European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF BAZ v. UKRAINE

(Application no. 40962/13)

 

 

 

 

JUDGMENT

STRASBOURG

5 November 2020

 

 

 

 

 

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

 

In the case of Baz v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Mārtiņš Mits, President,
          Latif Hüseynov,
          Mattias Guyomar, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to:

the application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mekhmet Takhır Dıno Baz (“the applicant”), on 15 June 2013;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaint under Article 5 § 1 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

the decision of the Turkish Government not to exercise their right to intervene in the proceedings under Article 36 § 1 of the Convention;

Having deliberated in private on 6 October 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the applicant’s complaint that his detention in Ukraine in the context of the examination of the Turkish authorities’ request for his extradition had been in breach of Article 5 § 1 (f) of the Convention.

THE FACTS

2.  The applicant was born in 1976 and lives in Mykolayiv. The applicant, who had been granted legal aid, was represented by Mr O. Ovchynnykov, a lawyer practising in Strasbourg.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

A.     The applicant’s arrival in Ukraine and the proceedings concerning asylum and subsidiary protection status

5.  In September 1998 the applicant left Turkey for an unspecified country. In 2004 he arrived in Ukraine and on 23 March 2011 he was granted refugee status.

6.  On 18 October 2012 the State Migration Service revoked his refugee status on the grounds that he had provided false information. The applicant had stated that he had been persecuted in Turkey on political grounds, concealing the fact that he had been wanted by the law-enforcement authorities on suspicion of a criminal offence.

7.  The Ukrainian courts at three levels of jurisdiction rejected the applicant’s claim challenging the revocation decision. The final decision was handed down by the High Administrative Court on 3 April 2013.

8.  Meanwhile, on 14 March 2013 the applicant applied to the immigration authorities for subsidiary protection.

9.  On 13 August 2013 the Kharkiv regional department of the State Migration Service rejected his application as inadmissible on the grounds that his refugee status had been revoked.

10.  On 27 February 2014 the Odessa Circuit Administrative Court quashed that decision following an administrative claim by the applicant and directed the immigration authorities to examine his application for subsidiary protection on the merits.

11.  The migration service appealed. There is no information in the case file on subsequent developments.

B.     Criminal proceedings against the applicant in Ukraine

12.  On 25 September 2012 the applicant was detained on suspicion of using documents he knew to be forged (no further details are available in the case file). On an unspecified date he was released, subject to an undertaking not to abscond.

13.  On 14 March 2013 the Kharkiv Leninsky District Court found the applicant guilty as charged and sentenced him to two months’ imprisonment.

14.  The applicant appealed. There is no information in the case file on the outcome of those proceedings.

C.     Extradition proceedings and the applicant’s detention with a view to extradition

15.  On 20 June 2011 the Istanbul 13th Higher Criminal Court (“the Istanbul Court”) issued a warrant for the applicant’s arrest on suspicion of participation in terrorist and separatist activities on 5 August 1998.

16.  On 3 October 2012 the Istanbul Court sent a request to “the authorised judicial authorities of Ukraine”, seeking the applicant’s extradition to Turkey in connection with the criminal proceedings against him. It was specified in the request that the criminal charge in question was to become time-barred on 15 August 2013. The Turkish court assured the Ukrainian authorities that the applicant’s rights and freedoms under the Convention would be respected.

17.  On 14 November 2012 the applicant was detained by the State Security Service of Ukraine with a view to his extradition.

18.  On 15 November 2012 the Mykolaiv regional department of the State Migration Service informed the State Security Service that the applicant had not applied for Ukrainian nationality (Ukrainian law bars the extradition of Ukrainian nationals).

19.  On 16 November 2012 the Mykolaiv Tsentralny District Court, following an application from the prosecution authorities, placed the applicant in detention pending his extradition.

20.  On 17 June 2013 the Istanbul Court issued another warrant for the applicant’s arrest on the same criminal charge as before.

21.  The applicant was transferred from Mykolaiv to Kharkiv in connection with the criminal proceedings against him in Ukraine (see paragraphs 12 and 13 above), making the Kharkiv Zhovtnevy District Court (“the Zhovtnevy Court”) the competent court in matters of his detention.

22.  On 17 July 2013 the Zhovtnevy Court examined the matter of the applicant’s detention and held that his continued detention was justified. The court referred to the two arrest warrants and the extradition request issued by the Istanbul Court. The Kharkiv regional prosecutor’s office had received the documents in question from the Ministry of Justice of Ukraine. Furthermore, the prosecution authorities had carried out an extradition inquiry (екстрадиційна перевірка) and had concluded that there were no impediments to the applicant’s extradition. The court also noted the applicant’s conviction by the judgment of 14 March 2013, but specified that it had not yet become final.

23.  On 30 August 2013 the Zhovtnevy Court released the applicant. It noted that the limitation period in respect of the criminal offences of which the applicant was accused had expired on 15 August 2013. The court referred in this connection to Article 10 of the European Convention on Extradition, pursuant to which extradition could not be granted in such circumstances (see paragraph 29 below).

24.  On 23 September 2013 the Ministry of Justice of Ukraine rejected the extradition request of 3 October 2012.

RELEVANT LEGAL FRAMEWORK

I. Relevant domestic law

A.     1960 Code of Criminal Procedure (repealed and replaced by the 2012 Code of Criminal Procedure with effect from 19 November 2012)

25.  The relevant provisions of the Code are quoted in the Court’s judgment in Molotchko v. Ukraine (no. 12275/10, § 91, 26 April 2012).

B.     2012 Code of Criminal Procedure

26.  Article 584 of the 2012 Code of Criminal Procedure provides that a request to detain a person pending extradition must be submitted by a prosecutor after receipt of an extradition request from the competent authority of a foreign State. Detention pending extradition is imposed for such time as is necessary to take a decision on the person’s extradition and for the extradition itself; however, the period must not exceed twelve months (Article 584 § 10). If there is a complaint by a detainee or his or her lawyer, the investigating judge must check whether there are any grounds for the person’s release (Article 584 § 12), but this may not happen more than once a month.

27.  Article 589 § 2 provides that extradition of a refugee or a person under subsidiary or temporary protection is prohibited.

28.  Under Article 590 § 4, no decision on a person’s extradition can be taken if that person has applied for refugee status or for subsidiary protection and there has been no final decision in that regard.

II. Relevant international material

29.  The 1957 European Convention on Extradition entered into force in respect of Turkey on 18 April 1960 and in respect of Ukraine on 9 June 1998. Its Article 10 reads as follows:

Lapse of time

“Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

30.  The applicant complained that his detention in connection with the examination by the Ukrainian authorities of the Turkish authorities’ extradition request had been in breach of Article 5 § 1 (f) of the Convention, the relevant parts of which 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.     The parties’ submissions

31.  The applicant submitted that his detention had been contrary to Article 5 § 1 (f) for the following reasons: (i) until 3 April 2013 his appeals against the revocation of his refugee status had still been pending (see paragraph 7 above), meaning that he could not be extradited; (ii) on 14 March 2013 he had applied for subsidiary protection and so could not be extradited while those proceedings had been pending; and (iii) from 15 August 2013 onwards his detention had also become unlawful since his prosecution in Turkey had become time-barred.

32.  The Government did not submit observations on the admissibility and merits of the case within the time-limits set.

B.     Admissibility

33.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

C.     Merits

34.  A summary of the relevant general principles of the Court’s case-law can be found in Khomullo v. Ukraine (no. 47593/10, §§ 51-53, 27 November 2014).

35.  The Court notes at the outset that there is no indication that the legal framework under which the applicant was detained pending his extradition was deficient in any way or that the authorities did not pursue the proceedings for his extradition with requisite diligence.

36.  As to the arguments raised by the applicant (see paragraph 31 above), the Court notes that he did not point to any provision of domestic law which would support his submissions that he had retained his refugee status in Ukraine while his appeals against the decision to revoke that status had been pending. Likewise, no provision of domestic law prevented his extradition detention while his application for subsidiary protection was pending. While those two sets of proceedings may well have constituted a bar to his actual extradition to Turkey while they were pending, there was no bar to extradition once they were concluded in a manner unfavourable to the applicant. Therefore, the mere fact that those proceedings were pending does not put in doubt the compliance of the applicant’s detention with the requirements of domestic law and with Article 5 § 1 of the Convention.

37.  By contrast, from 15 August 2013 (when the applicant’s prosecution in Turkey became time-barred) the applicant’s extradition became definitively impossible under the European Convention on Extradition, which is binding on Ukraine. Despite that fact, the applicant was not released until 30 August 2013 (see paragraphs 23 and 29 above). The Court has already found violations of Article 5 § 1 of the Convention in similar circumstances (see, for example, Dubovik v. Ukraine, nos. 33210/07 and 41866/08, §§ 61 and 62, 15 October 2009; Garkavyy v. Ukraine, no. 25978/07, §§ 70 and 75, 18 February 2010; and Mokallal v. Ukraine, no. 19246/10, § 44, 10 November 2011). It sees no reason to find otherwise in the present case.

38.  There has accordingly been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 15 to 30 August 2013.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  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.”

40.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

41.  The Government did not comment.

42.  The Court, ruling on an equitable basis, awards the applicant EUR 4,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicant.

43.  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 on account of the applicant’s detention from 15 to 30 August 2013;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

4.   Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

        Anne-Marie Dougin                                                         Mārtiņš Mits
    Acting Deputy Registrar                                                        President