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MOKALLAL v. UKRAINE - 19246/10 [2011] ECHR 1907 (10 November 2011)
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[2011] ECHR 1907
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FIFTH
SECTION
CASE OF MOKALLAL v. UKRAINE
(Application
no. 19246/10)
JUDGMENT
STRASBOURG
10
November 2011
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 Mokallal v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Ann
Power-Forde,
Ganna
Yudkivska,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19246/10)
against Ukraine lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Iranian
national, Mr Far Abolfazl Abbas Mokallal (“the applicant”),
on 8 April 2010.
The
applicant was represented by Mr Y. Sivologa, a lawyer practising in
Odessa. The Ukrainian Government (“the Government”)
were represented by their Agent, Mrs V. Lutkovska, from the Ministry
of Justice.
3. The
applicant alleged, in particular, that his detention with a view to
extradition was unlawful.
On
8 April 2010 the applicant requested the European Court of Human
Rights to prohibit the Ukrainian Government from extraditing him to
Iran, alleging that there was a risk of political persecution. On 12
April 2010 the President of the Chamber indicated to the Ukrainian
Government, under Rule 39 of the Rules of Court, that the applicant
should not be removed to Iran unless and until the Court had had the
opportunity to consider the case further. The application of Rule 39
was discontinued on 27 September 2010 following information that the
extradition proceedings against the applicant had been terminated and
that he had been released.
On
27 September 2010 the President of the Fifth Section
decided to give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1971 and lives in Odessa.
The
applicant has been living and working in Ukraine since 1995. He has a
partner and five minor children. All his family are Ukrainian
nationals.
In
2007, following media coverage of the applicant’s successful
business, he was approached by representatives of the Iranian
Embassy. They invited him to meet the President of Iran to receive an
award for his business success. The applicant refused, as he
disagreed with the domestic and foreign policies of the President.
In
2009 the applicant financially supported one of the opposition
candidates in the Presidential elections. He submits that supporters
of opposition candidates were prosecuted in Iran.
On
an unknown date criminal proceedings for embezzlement were instituted
against the applicant in Iran.
On
31 June 2009 the applicant was placed on the list of wanted persons
by the Tehran Prosecutors’ Office. An international arrest
warrant was issued.
On
11 February 2010 the applicant applied for refugee status in Ukraine.
On
2 March 2010 the UNHCR Regional Representation for Ukraine, Belarus
and Moldova wrote a letter to the General Prosecutor’s Office
of Ukraine (“the GPO”). They noted that the applicant was
officially an asylum-seeker in Ukraine and therefore his status
should be taken into account if the GPO examined any request for his
extradition to Iran.
On
3 April 2010 the applicant was arrested by the Tairovskiy Police
Department with a view to his extradition.
On
6 April 2010 Odessa Kyivskiy District Court remanded the applicant in
custody pending the extradition procedure.
On
14 April 2010 the Odessa Regional Court of Appeal upheld the decision
of the first-instance court.
On
19 April 2010 the GPO replied to the UNHCR letter of 2 March 2010,
assuring them that the applicant would not be extradited until his
application for refugee status had been examined on the merits.
On
17 June 2010 amendments to the Code of Criminal Procedure entered
into force. They supplemented the Code with a new chapter, which set
forth the extradition procedure to be followed and established a
special procedure for detention with a view to extradition. They
provided, in particular, that a person could be temporarily detained
for forty days or another term envisaged in international treaties
while awaiting formal request for extradition. Once a formal
extradition request has been received, the court may order the
detention of the person for a maximum of eighteen months with the
possibility of further detention (see paragraph 28 below).
On
22 June 2010 the Odessa Malinovskiy District Prosecutor requested the
Odessa Malinovskiy District Court to extend the extradition detention
of the applicant.
On
23 June 2010 the applicant requested the Odessa Malinovskiy District
Prosecutor to order his release due to lack of grounds to keep him in
detention any longer.
On
29 June 2010 Odessa Malinovskiy District Court extended the
applicant’s detention until a decision had been taken on his
extradition.
On
12 July 2010 the GPO received a note from the Iranian Embassy,
informing that the applicant’s detention was no longer
required, due to a friendly settlement which had been reached between
the applicant and one of the aggrieved parties in the case.
The
next day the GPO ordered the Odessa Regional Prosecutor’s
Office to take the necessary measures to have the applicant released
from detention.
On
14 July 2010 the Deputy Prosecutor of the Odessa Region ordered the
termination of the applicant’s detention. The applicant was
released the same day and the GPO terminated the examination of the
request for the applicant’s extradition to Iran.
On
16 July 2010 the Odessa Regional Court of Appeal discontinued
examination of the applicant’s appeal against the decision of
29 June 2010, given that the applicant had been released.
On
9 December 2010 the State Committee for Nationalities and Migration
rejected the applicant’s request for granting him the refugee
status. The applicant was notified about this decision on 1 July
2011. He challenged it before the Odessa Regional Administrative
Court on 10 July 2011.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
domestic law and practice concerning detention with a view to
extradition as it stood prior to 17 June 2010 is summarised in the
judgment Soldatenko v. Ukraine (2440/07, §§ 21-29
and 31, 23 October 2008),
A. Code of Criminal Procedure
The
Code of Criminal Procedure (Amendment) Act, which came into force on
17 June 2010, introduced a new chapter into the Code of Criminal
Procedure regulating proceedings for extradition to and from Ukraine.
The Act contained no transitional provisions. Relevant articles of
this new chapter provide, among other things, as follows:
Article 450
Definitions
“... Extradition detention - taking a person into
custody to ensure his extradition.
Provisional detention - taking a person, who has been
detained on suspicion of committing crime outside Ukraine, into
custody for a period determined by this Code or the international
treaty of Ukraine until receipt of extradition request ...”
Article 461
Features of taking into detention of a
person who has committed a crime outside Ukraine
“Taking into detention on the territory of Ukraine
of a person who is wanted by a foreign State in connection with the
commission of a crime, shall be carried out by a body of inquiry.
The body of inquiry that carries out the detention shall
immediately inform the prosecutor who supervises the observance of
laws that it has been done. The notification of the prosecutor,
accompanied by the record of the arrest, shall contain detailed
information on the reasons and motives for the taking into detention.
Upon receipt of notification, the prosecutor shall check
the legality of the detention of the person who is wanted by the
competent authorities of foreign States, and immediately inform the
regional prosecutor.
Within seventy-two hours of the arrest, the regional
prosecutor’s office shall inform the central authority, which
shall inform the competent authority of the foreign State within
three days.
Every case of detention of a foreign national who has
committed crimes outside Ukraine shall also be reported by the
regional prosecutor’s office to the Ministry of Foreign Affairs
of Ukraine.
The person detained shall be released immediately if:
1) Within seventy-two hours of the arrest he
or she has not been served with a substantiated decision of the court
on application of extradition detention or provisional detention;
2) it has been established that there are
circumstances applying to the case under which extradition may not be
carried out.
The procedure of detention of such persons and
examination of complaints about their detention shall be performed in
accordance with Article 106 of the Code, taking into account the
peculiarities established by this Chapter.”
Article 462
Provisional arrest
“A detained person who has committed a crime
outside Ukraine shall be subject to provisional detention for forty
days, or another period of time set out in the relevant international
treaty of Ukraine, until an extradition request has been received.
If the maximum period of provisional detention envisaged
by paragraph 1 of this Article has expired, and no extradition
request has been received in respect of this person, the person shall
be released from custody immediately.
The body of inquiry which arrested the person shall
lodge, with the prosecutor’s approval, with the court local to
the place of detention a warrant for provisional detention. The
prosecutor shall be also entitled to lodge such a warrant.
The warrant shall be accompanied by:
1) the record of the arrest of the person;
2) documents containing information about the
crime or crimes committed by the person on the territory of a foreign
State and the preventive measures used in respect of that person by
the competent authority of the foreign State;
3) the detained person’s identity
documents.
The warrant shall be examined within seventy-two hours
of the detention of the person.
When examining the warrant, a judge shall establish the
identity of the detained person, shall invite him or her to make a
statement, shall check the presence of the documents envisaged by
subparagraph 2 of paragraph 3 of this Article, shall hear the opinion
of the prosecutor and of other participants and shall make a ruling
on:
1) application of provisional detention;
2) refusal to apply provisional detention if
there are no grounds for its application.
The judge’s ruling can be appealed against to the
court of appeal by the prosecutor, the person placed under
provisional detention, or his or her counsel or legal representative,
within three days of the date of the ruling. The lodging of an appeal
against the judge’s ruling shall not suspend its entry into
force or its execution. The ruling of the court of appeal shall not
be subject to appeal, nor may the prosecutor appeal on points of law.
The release of a person from provisional detention due
to the belated arrival of an extradition request at the central
authority shall not prevent the imposition of extradition detention
if such a request is received later.
If an extradition request is received prior to the
expiry of the period of provisional detention fixed by the court, the
judge’s ruling on the application of provisional detention
becomes void from the date of the court ruling on the application of
extradition detention to the person concerned.”
Article 463
Extradition arrest
“Upon receipt of an extradition request from the
competent authority of a foreign State, the prosecutor, on the
instruction (at the request) of the central authority, shall deposit
a warrant for the extradition arrest of the person with the court at
the place of the person’s detention.
The warrant shall be submitted for examination by the
court, with the following attachments:
1) a copy of the extradition request from the
competent authority of the foreign State, certified by the central
authority;
2) documents confirming the person’s
nationality;
3) available materials from the extradition
inquiry.
Materials submitted to the court shall be translated
into the official language, or another language as provided by an
international treaty of Ukraine.
On receipt of the warrant, the judge shall establish the
identity of the person concerned, shall offer him or her the
opportunity to make a statement, shall check the extradition request
and the available materials from the extradition inquiry, shall hear
the opinion of the prosecutor and of other participants, and shall
make a ruling which will:
1) order extradition detention;
2) refuse to apply extradition detention if
there are no grounds for its application.
When examining the warrant, the judge does not examine
the issue of guilt and does not review the lawfulness of procedural
decisions taken by the competent authorities of the foreign State in
the proceedings against the person whose extradition is requested.
The judge’s ruling can be appealed against to the
court of appeal by the prosecutor, the person placed under
extradition detention, or his or her counsel or legal representative,
within three days of the date on which the ruling was made. The
lodging of an appeal against the judge’s ruling shall not
suspend its entry into force or its execution. A ruling of the court
of appeal shall not be subject to appeal, nor may the prosecutor
appeal on points of law.
Extradition detention shall be applied until the
decision on the extradition of the person concerned and his actual
surrender (extradition), but shall not last more than eighteen
months.
Within this period, and not less than once every two
months , the judge at the place of the person’s detention shall
examine, at the instigation of the prosecutor, what grounds there may
be for further detention of the person or for his or her release.
If the person placed under extradition detention, or his
or her counsel or legal representative, makes a complaint, the judge
at the place of the person’s detention shall check, but not
more often than once a month, what grounds there may be for the
person’s release.
If the maximum period of extradition detention provided
in paragraph 7 of this article has expired, and the issue of the
person’s extradition and actual surrender has not been resolved
by the central authority, the person shall be released immediately.
The fact that the person has been released from
extradition detention by the court does not preclude a new order for
the detention of the person, for the purpose of actual surrendering
that person to a foreign State in execution of the decision on
extradition, unless otherwise stipulated by an international treaty
of Ukraine.
If person has been released from custody by the court,
the regional prosecutor or his deputy, in agreement with the
competent central authority, makes an order to apply other necessary
measures to prevent the person from absconding and to ensure he is
surrendered later.
Such measures shall be sufficient to ensure that the
decision to extradite can be put into effect, and can, in particular,
include bail, restrictions on the person’s movement and control
over his or her movements. Application of bail and of restrictions on
the person’s movements shall be carried out in accordance with
the procedure envisaged by Articles 98-1, 151 and 154-1 of this Code,
taking into account the special aspects of this Chapter.
The regional prosecutor or his deputy shall notify the
person concerned and his or her counsel or legal representative of
the order issued in respect of the person.
The regional prosecutor or his deputy may entrust the
body of inquiry with the execution of the order.”
Article 464
Termination of provisional detention
or extradition detention
“A Provisional detention or extradition detention
shall be terminated if:
1) the central authority, within the
time-limits provided for by an international treaty of Ukraine, has
not received a request for the person’s extradition;
2) an extradition inquiry reveals
circumstances which preclude the person’s extradition;
3) The competent authority of a foreign State
has refused to seek the person’s extradition;
4) the central authority decides to refuse
the person’s extradition.
The person’s release shall be carried out by the
regional prosecutor or his deputy on the instruction at the (request)
of the central authority and in the circumstances provided for in
paragraph 2 of this Article, in agreement with the relevant central
authority. A copy of the release decision shall be sent to the head
of the pre-trial detention institution and to the court which decided
on the application of provisional detention or extradition
detention.”
Article 466
Refusal of extradition
“... A person who has been granted refugee status
may not be extradited to a foreign state where his health, life, or
freedom is endangered for reasons of race, faith (religion),
ethnicity, citizenship (nationality), membership of a particular
social group or political opinion, unless otherwise provided by an
international treaty to which Ukraine is a party.
In the event of refusal of extradition on grounds of
nationality, refugee status or other grounds that do not exclude
proceedings in the case, at the request of the competent authority of
a foreign state the General Prosecutor’s Office of Ukraine
instructs a pre-trial investigation body to carry out an
investigation of the criminal case against that person in accordance
with the procedure prescribed by this Code.”
B. Refugees Act of 21 June 2001
Section
3 of the Act reads:
Section 3
Prohibition of expulsion or forced
return of a refugee to the country from which he came and where his
life or freedom is endangered
“No
refugee may be expelled or forcibly returned to a country where his
or her life or freedom is threatened for reasons of race, religion,
ethnicity, nationality, membership of a particular social group or
political opinion.
No refugee
may be expelled or forcibly returned to a country where he or she may
suffer torture and other severe, inhuman or degrading treatment or
punishment, or to a country from where the refugee may be expelled or
forcibly returned to a country where his or her life or freedom is
threatened for reasons of race, religion, ethnicity, nationality,
membership of a particular social group or political opinion.
This Article shall not apply to refugees convicted of a
serious crime in Ukraine.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that his detention was not
lawful, because there was no legislation governing detention with a
view to extradition, and because the law should not have permitted
his extradition while his application for refugee status was pending.
He relied on Article 5 § 1 (f) of the Convention, which reads 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. Admissibility
The
Court notes that this complaint 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.
B. Merits
1. The parties’ submissions
In
his application of 3 June 2010 the applicant
maintained that his detention was unlawful, given that it had no
basis in the domestic law. Furthermore, he considered his detention
was contrary to Article 5, given that he had applied for refugee
status and therefore could not be extradited prior to determination
of his application for that status. He made no further submissions
thereafter.
The
Government submitted that on 17 June 2010 the Code of Criminal
Procedure had been amended, to introduce not only a specific
procedure of examination of extradition requests, but also a
procedure for the taking into, and subsequent keeping in, detention
of persons whose extradition had been requested. They maintained that
the above law was clear, precise and foreseeable, and prevented a
risk of arbitrary behaviour on the part of State authorities. They
further contended that the applicant’s detention had been
justified by the pending proceedings on his extradition. The
examination of the request, in their opinion, had been conducted with
due diligence and without delays.
The
Government also submitted that during his detention the applicant had
not had refugee status, as no decision had been taken on his request
for that status. The lodging of such a request, however, could not be
a reason to terminate the examination and adoption of the decision on
extradition. If the applicant was granted refugee status, the
authorities would have to stop his extradition detention and refuse
request for his extradition. The Government maintained that the
actual extradition of a person would not be carried out in such cases
until a final decision had been taken on a request for refugee
status.
2. The Court’s assessment
(a) General
principles
Paragraph 1 of Article 5 of the Convention limits the
circumstances in which individuals may lawfully be deprived of their
liberty. Seeing that these circumstances constitute exceptions to a
most basic guarantee of individual freedom, only a narrow
interpretation is consistent with the aim of this provision (see
Čonka v. Belgium, no. 51564/99, § 42 in
limine, ECHR 2002-I, and Shamayev and Others v. Georgia and
Russia, no. 36378/02, § 396,
ECHR 2005-III). The Court notes that the applicant was detained with
a view to extradition from Ukraine to Iran. Article 5 § 1 (f)
of the Convention is thus applicable in the instant case. This
provision does not require the detention of a person against whom
action is being taken with a view to extradition to be reasonably
considered necessary, for example to prevent his committing an
offence or absconding. In this connection, Article 5 § 1 (f)
provides a different level of protection from Article 5 § 1 (c):
all that is required under sub-paragraph (f) is that “action is
being taken with a view to deportation or extradition” (see
Čonka, cited above, § 38, and Chahal v. the
United Kingdom, judgment of 15 November
1996, Reports of Judgments and Decisions 1996-V, §
112). However, any deprivation of liberty under
Article 5
§ 1
(f)
will be justified only for as long as extradition proceedings are in
progress. If such proceedings are not prosecuted with due diligence,
the detention will cease to be permissible under Article 5
§ 1
(f)
(ibid., p. 1863, § 113).
The
Court further reiterates that it falls to it to examine whether the
applicant’s detention was “lawful” for the purposes
of Article 5 § 1 (f), with particular reference to the
safeguards provided by the national system. Where the “lawfulness”
of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention
refers essentially to national law and lays down the obligation to
conform to the substantive and procedural rules of national law, but
it requires in addition that any deprivation of liberty should be in
keeping with the purpose of Article 5, which is to protect the
individual from arbitrariness (see Amuur v. France, judgment
of 25 June 1996, Reports of Judgments and Decisions 1996-III,
§ 50). Thus,
the notion
underlying the term in question is one of fair and proper procedure,
namely that any measure depriving a person of his liberty should
issue from, and be executed by, an appropriate authority and should
not be arbitrary (see C.
v. Germany,
no. 0893/84, Commission decision of 2 December 1985). The
words “in accordance with a procedure prescribed by law”
do not merely refer back to domestic law; they also relate to the
quality of this law, requiring it to be compatible with the rule of
law, a concept inherent in all Articles of the Convention. Quality in
this sense implies that where a national law authorises deprivation
of liberty, it must be sufficiently accessible and precise, in order
to avoid all risk of arbitrariness (see Dougoz v. Greece, no.
40907/98, § 55, ECHR 2001-II, citing Amuur v. France,
cited above, pp. 850-51, § 50).
The
Court observes that as the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 refer back to national law, it is in the first place for the
national authorities, notably the courts, to interpret and apply
domestic law. However, since under Article 5 § 1
failure to comply with the domestic law entails a breach of the
Convention, it follows that the Court can and should exercise a
certain power to review whether this law has been complied with (see
Benham v. the United Kingdom, 10 June 1996, §§
40-41, Reports of Judgments and Decisions 1996 III, and
Shukhardin v. Russia, no. 65734/01, § 74, 28 June 2007).
(b) Application of the general principles
in the present case
The
Court considers that the applicant’s detention can be divided
into four distinctive periods, and will examine the lawfulness of his
detention during those periods consecutively.
(i) Lawfulness of the applicant’s
detention between 3 April and 17 June 2010
The
Court has previously found a violation of Article 5 § 1 of the
Convention in cases concerning the detention pending extradition
proceedings within the legal framework that existed prior to 17 June
2010 (see Soldatenko v. Ukraine, no. 2440/07, §§
109-114, 23 October 2008, and Svetlorusov v. Ukraine, no.
2929/05, §§ 47-49, 12 March 2009). These findings were
primarily based on the lack of a sufficient legal basis for such
detention. Having examined all the materials submitted to it, the
Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a conclusion that in the
present case there had been a sufficient legal basis for the
applicants’ detention pending extradition proceedings during
the period in question. There has accordingly been a violation of
Article 5 § 1 of the Convention.
(ii) Lawfulness of the applicant’s
detention between 17 and 29 June 2010
The
Court notes that on 17 June 2010 the Code of Criminal Procedure was
amended to provide a legal basis for extradition proceedings;
however, the parties did not comment on its relevance to the present
part of the application and these legislative changes did not affect
the applicant during the period in question, as he continued to be
detained under the court decision given on 6 April 2010, that is,
prior to the Amendment Act of 17 June 2010. In the absence of
any transitional arrangements in the above Act and also in the
absence of a legal basis for detention pending extradition
proceedings at the time that detention was ordered by the domestic
court, the Court considers that the applicant was deprived of his
liberty in violation of Article 5 § 1 of the Convention also
during this period.
(iii) Lawfulness of the applicant’s
detention between 29 June and 12 July 2010
On
29 June 2010 the domestic court reviewed the applicant’s
detention and authorised his further detention pending the
examination of the request for his extradition to Iran under the new
procedure established by the Amendment Act of 17 June 2010. The new
legislation provides a regulatory framework for extradition
proceeding in which the deprivation of liberty with a view to
extradition is envisaged and the persons detained therefor are
entitled to judicial review of the lawfulness of their arrest and
detention. The applicant makes no specific complaints about
particular matters arising in this context, but it cannot be said
that the extradition proceedings from 29 June to 12 July lacked any
legal basis.
As
to the applicant’s argument that his detention served no
purpose, as he could not be extradited prior to examination of his
application for refugee status, the Court notes that it has
consistently held that the existence of circumstances that under
domestic law exclude extradition of a person render any detention for
the purpose of extradition unlawful and arbitrary. The Ukrainian
legislation establishes a total ban on extradition or expulsion of
Ukrainian nationals. In addition to this, under the Refugee Act
refugees may not be expelled or forcibly returned to particular
countries (see paragraph 29 above). The Court has previously found a
violation of Article 5 § 1 of the
Convention when the authorities applied detention for the purpose of
extradition to a Ukrainian national (see Garkavyy v. Ukraine,
no. 25978/07, §§ 70 and 75, 18 February 2010) and to a
refugee (see Dubovik v. Ukraine, nos. 33210/07 and 41866/08,
§§ 61 and 62, 15 October 2009). In the former case,
however, extradition had been excluded from the outset due to the
applicant’s nationality, while in the latter it became
arbitrary from the moment the decision on granting the applicant
refugee status became final and binding.
In
contrast with the cases mentioned, in the instant case no decision on
granting the applicant refugee status had been taken either prior to
or during his detention. The ongoing examination of the applicant’s
request for refugee status did not exclude the possibility that he
might later be extradited. The Court notes that the examination of
any risks and objections linked to the person’s possible
removal from the territory of the State is intrinsic to actions
“taken with a view to deportation or extradition”. Even
if such an examination establishes that such risks and objections are
well founded and capable of preventing the person’s
removal, such a possible future outcome cannot in itself
retroactively affect the lawfulness of the detention pending
examination of a request for extradition. The Court reiterates that
all that is required under 5 § 1 (f) is that “action is
being taken with a view to deportation or extradition” (see
Čonka, cited above, § 38). Given that throughout
this period of detention it was the authorities’ intention to
extradite the applicant, and that there was no legal or factual
impediment to ultimate extradition, the detention cannot be
considered unlawful or arbitrary within the meaning of Article 5 §
1. It follows that there was no violation of the above provision
during the period in question.
(iv) Lawfulness of the applicant’s
detention between 12 and 14 July 2010
The Court notes that on 12 July 2010 the Iranian
Embassy in Kyiv informed the General Prosecutor’s Office that
the applicant’s extradition was no longer required. It was not
until 14 July 2010 however that the Deputy Prosecutor of the Odessa
Region authorised the applicant’s release. The Court reiterates
that some delay in implementing a decision to release a detainee is
understandable, and often inevitable in view of practical
considerations relating to the running of the courts and the
observance of particular formalities. However, the national
authorities must attempt to keep this to a minimum (see Quinn v.
France, judgment of 22 March 1995, Series A no. 311, p. 17, §
42; Giulia Manzoni v. Italy, judgment of 1 July 1997, Reports
1997-IV, p. 1191, § 25 in fine; K.-F. v. Germany,
judgment of 27 November 1997, Reports 1997-VII, p.
2675, § 71; and Mancini v. Italy, no. 44955/98, §
24, ECHR 2001-IX). Administrative formalities connected with release
cannot justify a delay of more than a few hours (see Nikolov v.
Bulgaria, no. 38884/97, § 82, 30 January 2003). It is
for the Contracting States to organise their legal system in such a
way that their law-enforcement authorities can meet the obligation to
avoid unjustified deprivation of liberty. In the present case it took
the domestic authorities two days to arrange for the applicant’s
release after they had received notification that the applicant’s
extradition was no longer required. Having regard to the prominent
place which the right to liberty holds in a democratic society, the
respondent State should have deployed all modern means of
communication of information to keep to a minimum the delay in
implementing the decision to release the applicant, as required by
the relevant case-law (see, mutatis mutandis, Eminbeyli v.
Russia, no. 42443/02, § 49, 26 February 2009). The Court is
not satisfied that the Ukraine officials complied with that
requirement in the present case. It follows that there has been a
violation of Article 5 § 1 in respect of this period of his
detention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained that if extradited
he would risk a violation of his rights guaranteed by Articles 2, 3,
6 and 8 of the Convention and Article 1 of Protocol No. 6.
The
Court notes that the extradition proceedings were discontinued
without any decision to extradite having been taken by the Ukrainian
GPO. Accordingly, given that these complaints of the applicant
concerned Ukraine’s responsibility under the Convention for
events which might happen in Iran if he were extradited or otherwise
removed and that there is now no risk of removal, the applicant
cannot claim to be a victim of a violation of his above Convention
rights as required by Article 34 of the Convention (see, mutatis
mutandis, Dubovik v. Ukraine, nos. 33210/07 and 41866/08,
§§ 40-41, 15 October 2009). It follows that this complaint
is incompatible ratione personae with the provisions of the
Convention within the meaning of Article 35 § 3 (a) and must be
rejected in accordance with Article 35 § 4.
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.”
The
applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call
to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning unlawfulness
of the applicant’s detention admissible and the remainder of
the application inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant’s
detention between 3 April and 29 June 2010 and 12 and 14 July 2010;
Holds that there has been no violation of
Article 5 § 1 of the Convention in respect of the applicant’s
detention between 29 June and 12 July 2010.
Done in English, and notified in writing on 10 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann Registrar President
