THIRD SECTION

CASE OF YAKOVENKO v. RUSSIA

(Application no. 48528/09)

JUDGMENT

STRASBOURG

25 July 2017

This judgment is final but it may be subject to editorial revision.

In the case of Yakovenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Luis López Guerra, President,
	Dmitry Dedov,
	Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 July 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 48528/09) 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 national of Uzbekistan, Mr Sergey Valeryevich Yakovenko (“the applicant”), on 10 September 2009.
2.  The applicant was represented by Mr I. Fedotov and Ms L. Stakhiyeva, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M.Galperin.
3.  On 3 December 2014 the complaints concerning the applicant’s detention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1961.
5.  On 10 October 2003 a deputy prosecutor in Tashkent, Uzbekistan, added the applicant’s name to the list of fugitives from justice and issued an arrest warrant on suspicion of human trafficking with the purpose of sexual exploitation.
6.  On 26 February 2009 the applicant was arrested in Russia.
7.  On 28 February 2009 the Pechorskiy District Court in the Pskov Region ordered the applicant’s detention pending extradition, referring to Articles 108 and 466 of the Code of Criminal Procedure but without setting a time-limit.
8.  On 16 March 2009 the Russian Prosecutor General’s office received a request for the applicant’s extradition from his counterpart in Uzbekistan.
9.  On 15 May 2009 the deputy Russian Prosecutor General ordered the applicant’s extradition to Uzbekistan.
10.  The applicant challenged the extradition order before the Pskov Regional Court. On 26 June 2009 the Regional Court found that the extradition order was lawful. On 17 August 2009 the Supreme Court of the Russian Federation upheld the decision on appeal.
11.  On 17 October 2009 the applicant was extradited to Uzbekistan.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
12.  For a summary of provisions governing detention pending extradition and judicial review of such detention, see Zokhidov v. Russia (no. 67286/10, §§ 84-101, 5 February 2013).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
13.  The applicant complained under Article 5 § 1 (f) of the Convention that his detention had been unlawful as it had exceeded the two-month time‑limit set out in Article 109 of the Code of Criminal Procedure. The relevant parts of Article 5 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.”
14.  The Government submitted that the applicant’s detention had been lawful and compatible with the requirements of Article 5 § 1 (f) of the Convention.
Section 3.01	A.  Admissibility
15.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
16.  The Court has found in many cases against Russia that the domestic legal provisions governing detention pending extradition fell short of the “quality of law” standard required under the Convention and did not offer the adequate protection from arbitrary detention (see Akram Karimov v. Russia, no. 62892/12, §§ 148-53, 28 May 2014; Zokhidov, cited above, §§ 155-63; Ismoilov and Others v. Russia, no. 2947/06, §§ 138-40, 24 April 2008; Nasrulloyev v. Russia, no. 656/06, §§ 72-78, 11 October 2007). In particular, Article 466 of the Code of Criminal Procedure, to which the District Court referred in its decision of 28 February 2009, did not spell out the procedure to be followed when ordering or extending the detention of a person whose extradition was sought or established a time-limit for detention pending extradition. In so far as the decision of 28 February 2009 also referred to Article 109 of the Code, the Court notes that Article 109 limited the initial detention period to two months. That period expired on 28 April 2009 but no extension had been sought by the prosecutor or approved by a Russian court in breach of that provision. As it happened, the applicant stayed more than seven months in custody without any limit having been imposed on its duration. It follows that the applicant’s detention cannot be considered “lawful” for the purposes of Article 5 of the Convention. In these circumstances, the Court does not need to consider separately whether the extradition proceedings were conducted with special diligence (see Ismoilov and Others, cited above, § 140).
17.  There has accordingly been a violation of Article 5 § 1 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
18.  The applicant complains under Article 5 § 4 of the Convention that there was no effective procedure by which he could challenge his detention. Article 5 § 4 reads as follows:
“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.”
19.  The Government pointed out that the applicant had not complained about the alleged unlawfulness of his detention in his statement of appeal. They further submitted that that an automatic periodic review was available under Articles 108 and 109 of the Code of Criminal Procedure and that a prosecutor was entitled, pursuant to Article 110, to reconsider an issue of custodial detention at the applicant’s request or of his own motion. Furthermore, if the applicant had considered that the prosecutor had been under an obligation to release him proprio motu, he could have challenged his failure to act before a court under Article 125 of the Code of Criminal Procedure.
Section 4.01	A.  Admissibility
20.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 4.02	B.  Merits
21.  The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Ismoilov and Others, cited above, § 140, with further references).
22.  The Court has already found that Articles 108, 109 and 110 of the Code of Criminal Procedure, to which the Government referred, did not entitle a detainee to initiate proceedings by which the lawfulness of his detention would be examined by a court and his release could be ordered (see Nasrulloyev, cited above, § 88; Ismoilov and Others, cited above, § 151; Elmuratov v. Russia, no. 66317/09, § 115, 3 March 2011). It also emphasised that Article 110 did not provide for a clear mechanism of applying for cancellation or varying the preventive measure in the context of detention pending extradition (see Kadirzhanov and Mamashev v. Russia, nos. 42351/13 and 47823/13, § 131-32, 17 July 2014). Moreover, Article 125 conferred standing to bring complaints solely on “parties to criminal proceedings”, whereas the applicant was not party to any criminal proceedings against him in Russia. The Court finally notes that the present case, in which there was no periodic judicial review of the applicant’s detention, must be distinguished from those in which such review was available at reasonable intervals (see, for example, Nabid Abdullayev v. Russia, no. 8474/14, §§ 89-93, 15 October 2015).
23.  In sum, the Government were unable to show that the applicant had at his disposal any procedure for judicial review of his detention. There has therefore been a violation of Article 5 § 4 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
24.  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.”
25.  The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage. The Government considered the claim excessive.
26.  The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
27.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  Holds that there has been a violation of Article 5 § 4 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 7,500 (seven thousand five hundred 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President