AS TO THE ADMISSIBILITY OF
by Aleksandr Leonidovich GARKAVYY
against Ukraine and the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 17 February 2009 as a Chamber composed of:
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 13 May 2007,
Having deliberated, decides as follows:
The applicant, Mr Aleksandr Leonidovich Garkavyy, is a Ukrainian national who was born in 1973 and is currently detained.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings in the Czech Republic
On 30 March 2004 the Prague Municipal Court (městský soud) found the applicant guilty of murder and unlawful possession of arms under Articles 219 §§ 1, 2 h) and 185 § 1 of the Criminal Code, sentenced him to fourteen years’ imprisonment and ordered his expulsion from the Czech Republic, in accordance with Article 57 of the Criminal Code. The court considered the applicant a fugitive and therefore decided in his absence. The applicant’s interests were represented by defence counsel pursuant to Article 304 of the Code of Criminal Procedure.
On 8 September 2004 the High Court (Vrchní soud), on an appeal by the applicant’s defence counsel, upheld the judgment of the Municipal Court. It pointed out that an appeal on points of law to the Supreme Court lay against its decision; the appeal on points of law should be lodged within two months of the date of its notification through defence counsel.
Pursuant to Article 306 § 1 of the Code of Criminal Procedure, the aforesaid decisions were notified only to the applicant’s defence counsel.
On 7 October 2004 the Municipal Court ordered the applicant’s arrest.
The applicant received a copy of the Prague Municipal Court’s judgment on 19 April 2006.
2. Proceedings in Ukraine
According to the applicant, on 27 April 2003 the applicant came back from the Czech Republic, which he had been visiting as a tourist. Thereafter he lived at his registered place of residence and worked in Ukraine.
On 28 January 2006 he was arrested by the police in the city of Kyiv. At the police station he was asked about his stay in the Czech Republic. This date of the applicant’s arrest was mentioned in the letter of 17 February 2006 from the Deputy Head of the Kyiv City Department for Combating Organised Crime of the Ministry of the Interior (the Kyiv Police Department) to the applicant’s mother.
On 7 February 2006 the applicant was taken to the Kyiv Holosyiyvskyy District Court (the District Court), which decided to detain him for forty days under Articles 12 and 16 of the Convention on Extradition 1957, on the basis of the arrest warrant issued by the Prague Municipal Court on 30 March 2004. The decision mentioned that the applicant was a Ukrainian national and that he had been arrested on 3 February 2006.
On 13 March 2006 the Kyiv Police Department requested the District Court to extend the applicant’s detention on the basis of the request of the Ministry of Justice of the Czech Republic to the Ministry of Justice of Ukraine on transfer of the criminal case against the applicant under the European Convention on the Transfer of Proceedings in Criminal Matters.
On 14 March 2006 the District Court extended the applicant’s detention for thirty days under Articles 32 and 33 of the European Convention on the International Validity of Criminal Judgments.
The applicant was not present at court and received the copy of this decision only ten days later.
On 20 March 2006 the Kyiv City Court of Appeal (the Court of Appeal) upheld the decision of 14 March 2006.
On an unknown date the materials in the criminal case file against the applicant were received by the Ministry of Justice and transferred to the Supreme Court of Ukraine for examination.
By a letter of 7 April 2006, the Supreme Court of Ukraine referred the case file materials to the Court of Appeal to bring the judgment of the Czech courts in compliance with Ukrainian law under the Convention on the Transfer of Sentenced Persons. The Court of Appeal scheduled the case for a hearing on 27 April 2006.
On 26 April 2006 the applicant’s lawyer submitted a request to the Court of Appeal, stating that several different international treaties on cooperation in criminal matters had been applied in the applicant’s case, which meant that the competent authorities of the Czech Republic and Ukraine had not decided what treaty was to serve as the basis for enforcement of the judgment against the applicant. Therefore, in the lawyer’s opinion, the European Convention on the International Validity of Criminal Judgments was an appropriate legal basis in the applicant’s case and therefore the judgment of the Czech court could not be enforced due to the fact that the applicant was tried and sentenced in absentia and Ukraine had made a reservation to the said treaty, refusing to enforce judgments rendered in absentia. The lawyer requested to postpone the hearing scheduled on 27 April 2006, to request the Czech authorities for additional documents, to give him and the applicant the opportunity to study the case file and release the applicant.
On 15 May 2006 the lawyer submitted another request to the Court of Appeal, repeating his arguments about the principle of refusing to enforce judgments rendered in absentia, expressed by Ukraine in the law on ratification of the European Convention on the Transfer of Proceedings in Criminal Matters. He further submitted that other European treaties in criminal matters could not apply either. He noted in particular that Article 3 of the Convention on the Transfer of Sentenced Persons required the consent of the sentenced person for his transfer to the requested State and that the applicant did not give such consent. He requested, therefore, that the Czech authorities’ request for their judgment to be brought into compliance with Ukrainian law be refused.
On 24 May 2006 the applicant’s lawyer made further written submissions to the Court of Appeal. He reiterated that the applicant had been absent for the whole of the criminal proceedings against him in the Czech Republic. He repeated the arguments in his requests of 26 April and 24 May 2006. In addition he noted that although the Additional Protocol to the Convention on the Transfer of Sentenced Persons foresaw a possibility of transferring the sentenced person without his consent, it applied only to persons who had fled from justice to their home country after the trial, and could not apply to persons tried in absentia. He also noted that the instructions of the Supreme Court in its letter of 7 April 2006 could not be binding on the Court of Appeal, as the above letter was not a procedural document. The lawyer requested that the Court of Appeal reject the request of the Czech authorities and release the applicant.
On 16 June 2006 the Court of Appeal examined the case and decided to recognise the judgment of the Prague Municipal Court of 30 March 2004 in compliance with Ukrainian legislation. In its decision the court noted that the applicant, a citizen of Ukraine, could not be extradited to the Czech Republic. Given that the applicant had been sentenced in the Czech Republic and the judgment and case file materials were transferred to Ukraine in order to recognise the judgment and to convert the sentence, the court considered that it was actually the de facto and de jure transfer of the applicant as a sentenced person for serving his sentence in Ukraine. The court considered that such solution was based on paragraph 1 of Article 2 of the Additional Protocol to the Convention on the Transfer of Sentenced Persons and that paragraph 2 of the same Article confirmed the lawfulness of the applicant’s detention in Ukraine.
As to the applicant’s argument that Ukraine undertook not to enforce judgments rendered in absentia, the court noted that the Czech Republic was not a party to the European Convention on the International Validity of Criminal Judgments to which Ukraine made such reservation. Furthermore, the court considered that the term “in absentia” should be interpreted in the light of the reasons for absence of the person concerned from the court proceedings. The court observed that there could be plausible reasons for the absence of the accused and considered that the legislator had such situations in mind such situations when it made reservation in the law on ratification of the European Convention on the International Validity of Criminal Judgments. On the other hand, if the accused knowingly absconded, such a person could be sentenced in absentia. The court noted that it could not question what had been established by the Prague Municipal Court, which had stated in its decision that the applicant had absconded and had therefore been sentenced in absentia. The court continued:
“Conviction in absentia of [Mr] Garkavyy O. L. on the territory of the Czech Republic, by analogy, fully corresponds to the provisions of the second paragraph of Article 262 of the C[ode of] C[riminal] P[rocedure] of Ukraine concerning possibility and lawfulness of examination of the judicial case in absence of the convict, in particular, when he is outside the territory of Ukraine and avoids appearing before the court.”
The court further noted that the fact that the Ministry of Justice of Ukraine had accepted the request of their Czech counterpart demonstrated the readiness of the Ukrainian State to comply with the judgment despite the fact that it had been rendered in absentia.
The court noted
“Erroneous reference by the Ministry of Justice of the Czech Republic and the Ministry of Justice of Ukraine in their cover letters to the sending of the judgment to bring it into compliance with the Ukrainian legislation in force under the European Convention on the Transfer of Proceedings in Criminal Matters does not deprive the court of the right to apply the Convention on the Transfer of Sentenced Persons, on which the representative of the defendant insisted. On the contrary, the Kyiv City Court of Appeal is obliged to examine this judicial case under the rules of the latter Convention, as correctly indicated in the cover letter of the Supreme Court, because only such a procedure of judicial examination corresponds to the spirit of this Convention as well as of the Constitution of Ukraine and the current criminal and criminal procedure legislation of Ukraine.
It means that application of the European Convention on the Transfer of Sentenced Persons in examination of the present judicial case is the only correct and lawful action.”
The court concluded that there were no procedural or other legal obstacles to recognising the judgment of the Prague Municipal Court in compliance with Ukrainian legislation, and converted the sentence under the Criminal Code of Ukraine. The court left the sentence and the award of Prague Court unchanged.
On 14 July 2006 the applicant’s lawyer appealed against this decision to the Supreme Court. In his appeal he complained that Ukrainian legislation and European treaties on criminal matters had been applied incorrectly. The applicant’s lawyer noted that despite the fact that the European Convention on the International Validity of Criminal Judgments could not apply between Ukraine and the Czech Republic, the law on ratification of this treaty was in force and had to be used in any case. He noted that the applicant’s trial had been conducted in his absence and that there was nothing to indicate that the Czech authorities had tried to inform the applicant about the trial or to use the Convention on Mutual Assistance in Criminal Matters to involve him in the proceedings. He further noted that neither international treaties nor Ukrainian law made application of provisions about judgment rendered in absentia dependent on reasons for absence before the courts and that the Court of Appeal made its own interpretation of the term “in absentia” in contravention of the law. He also criticised the analogy used by the court in comparing the trial in absentia in the Czech Republic with the provisions of the Code of Criminal Procedure of Ukraine. He further noted that the Convention on the Transfer of Sentenced Persons and the Additional Protocol to it were inapplicable in the applicant’s case, because the judgment against him had been rendered in absentia and the Ministry of Justice of the Czech Republic had not made a request for the applicant to be transferred as a sentenced person. He noted that the Czech Republic and Ukraine had agreed on the application of the European Convention on the Transfer of Proceedings in Criminal Matters, and the Court of Appeal had more than fulfilled the agreement between the Ministry of Justice of Ukraine and the Ministry of Justice of the Czech Republic by declaring their reference to the European Convention on the Transfer of Proceedings in Criminal Matters erroneous. Furthermore, Article 22 of the Convention on the Transfer of Sentenced Persons clearly stipulated that it was for the central authorities to decide under what treaty on international legal assistance their requests should be treated. He further noted that the court did not check whether the judgment of the Czech court was final and enforceable. He requested the Supreme Court to quash the decision of the Court of Appeal and to reject the request of the Czech authorities concerning the applicant.
On 12 December 2006 the Supreme Court upheld the decision of the Court of Appeal. It noted, in particular, that the judgment of the Czech Court was final, that the applicant could not be extradited and that application of the Convention on the Transfer of Sentenced Persons in the applicant’s case was reasonable. In addition, it noted that the Court of Appeal interpreted correctly the issue of the applicant’s trial in absentia with reference to Article 262 of the Code of Criminal Procedure.
B. Relevant international and domestic law
1. The Code of Criminal Procedure of the Czech Republic
Title Two of Chapter Twelve concerns the proceedings against a fugitive.
Under Article 304 the accused shall always have defence counsel who has the same rights as the accused.
Pursuant to Article 306 § 1 all written documents addressed to the accused shall be served only on defence counsel. Under Article 306 § 2 the summons to the main hearing and the public session shall be published as appropriate. The main hearing or public session shall then also be held in the absence of the accused regardless of whether he has learned about it.
Under Article 306a § 2 if proceedings against a fugitive end with a final judgment and the reasons for which the proceedings have been conducted against the fugitive cease to exist, the first-instance court, on a proposal by the accused submitted within eight days of delivery of the judgment, shall quash the judgment and hold the main hearing again.
Chapter Eighteen concerns retrial. Under Article 278 § 1 a retrial of criminal proceedings which have ended in a final judgment shall be permitted if facts or evidence unknown to the court before emerge and these themselves or in combination with facts and evidence known before would justify another decision on guilt or would entitle the injured party to compensation for damage or with respect to which the originally imposed sentence would be obviously disproportionate to the level of danger to society of the act committed, for the society or the circumstances of the perpetrator or the imposed type of sentence would be in obvious contradiction to the purpose of the sentence.
Under Article 278 § 4 retrial of criminal proceedings shall be permitted also if the final judgment finds that the police body, investigator, prosecutor or judge in the original proceedings have breached their duties by acting in a way which constitutes a criminal act.
Pursuant to Article 280 § 1 retrial shall be permitted only at the request of an authorised person. Article 280 § 3 provides that in addition to the accused, persons who are entitled to appeal in his favour may also request a retrial in favour of the accused. If they may also appeal against the accused’s will, they may request a retrial against his will. They may also make such a request after the accused’s death.
2. The relevant domestic law of Ukraine
a. Constitution of Ukraine
“International treaties that are in force and are agreed to be binding by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine.”
“...A citizen of Ukraine shall not be expelled from Ukraine or surrendered to another state...”
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law...”
b. Code of Criminal Procedure
Article 262. Participation of the defendant in court sittings
“Examination of the case in sittings of the court of first instance shall be conducted with the participation of the defendant, whose appearance before the court is obligatory.
Examination of the case in the absence of the defendant shall be allowed only in exceptional circumstances:
1) if the defendant is outside the territory of Ukraine and avoids appearing before the court;
2) if the defendant requests examination in his absence of a case concerning an offence not punishable by imprisonment. However, the court shall be entitled in this case to decide on obligatory appearance of the defendant.”
c. Law on ratification of the European Convention on the International Validity of Criminal Judgments
“...Ukraine will refuse:
...sanctions rendered in the absence of the defendant...”
3. International treaties pertinent to the case
a. European Convention on Extradition
Both Ukraine and the Czech Republic are parties to the Convention. It entered into force in respect of the Czech Republic on 1 January 1993 and in respect of Ukraine on 9 June 1998. When ratifying the Convention, Ukraine made a reservation that it would not extradite citizens of Ukraine to another State.
Article 16 of the Convention reads as follows:
Article 16 – Provisional arrest
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
2. The request for provisional arrest shall state that one of the documents mentioned in Article 12, paragraph 2.a, exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought.
3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request.
4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.
5. Release shall not prejudice re arrest and extradition if a request for extradition is received subsequently.”
b. European Convention on the International Validity of Criminal Judgments
This Convention entered into force in respect of Ukraine on 12 June 2003. Ukraine declared that it reserved the right to refuse enforcement of sanctions rendered in absentia.
The Czech Republic is not a party to this Convention.
Articles relied on by the Ukrainian court extending the applicant’s detention read as follows:
“1. When the requesting State has requested enforcement, the requested State may arrest the person sentenced:
a. if, under the law of the requested State, the offence is one which justifies remand in custody, and
b. if there is a danger of abscondence or, in case of a judgment rendered in absentia, a danger of secretion of evidence.
2. When the requesting State announces its intention to request enforcement, the requested State may, on application by the requesting State arrest the person sentenced, provided that requirements under a and b of the preceding paragraph are satisfied. The said application shall state the offence which led to the judgment and the time and place of its perpetration, and contain as accurate a description as possible of the person sentenced. It shall also contain a brief statement of the facts on which the judgment is based.”
“1. The person sentenced shall be held in custody in accordance with the law of the requested State; the law of that State shall also determine the conditions on which he may be released.
2. The person in custody shall in any event be released:
a. after a period equal to the period of deprivation of liberty imposed in the judgment;
b. if he was arrested in pursuance of Article 32, paragraph 2, and the requested State did not receive, within 18 days from the date of the arrest, the request together with the documents specified in Article 16.”
c. European Convention on the Transfer of Proceedings in Criminal Matters
Both Ukraine and the Czech Republic are parties to the Convention. It entered into force in respect of the Czech Republic on 1 January 1993 and in respect of Ukraine on 29 December 1995.
Relevant provisions of the Convention read as follows:
“1. A Contracting State may request another Contracting State to take proceedings in any one or more of the following cases:
a. if the suspected person is ordinarily resident in the requested State;
b. if the suspected person is a national of the requested State or if that State is his State of origin;
c. if the suspected person is undergoing or is to undergo a sentence involving deprivation of liberty in the requested State;
d. if proceedings for the same or other offences are being taken against the suspected person in the requested State;
e. if it considers that transfer of the proceedings is warranted in the interests of arriving at the truth and in particular that the most important items of evidence are located in the requested State;
f. if it considers that the enforcement in the requested State of a sentence if one were passed is likely to improve the prospects for the social rehabilitation of the person sentenced;
g. if it considers that the presence of the suspected person cannot be ensured at the hearing of proceedings in the requesting State and that his presence in person at the hearing of proceedings in the requested State can be ensured;
h. if it considers that it could not itself enforce a sentence if one were passed, even by having recourse to extradition, and that the requested State could do so;
2. Where the suspected person has been finally sentenced in a Contracting State, that State may request the transfer of proceedings in one or more of the cases referred to in paragraph 1 of this article only if it cannot itself enforce the sentence, even by having recourse to extradition, and if the other Contracting State does not accept enforcement of a foreign judgment as a matter of principle or refuses to enforce such sentence.”
“Upon receipt of a request for proceedings accompanied by the documents referred to in Article 15, paragraph 1, the requested State shall have jurisdiction to apply all such provisional measures, including remand in custody of the suspected person and seizure of property, as could be applied under its own law if the offence in respect of which proceedings are requested had been committed in its territory.”
d. Convention on the Transfer of Sentenced Persons
Both Ukraine and the Czech Republic are parties to the Convention. It entered into force in respect of the Czech Republic on 1 January 1993 and in respect of Ukraine on 1 January 1996.
Article 9 – Effect of transfer for administering State
1. The competent authorities of the administering State shall:
a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions.
4. Any State which, according to its national law, cannot avail itself of one of the procedures referred to in paragraph 1 to enforce measures imposed in the territory of another Party on persons who for reasons of mental condition have been held not criminally responsible for the commission of the offence, and which is prepared to receive such persons for further treatment may, by way of a declaration addressed to the Secretary General of the Council of Europe, indicate the procedures it will follow in such cases.
Article 22 – Relationship to other Conventions and Agreements
“...4. If a request for transfer falls within the scope of both the present Convention and the European Convention on the International Validity of Criminal Judgments or another agreement or treaty on the transfer of sentenced persons, the requesting State shall, when making the request, indicate on the basis of which instrument it is made.”
4. Additional Protocol to the Convention on the Transfer of Sentenced Persons
Both Ukraine and the Czech Republic are parties to the Convention. It entered into force in respect of the Czech Republic on 1 February 2003 and in respect of Ukraine on 1 November 2003. Relevant provisions of the Protocol read as follows:
Article 2. Persons having fled from the sentencing State
1. Where a national of a Party who is the subject of a sentence imposed in the territory of another Party as a part of a final judgment, seeks to avoid the execution or further execution of the sentence in the sentencing State by fleeing to the territory of the former Party before having served the sentence, the sentencing State may request the other Party to take over the execution of the sentence.
2. At the request of the sentencing State, the administering State may, prior to the arrival of the documents supporting the request, or prior to the decision on that request, arrest the sentenced person, or take any other measure to ensure that the sentenced person remains in its territory, pending a decision on the request. Requests for provisional measures shall include the information mentioned in paragraph 3 of Article 4 of the Convention. The penal position of the sentenced person shall not be aggravated as a result of any period spent in custody by reason of this paragraph.
3. The consent of the sentenced person shall not be required to the transfer of the execution of the sentence.
The explanatory report to the Additional Protocol notes that Article 2 “envisages a situation where a national of State A is sentenced in State B and subsequently leaves State B before or while serving the sentence and voluntarily enters State A.” It further provides that, this article does not cover the situations where a national of State A is tried and sentenced in absentia in State B.
The applicant complained under Article 6 of the Convention about a violation of procedural rights during his trial in absentia in the Czech Republic. He further complains without reference to any Article about unlawfulness of his detention under the decisions of Ukrainian courts.
The Court notes that the final decision in the criminal case brought against the applicant was taken by the Prague High Court 8 September 2004. It was open to the applicant to lodge, through his defence counsel, an appeal on points of law which had to be submitted within the two-month time-limit after notification of the High Court decision to the applicant’s defence counsel. Moreover, a constitutional appeal to be filed within the sixty-day time-limit from the final domestic decision was also available to the applicant. However, it does not appear that these domestic remedies were used by the applicant in the present case. In any event, even assuming that the applicant could be dispensed from pursuing them due to the late notification of the Czech courts’ decisions, that notification took place on 19 April 2006, which was more than six months before the date on which the application was submitted to the Court, namely 16 May 2007.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court, which is master of the characterisation to be given in law to the facts of the case, considers that this complaint of the applicant may raise an issue under Article 5 § 1 of the Convention, which reads, in so far as relevant, as follows:
Article 5 § 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:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning unlawfulness of his detention;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer