European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 48814/07
by Ivan Cheslavovich STANKEVICH
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 26 May 2009 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,

and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 10 November 2007,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant’s representative,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ivan Cheslavovich Stankevich, was a Belarusian national who was born in 1970. The applicant having died on 21 August 2008, his brother expressed the wish to pursue the application. The applicant was represented before the Court by Mr A. P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.

On 4 June 2007 the Prosecutor’s Office of the Republic of Belarus sent a request to the General Prosecutor’s Office of Ukraine (“the GPO”), seeking extradition of the applicant, who was wanted on suspicion of smuggling and illegal entrepreneurship and who, according to its information, resided in Ukraine.

On 6 July 2007 the applicant was apprehended by the Ukrainian police.

On 9 July 2007 the Gagarinskiy District Court of Sevastopol ordered the applicant’s detention for a period of 40 days. On 8 August 2007 the Sevastopol City Court of Appeal upheld the decision of 9 July 2007.

On 14 August 2007 the Gagarinskiy District Court of Sevastopol decided on the applicant’s further detention pending extradition, without fixing any time-limit. On 12 September 2007 the Sevastopol City Court of Appeal upheld the decision of the first-instance court.

On 28 August 2007 the GPO decided to allow the applicant’s extradition to Belarus.

By a letter of the same date, the applicant was informed that he could challenge the decision on his extradition before a competent national court. For this reason, the police were instructed not to enforce the extradition order for ten days.

In September 2007 the GPO informed its Belarusian counterpart about the suspension of the extradition proceedings under the interim measure indicated by the Court.

On 28 January 2008 the applicant’s lawyer lodged a request for the applicant’s release with the Gagarinsky District Court of Sevastopol.

On 10 April 2008 the district court rejected this request on the ground that the applicant had been arrested in compliance with the relevant international and national legal acts, the General Prosecutor’s Office had decided on the applicant’s extradition and the extradition had been suspended at the request of the European Court of Human Rights.

On 19 May 2008 the Sevastopol Court of Appeal upheld the decision of the first-instance court.

On 21 August 2008 the applicant died.

COMPLAINTS

The applicant complained that his extradition to Belarus would expose him to the risk of torture and unfair trial, contrary to Articles 3 and 6 of the Convention, and that he had no remedy with respect to these complaints as required by Article 13 of the Convention. He complained that his detention was in violation of Article 5 §§ 1 and 4 of the Convention and that he had no compensatory remedy with respect to these complaints as required by Article 5 § 5 of the Convention.

THE LAW

The applicant died on 21 August 2008. On 15 September 2008 the applicant’s brother informed the Court that he wished to pursue the application.

The Government left the issue of the locus standi of the applicant’s brother to the Court’s discretion. They noted, however, that following the applicant’s death, his complaints under Article 3 and 6 remained purely hypothetical and should be left without consideration. They further contended that there was an effective remedy to challenge extradition.

The applicant’s brother considered that the victim’s death could not lead to the conclusion that the applicant had lost his victim status under the Convention. He also submitted that he had locus standi in the proceedings.

As to the applicant’s complaints under Articles 3, 6 and 13 of the Convention, the Court notes that the complaints about the risk of violation of the Convention rights in case of extradition are closely and directly linked to the existence and persistence of personal risk. When such risk disappears there remains no arguable claim under Articles 3 and 6 of the Convention (see, mutatis mutandis, Svetlorusov v. Ukraine, 2929/05, §§ 37-38, 12 March 2009).

The Court notes that the applicant’s death brought the extradition proceedings against him to an end and the Court does not consider it necessary to continue examination of the applicant’s complaints under Articles 3 and 6 of the Convention. In the absence of any arguable claim under the above Articles, the Court is not required to consider whether there were effective domestic remedies, as required by Article 13, for his complaints. The Court considers that this part of the application must be struck out, as provided in Article 37 § 1 of the Convention.

As to the applicant’s complaints under Article 5 of the Convention, the Court notes that in several cases where the applicant has died after having lodged an application, it has taken into account the intention of the applicant’s heirs or close members of his or her family to pursue the proceedings. In this connection the Court has considered whether or not the persons wishing to pursue the proceedings were the applicant’s close relatives. Moreover, as a second criterion, the Court has examined whether the rights concerned were transferable. However, the question whether such claims are transferable to the persons seeking to pursue an application is not always the decisive criterion. On one hand the Court has found that certain rights, such as those guaranteed by Articles 2, 3, 5, 8, 9 and 14, were of an eminently personal and non-transferable nature (see Vääri v. Estonia (dec.), no. 8702/04, 8 July 2008, with further references). On the other, it considered that human-rights cases before the Court generally also have a moral dimension and persons close to an applicant may have a legitimate interest in seeing to it that justice is done even after the applicant’s death (see, mutatis mutandis, Lukanov v. Bulgaria, 20 March 1997, § 35, Reports of Judgments and Decisions 1997 II; Pisarkiewicz v. Poland, no. 18967/02, §§ 30-33, 22 January 2008; and Horváthová v. Slovakia, no. 74456/01, § 25-27, 17 May 2005).

Turning to the present case, the Court observes at the outset that Mr V. Stankevich is seeking to pursue the case concerning the alleged violation of the rights of his brother, the original applicant. Thus, the first condition of close kinship is met. However, the case concerns issues falling under Article 5 of the Convention, which are so closely linked to the person of the original applicant that they cannot be regarded as transferable. Therefore, the Court considers that the applicant’s brother does not have a legal interest to pursue the application.

Consequently, reiterating that the quality of Ukrainian law related to deprivation of liberty with a view to extradition had been already examined by the Court in a number of cases against Ukraine (see Soldatenko v. Ukraine, cited above, §§ 109-114 and 125-127, and Svetlorusov v. Ukraine, cited above, §§ 47-49 and 57-59) and considering that there exists no general interest in the present case which necessitates pursuing the examination of the complaints raised, the Court finds that the conditions in which a case may be struck out of its list, as provided in Article 37 § 1 of the Convention, are satisfied.

For these reasons, the Court by a majority

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen
Registrar President