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KONONTSEV v. RUSSIA - 19732/04 [2010] ECHR 1208 (29 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1208.html
Cite as:
[2010] ECHR 1208
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FIRST
SECTION
CASE OF KONONTSEV v. RUSSIA
(Application
no. 19732/04)
JUDGMENT
STRASBOURG
29 July
2010
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 Konontsev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19732/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Kyrgyz national, Valeriy Konontsev (“the
applicant”), on 7 June 2004.
The
applicant was represented by Ms A. Stavitskaya, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that, with a view to extradition to
Kyrgyzstan, his detention had been unlawful.
On
14 January 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background information and proceedings in Kyrgyzstan
The
applicant was born in Kyrgyzstan in 1966. It appears that he
currently lives in Kyrgyzstan.
On
21 August 1996 the Investigation Department of the Ministry of
National Security of Kyrgyzstan (“the Investigation
Department”) indicted the applicant on serious fraud charges.
According to the decision on indictment, the applicant had failed to
pay for 150 TV sets which he had received under a consignment
agreement with a joint stock company. On the same date the
Investigation Department ordered the arrest of the applicant. On
27 August 1996 the applicant’s name was put on a wanted
list.
B. Proceedings in Russia
1. Extradition proceedings
On
9 July 2003 the applicant was arrested in Russia (see paragraph
13 below).
On
29 August 2003 the General Prosecutor’s Office of Russia
received a request from their counterpart in Kyrgyzstan for the
extradition of the applicant.
On
6 April 2004 the Deputy Prosecutor General of Russia authorised
the extradition of the applicant to Kyrgyzstan. The applicant
challenged the extradition order in court.
On
13 May 2004 the Moscow City Court upheld the extradition order
as lawful and justified. The applicant appealed.
On
29 July 2004 the Supreme Court of Russia (“the Supreme
Court”) upheld the decision of 13 May 2004 on appeal.
From
the submitted materials, it appears that, on an unspecified date
after 29 July 2004, the applicant was extradited to Kyrgyzstan.
2. Detention pending extradition of the applicant
On
9 July 2003 the applicant was arrested in Russia and held in
custody, first at the Moscow-Paveletskiy temporary detention facility
and then at remand prison no. 77/4 in Moscow.
On
14 October 2003 the Babushkinskiy District Court of Moscow authorised
the detention pending extradition of the applicant under
Article 466 § 1 of the Code of Criminal Procedure
(“the CCP”) without providing a time-limit for his
detention.
On
9 June 2004 the applicant appealed against the decision of 13 May
2004 to the Supreme Court (see paragraph 10 above). In his appeal, he
also stated that his detention from 9 July to 29 August 2003 had been
unlawful because he had been detained without a court order and that
the overall length of his detention had been excessive.
In
its decision of 29 July 2004 the Supreme Court (see paragraph 11
above) left without examination the complaints concerning the
lawfulness of the applicant’s detention.
II. RELEVANT DOMESTIC LAW
For
a summary of domestic law provisions on detention on remand, see
Nasrulloyev v. Russia (no. 656/06, §§ 48-56,
11 October 2007).
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
The
applicant complained under Article 5 § 1 of the Convention that
his detention with a view to extradition had been unlawful. The
relevant parts of Article 5 § 1 read as follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(f) the lawful arrest or detention of ... a person
against whom action is being taken with a view to ... extradition.”
A. Submissions of the parties
The
applicant argued that his detention had been unlawful because the
authorities had not complied with the procedure prescribed by
domestic and international legislation. He also stressed that the
proceedings had not been conducted with the requisite diligence,
which had led to their protraction and had contributed to the length
of his detention.
The
Government submitted that the applicant’s detention had been
duly authorised on 14 October 2003 by the Babushkinskiy District
Court. They further noted that on 4 April 2006 the Constitutional
Court of Russia had issued a decision on a complaint similar to that
submitted by the applicant and therefore the provisions of domestic
legislation concerning extradition had been sufficiently clear,
foreseeable and precise. They also submitted that the domestic
authorities had demonstrated requisite diligence in the applicant’s
case and that the length of his detention had not been excessive.
B. The Court’s assessment
1. Admissibility
The Court notes that the
applicant’s complaint under Article 5 § 1 is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The
Court has previously noted that, where deprivation of liberty is
concerned, it is particularly important that the general principle of
legal certainty be satisfied. The requirement of “quality of
law” in relation to Article 5 § 1 implies that
where a national law authorises a deprivation of liberty it must be
sufficiently accessible, precise and foreseeable in application, in
order to avoid all risk of arbitrariness (see Baranowski
v. Poland, no. 28358/95, §§ 50-52, ECHR
2000-III, and Khudoyorov v. Russia, no. 6847/02,
§ 125, ECHR 2005-X (extracts)).
In
a number of its recent judgments, the Court has already found that
the provisions of the Russian law governing detention of persons with
a view to extradition were neither precise nor foreseeable in their
application and fell short of the “quality of law”
standard required under the Convention (see, for example,
Nasrulloyev, cited above, § 77; Ismoilov and
Others v. Russia, no. 2947/06, § 140, 24 April 2008;
Ryabikin v. Russia, no. 8320/04, § 130, 19 June
2008; Muminov v. Russia, no. 42502/06, § 122, 11
December 2008; and Khudyakova v. Russia, no. 13476/04, §
73, 8 January 2009).
Turning
to the circumstances of the present case, the Court notes that
the
applicant was detained in Russia pursuant to an arrest warrant issued
by a prosecutor’s office in Kyrgyzstan. His detention was not
confirmed by a Russian court, contrary to the provisions of Article
466 § 1 of the CCP, which
requires such authorisation unless the detention in the country
seeking extradition has been ordered by a court. Therefore, the
applicant’s detention pending extradition between 9 July and 14
October 2003 was not in accordance with a “procedure prescribed
by law” as required by Article 5 § 1 of the
Convention.
Furthermore,
as to the Government’s argument that the applicant’s
detention in view of his extradition was eventually authorised on 14
October 2003 by the Babushkinskiy District Court, the Court notes
that, apart from authorising his detention as of that date, the
domestic court did not order or take steps to ensure that the
applicant was released or otherwise remedy the violation of his right
to liberty and security.
The
Court upholds the findings made in the above-mentioned cases (see
paragraph 23 above) and finds that, in the absence of clear legal
provisions establishing the procedure for ordering and extending
detention with a view to extradition and setting time-limits for such
detention, the deprivation of liberty to which the applicant was
subjected was not circumscribed by adequate safeguards against
arbitrariness. In particular, the Court observes that the detention
order of 14 October 2003 did not set any time-limit for the
applicant’s detention. Under the provisions governing the
general terms of detention (Article 108 of the CCP), the time-limit
for detention pending investigation was fixed at two months. A judge
could extend that period to up to six months. Further extensions
could only be granted by a judge if the person had been charged with
serious or particularly serious criminal offences. However, upon the
expiry of the maximum initial two-month detention period (Article 109
§ 1 of the CCP), no extension was granted by a court in the
present case. The applicant was in detention pending extradition for
more than one year, at least until 29 July 2004, when the
extradition order against him was finalised by the Supreme Court.
During that period, no requests were lodged for his detention to be
extended. Thus, the national system has failed to protect the
applicant from arbitrary detention, and his detention cannot be
considered “lawful” for the purposes of Article 5 § 1
of the Convention. In these circumstances, the Court does not need to
separately consider whether the extradition proceedings were
conducted with due diligence.
In
view of the above, the Court finds that the applicant’s
detention during the period in question was unlawful and arbitrary,
in violation of Article 5 § 1. There has therefore
been a violation of Article 5 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined another complaint submitted by the applicant under
Article 3 of the Convention alleging that his extradition to
Kyrgyzstan would subjected him to a real risk of ill-treatment.
However, having regard to all the material in its possession, it
finds that this complaint does not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
It
follows that this part of application is manifestly ill-founded and
must be rejected pursuant to Article 35 §§ 3
and 4 of the Convention.
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 57,600 euros (EUR) in respect of non pecuniary
damage.
The Government submitted that
the amount claimed was excessive and that
finding a violation of the Convention would be adequate just
satisfaction in the applicant’s case.
The Court, making an assessment
on an equitable basis, awards EUR 10,000 to the applicant in
respect of non-pecuniary damage plus any tax that may be chargeable
on that amount.
B. Costs and expenses
The applicant did not submit a
claim under this heading.
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
Declares the applicant’s complaint under
Article 5 § 1 admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 10,000 (ten thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 29
July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Søren Nielsen Christos Rozakis
Registrar President
