. The Court’s assessment
(a) The relevant principles
(b) Application of the above principles to the present case
II. ALLEGED VIOLATION OF ARTICLES 5 AND 13 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S DETENTION PENDING EXTRADITION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
III. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 13 OF THE CONVENTION IN RESPECT OF THE CIRCUMSTANCES OF THE APPLICANT’S ARREST AND CONDITIONS OF DETENTION AND TRANSPORTATION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
1. Alleged ill-treatment at the time of the applicant’s arrest
2. Conditions of detention
This part of the applicant’s complaints cannot be declared inadmissible for non-exhaustion of domestic remedies. Nor can it be rejected as being manifestly ill-founded or declared inadmissible on any other grounds. It should therefore be declared admissible.
1. Article 3 of the Convention
(a) General principles
(b) Application in the present case
i. Material conditions of the applicant’s detention in the ITT
ii. Material conditions of the applicant’s detention in the SIZO
iii. Medical assistance to the applicant
iv. Conditions of transportation
2. Article 13 of the Convention
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
7. Holds that there has been a violation of Article 5 § 1 of the Convention;
10. Holds that there has been a violation of Article 13 of the Convention in respect of the applicant’s complaints under Article 3 of the Convention about his conditions of detention;
(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 7,000 (seven thousands euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer