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FIFTH
SECTION
CASE OF KAMYSHEV v. UKRAINE
(Application
no. 3990/06)
JUDGMENT
STRASBOURG
20
May 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 Kamyshev v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Zdravka Kalaydjieva,
judges,
Mykhaylo Buromenskiy, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3990/06) 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 Belarusian national, Mr Oleg Leonidovich
Kamyshev (“the applicant”), on 26 January 2006.
- The
applicant, who had been granted legal aid, was represented by Mr A.
P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their
Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
13 December 2006 the President of the Fifth 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 § 3).
- Written
submissions were received from the Helsinki Foundation for Human
Rights in Warsaw and from the International Federation for Human
Rights which had been granted leave by the President to intervene as
a third party (Article 36 § 2 of the Convention and Rule 44
§ 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960.
- In
March 2003 the State authorities of Belarus arrested Mr D., a
former Deputy President of the Belarus Customs Committee for neglect
of his official duties. The applicant was involved in the case as a
witness. The arrest of Mr D. was part of the campaign organised by
the Republic of Belarus on “combating corruption and offences
committed by public officials.”
- According
to the applicant, in the autumn of 2004 the investigating authorities
put pressure on him to testify against Mr D., stating that if he
refused he would also be prosecuted.
- In
December 2004 the applicant went to Zhytomyr, Ukraine, to visit his
grandmother. While he was there he had a heart attack, underwent
in-hospital treatment for four months and was eventually declared
“second category disabled” by the local medical
commission. According to the applicant, his wife informed the
investigating authorities of Belarus where he was staying in Ukraine
and about his illness.
- In
the beginning of 2005 the applicant obtained a residence permit from
the Ukrainian authorities.
- On
8 June 2005 criminal proceedings were initiated against the applicant
in Belarus for abuse of power during his employment in 2002-2003 as a
customs officer under the third paragraph of Article 424 of the
Criminal Code of Belarus, for which the maximum punishment was ten
years' imprisonment. The same day the investigating authorities of
Belarus decided that the applicant had absconded and should be
detained
- On
7 July 2005 the Belarusian authorities issued an international arrest
warrant.
- On
29 July 2005 police officers from the Department of Combating
Organised Crime of the Ministry of the Interior apprehended the
applicant in Zhytomyr. He was detained in Zhytomyr's Temporary
Detention Centre (“the ITU”).
- On
1 August 2005 the applicant was brought before the Korolyovsky
District Court of Zhytomyr (“the Korolyovsky Court”),
which ordered the his provisional detention for ten days.
- On
3 August 2005 the General Prosecutor's Office of Ukraine (“the
GPO”) received a request by fax from the General Prosecutor's
Office of Belarus for the applicant's extradition. The original
version of the request and the accompanying documents were received
on 12 August 2005.
- On
4 August 2005 the applicant complained of a headache and dizziness
and an ambulance was called for him. He was diagnosed with
hypertension and given medicaments to lower his blood pressure. The
ambulance team concluded that the applicant's condition did not
preclude his staying in the ITU.
- On
8 August 2005 the Korolyovsky Court decided that the applicant should
be further detained for a period of one month to ensure his
extradition to Belarus.
- On
16 August 2005 the GPO decided that the applicant should be
extradited to Belarus. It gave orders to the State Department on
Enforcement of Sentences to proceed with the applicant's extradition.
- On
19 August 2005 the applicant's representatives appealed to the
Pechersky District Court of Kyiv (“the Pechersky Court”)
against the decision on the applicant's extradition. They maintained
that the prosecution of the applicant was part of a politically
motivated campaign against some senior custom officers in order to
demonstrate to the people of Belarus that there was an ongoing “fight
against corruption”. They also noted that the applicant had
previously been questioned as a witness in the case against Mr D.,
a former Deputy President of the Belarus Customs' Committee, and that
his refusal to testify against him was another reason for his
criminal prosecution. They further maintained that the decision on
extradition had been taken by the Deputy Prosecutor General, and not
the Prosecutor General as required by law.
- On
22 August 2005, due to refurbishment of the Zhytomyr ITU, the
applicant was transferred to the Chernyakhivsky ITU
- On
23 August 2005 the GPO suspended the extradition, in view of the
proceedings pending before the Pechersky District Court.
- On
26 August 2005 the Zhytomyr Regional Court of Appeal upheld the
resolution of 8 August 2005. On the same date, the applicant had a
second heart attack and was transferred to the Central City Hospital
of Zhytomyr, where he stayed, under police supervision, until
8 September 2005.
- On
2 September 2005 the Pechersky Court allowed the applicant's appeal
against the GPO's decision to extradite him and prohibited the
applicant's extradition to Belarus. In particular, it stated that the
decision to extradite the applicant had been given by the Deputy
Prosecutor General, and not the Prosecutor General himself as
required by Ukrainian law. It also stated that there was a risk of
unlawful prosecution of the applicant by the State authorities of
Belarus in order to obtain testimonies from him against the customs
officials and that the applicant's extradition would significantly
worsen his state of health.
- By
8 September 2005 the applicant was released. He remained in hospital
until 13 October 2005 but was no longer guarded by the police.
- On
16 September 2005 the GPO appealed against the decision of
2 September 2005. They noted that there was no evidence that the
criminal proceedings against the applicant in Belarus were
politically motivated or related to the applicant's political views.
Furthermore, they maintained that they could not have taken the
applicant's state of health into account since his health had
deteriorated on 26 August 2005 while the decision on his extradition
had been taken on 16 August 2005. They also noted that in their
original complaint to the Pechersky Court the applicant's
representatives had not referred to the applicant's state of health
either. They contended that the GPO had acted within their competence
in deciding on the applicant's extradition while the court had no
competence to review their decision on the applicant's extradition.
They also noted that the applicant and the first instance court
referred to the European Convention on Extradition 1957 while the
applicant's extradition was governed by the CIS Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters
1993 (“the Minsk Convention”).
-
On 13 October 2005 the applicant was referred to a specialised
neurosurgery hospital in Kyiv for medical treatment. However, he
failed to keep his appointment. According to the Government, since
that date the applicant has been in hiding and his whereabouts are
not known to them.
- On
10 November 2005 the Kyiv City Court of Appeal quashed the resolution
of the Pechersky Court of 2 September 2005. It noted that the
applicant's extradition was governed by the Minsk Convention and not
by the European Convention on Extradition, since Ukraine and Belarus
are both parties to the former agreement but not to the latter. It
further noted that the first-instance court had totally ignored the
arguments of the GPO about the lack of any political motivation
behind the criminal prosecution against the applicant and had not
substantiated its conclusion on “a risk of unlawful prosecution
of the applicant by the State authorities of Belarus in order to
obtain testimonies from him against the customs officials”. It
considered that the above conclusion, as well as some other
information (on the applicant's illness, for instance), had led the
first-instance court to commit a serious legal error. The appellate
court finally noted that the Pechersky Court had had no jurisdiction
to review the decision on the applicant's extradition, given that
decisions on extradition were exclusively within competence of the
GPO.
II. RELEVANT LAW AND PRACTICE
A. Relevant international and domestic law
1. European Convention on Extradition 1957
- Ukraine
is party to the Convention, which entered into force in respect of
Ukraine on 9 June 1998. Ukraine made the following reservation
contained in the instrument of ratification, deposited on
11 March 1998:
“Ukraine reserves the right to refuse extradition
if the person whose extradition is requested cannot, on account of
his/her state of health, be extradited without damage to his/her
health.”
- The
explanatory report to the Convention provides in so far as relevant:
“An expert proposed the adoption of an Article 6
(a), worded as follows:
"If the arrest and surrender of the person claimed
are likely to cause him consequences of an exceptional gravity and
thereby cause concern on humanitarian grounds particularly by reason
of his age or state of health, extradition may be refused."
This proposal was inspired by humanitarian
considerations, but was not adopted by the committee. It was decided
that a reservation could be made on this subject under the terms of
Article 26; this reservation, being somewhat general in nature,
could perhaps be made with reference to Article 1 of the
Convention.”
2. The CIS Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters 1993 (“the
Minsk Convention”)
- The
Convention was ratified by the Ukrainian Parliament on 10 November
1994. It entered into force in respect of Ukraine on 14 April 1995
and in respect of Belarus on 19 May 1994. Both countries also
ratified the Protocol to the Minsk Convention 1997, which entered
into force in their respect on 17 September 1997. In ratifying the
Convention and its Protocol Ukraine did not make a reservation
similar to its reservation to the European Convention on Extradition
(see paragraph 27 above).
- Other
relevant international and domestic law and practice is summarised in
the case of Soldatenko (Soldatenko v. Ukraine, 2440/07,
§§ 21-29 and 31, 23 October 2008).
B. Relevant international materials concerning the
situation of human rights in Belarus
- The
relevant international materials are summarised in the case of Puzan
(Puzan v. Ukraine, 51243/08, §§ 20-24, 18 February
2010).
THE LAW
I. GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government maintained that the application contained no documents
signed by the applicant himself, except the form granting his lawyer
authority to act on his behalf (an “authority form”)
dated 26 January 2005. In their opinion, the authority form
was not valid as it had been signed prior to the events of
July-August 2005 of which the applicant complained. They further
noted that the applicant had not given authority for his
representation in this particular case and that there was no
indication that the applicant had ever communicated with the Court
directly or had otherwise demonstrated his awareness and interest in
the present application.
- The
applicant's representative furnished the document dated 27 April
2007 which was signed by the applicant confirming his interest in
pursuing the present application and stated that the authority form
had been erroneously dated 26 January 2005 instead of 26 January
2006. Later, the applicant supplemented the observations of his
representative in reply to those of the Government by his own
submissions of 20 September 2007. The applicant further furnished a
new authority form to Mr Bushchenko dated 30 July 2008.
- The
Court notes that despite the erroneous date of the authority form and
the possible difficulties in maintaining regular communication
between the applicant and his representative, which could be
explained by the unsettled situation of the applicant (see paragraph
25 above), the case file contains sufficient evidence of the
applicant's interest in pursuing this application and that he had
authorised Mr Bushchenko to represent him before this Court.
- The
Court finds no circumstances in the present case to conclude that the
applicant has lost interest in his case or that his lawyer has not
been authorised or is no longer authorised to act on his behalf. The
Court accordingly dismisses this objection of the Government.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that if extradited to Belarus he would face the
risk of being subjected to ill-treatment by the Belarus authorities.
He further contended that the conditions of his detention were
inhuman and degrading. He relied on Article 3, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Risk of ill-treatment in the event of extradition to
Belarus
1. The parties' submissions
- The
Government maintained that the applicant had failed to substantiate
his complaint under Article 3 of the Convention. He had never made
any such allegations before the domestic authorities. They considered
that his reference to the reports describing the general human rights
situation in Belarus were insufficient and that evidence was needed
that the applicant himself ran a personal risk of facing
ill-treatment in Belarus. They noted that the applicant had not
challenged the decision on his extradition before the administrative
courts under the Code of Administrative Justice.
- The
applicant considered that the general human rights situation in
Belarus was serious enough to justify his fears. He further
maintained that being a criminal suspect in Belarus was a sufficient
ground to fear ill-treatment. He asserted that there were no special
circumstances that would protect him from the use of torture, which
threatened any person detained by the police in Belarus. He noted
that the legal system in Belarus did not provide for sufficient
guarantees against torture but on the contrary created fertile soil
for the widespread use of the practice.
- The
applicant also contended that he belonged to a particular group of
persons “involved in the investigation concerning Mr D., former
Deputy President of the Belarus Customs Committee”. He
maintained that the investigators in Belarus had put pressure on him
to testify against Mr D. and threatened him with criminal prosecution
if he refused to cooperate. The applicant considered that the
Belarusian investigating authorities did not have enough evidence
against him, which suggested that they might try to extract a
confession from him.
- The
third parties noted the lack of effective domestic remedies to
investigate allegations of ill-treatment, lack of independence of the
judiciary and the poor human-rights record in Belarus. They referred
to international reports prepared by international governmental and
non-governmental organisations and foreign States with regard to the
human-rights situation in Belarus. They also noted the lack of
cooperation by the Belarus authorities with international
organisations in the field of human rights.
- They
concluded that the issue of the applicant's extradition should be
decided not automatically, but after careful examination of all the
relevant factors and his individual case. In their opinion, the lack
of an individual approach and the failure to take into account the
human-rights situation in Belarus in deciding on the applicant's
extradition would be contrary to Article 3 of the Convention.
2. The Court's assessment
- As
to the Government's objection concerning exhaustion of domestic
remedies, the Court notes that it dismissed a similar objection by
the Government based on the same domestic law provisions in the case
of Soldatenko (cited above, § 49). It sees no reason to
depart from its findings in that case and accordingly dismisses the
objection as to the necessity for the applicant to exhaust the
remedies indicated by the Government.
- The
Court further reiterates that in determining whether it has been
shown that the applicant runs a real risk, if expelled, of suffering
treatment proscribed by Article 3, it will assess the issue in the
light of all the material placed before it, or, if necessary,
material obtained proprio motu. In cases such as the present
the Court must examine the foreseeable consequences of sending the
applicant to the receiving country, bearing in mind the general
situation there and his personal circumstances (see Vilvarajah and
Others v. the United Kingdom, judgment of 30 October 1991,
Series A no. 215, § 108 in fine). To that
end, as regards the general situation in a particular country, the
Court has often attached importance to the information contained in
recent reports from independent international human-rights-protection
associations such as Amnesty International, or governmental sources,
including the US State Department (see, for example, Chahal v. the
United Kingdom, judgment of 15 November 1996, Reports of
Judgments and Decisions 1996 V, §§ 99-100; Müslim
v. Turkey, no. 53566/99, § 67, 26 April 2005; Said
v. the Netherlands, no. 2345/02, § 54, 5 July 2005;
Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65-66,
20 February 2007; and Saadi v. Italy [GC], no. 37201/06,
§§ 143-146, 28 February 2008). At the same time,
it has held that the mere possibility of ill-treatment on account of
an unsettled situation in the receiving country does not in itself
give rise to a breach of Article 3 (see Vilvarajah and Others,
cited above, § 111, and Fatgan Katani and Others v.
Germany (dec.), no. 67679/01, 31 May 2001) and that, where the
sources available to it describe a general situation, an applicant's
specific allegations in a particular case require corroboration by
other evidence (see Mamatkulov and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, § 73, ECHR 2005 I).
- In
the circumstances of the present case, the Court notes that the
international documents available demonstrate serious concerns as to
the human rights situation in Belarus, in particular with regard to
political rights and freedoms. However, reference to a general
problem concerning human rights observance in a particular country
cannot alone serve as a basis for refusal of extradition. In this
regard, the Court notes that the applicant does not claim to belong
to the political opposition, which is widely recognised as a
particularly vulnerable group in Belarus, or to any other similar
group. The applicant's allegations that any criminal suspect in
Belarus runs a risk of ill-treatment are too general and there is no
indication that the human rights situation in Belarus is serious
enough to call for total ban on extradition to that country. The
applicant's allegations that the customs officers under suspicion of
corruption constitute a separate vulnerable group is not supported by
any evidence either. Therefore, it cannot be said that the applicant
referred to any individual circumstances which could substantiate his
fears of ill-treatment.
- In
the Court's opinion therefore, the applicant has failed to
substantiate his allegations that his extradition to Belarus would be
in violation of Article 3 of the Convention. It follows that this
part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Conditions of the applicant's detention in Ukraine
- The
parties made no observations as to the admissibility of this
complaint. In particular, the Government did not submit any
observations on the question of the six-month rule. In this respect
the Court reiterates that the six-month rule, in reflecting the wish
of the Contracting Parties to prevent past decisions being called
into question after an indefinite lapse of time, serves the interests
not only of the respondent Government but also of legal certainty as
a value in itself. It marks out the temporal limits of supervision
carried out by the organs of the Convention and signals to both
individuals and State authorities the period beyond which such
supervision is no longer possible. It is therefore not open to the
Court to set aside the application of the six-month rule solely
because a Government have not made a preliminary objection based on
it (see Walker v. the United
Kingdom (dec.), no. 34979/97, ECHR 2000-I).
- The Court reiterates that it has previously found that
there is a lack of effective domestic remedies in Ukraine with
respect to conditions of detention and that this constituted a
structural problem (see Koktysh v. Ukraine,
no. 43707/07, §§ 85-87, 10 December 2009; Kucheruk
v. Ukraine, no. 2570/04, §§ 116-118, ECHR 2007 X).
Where no effective remedy is available to an applicant, the six-month
period runs from the date of the acts or measures complained of, or
from the date of knowledge of that act or its effect on or prejudice
to the applicant (Dennis and Others v. the United Kingdom
(dec.), no. 76573/01, 2 July 2002). Therefore, the examination
of the applicant's complaint under Article 3 must be limited to the
periods of detention which fall within the six-month period prior to
the date on which the application was lodged (see Koval v. Ukraine
(dec.), no. 65550/01, 30 March 2004, and Mikhaniv v.
Ukraine (dec.), no. 75522/01, 20 May 2008).
- In
the present case, the applicant's detention terminated on 26 August
2005 when he was hospitalised. Even if the period of the applicant's
stay in the civilian hospital under police surveillance, which lasted
until 8 September 2005, is taken into account, none of the above
periods of the applicant's detention in three different institutions
(see paragraphs 12, 19, 21 and 23 above) falls within the six-month
limit, given that his complaint about the conditions of his detention
was first formulated in his application form dated 11 March 2006. It
follows that this complaint was introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- In
reply to the Government's observations the applicant made a new
complaint alleging the risk of flagrant denial of justice by the
Belarus authorities. He relied on Article 6 § 1 of the
Convention, which provides in so far as relevant as follows:
Article 6 § 1
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The Court observes that in Soering (see Soering
v. the United Kingdom, 7 July 1989, § 113, Series A no. 161)
it held:
“The right to a fair trial in criminal
proceedings, as embodied in Article 6, holds a prominent place in a
democratic society ... The Court does not exclude that an issue might
exceptionally be raised under Article 6 by an extradition decision in
circumstances where the fugitive has suffered or risks suffering a
flagrant denial of a fair trial ...”
- Similar
to the applicant's allegations under Article 3, this complaint under
Article 6 also refers to the general human rights situation in
Belarus and does not refer to any individual circumstances which
could substantiate the applicant's fears of receiving an unfair
trial.
- In
the Court's opinion, therefore, the applicant has failed to
substantiate his allegations that his extradition to Belarus would be
in violation of Article 6 of the Convention. It follows that this
part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained that he had had no effective remedy to
challenge his extradition to Belarus. He relied on Article 13 of the
Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court, having found the applicant's complaints under Article 3 of the
Convention inadmissible, concludes that he has no arguable claim for
the purposes of Article 13 of the Convention (see Boyle and Rice
v. the United Kingdom, judgment of 18 April 1988, Series A no.
131, p. 23, § 52).
- It
follows that this part of the application must be rejected as being
incompatible ratione materiae with the provisions of the
Convention, pursuant to Article 35 §§ 3 and 4.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant complained that he had been discriminated against by the
Ukrainian authorities, who did not take into account his state of
health because he was a Belarusian national and his extradition was
conducted under the Minsk Convention. He considered that had he been
a national of a country which is party to the European Convention on
Extradition, the Ukrainian authorities would have been obliged to
take his state of health into account. He referred to Article 14
of the Convention in conjunction with Article 3 of the Convention.
Article 14 provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court reiterates that Article 14 of the Convention has no independent
existence, since it has effect solely in relation to the rights and
freedoms safeguarded by the other substantive provisions of the
Convention and its Protocols. However, the application of Article 14
does not presuppose a breach of one or more of those provisions and
to this extent it is autonomous. For Article 14 to become applicable
it suffices that the facts of a case fall within the ambit of another
substantive provision of the Convention or its Protocols (see
Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR
2000 IV).
- In
the present case the Court is not called upon to decide on the
applicability of the above provisions in the applicant's case,
because even assuming such applicability this complaint is
inadmissible for the following reasons.
- The
Court reiterates that Article 14 protects against a discriminatory
difference in treatment of persons in analogous positions in the
exercise of the rights and freedoms recognised by the Convention and
its Protocols. Whether or not an individual can assert a right
derived from legislation may depend on the geographical reach of the
legislation at issue and the individual's location at the time (see
Magee v. the United Kingdom, no. 28135/95, § 50,
ECHR 2000 VI). The Court notes that the fact that the
proceedings concerning the applicant's extradition were governed by
the Minsk Convention had no connection to the applicant's
nationality. It was the participation of Ukraine, as the requested
State, and Belarus, as the requesting State, in that particular
international treaty on legal assistance in matters of extradition
that made it the instrument of choice. That choice was not related in
any way to the personal status of the applicant.
- It
concludes that the difference in treatment alleged by the applicant
does not fall within any of the grounds specified in Article 14 of
the Convention. It follows that this part of the application is
manifestly ill-founded.
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that he had been unlawfully detained by the
Ukrainian authorities and that there had been no effective judicial
review of the lawfulness of his detention and no possibility to claim
damages for this unlawful detention. He relied on Article 5 §§ 1 (c)
and (f), 4 and 5 of the Convention, which read, in so far as
relevant, as follows:
Article 5 (right to liberty and security)
“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:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
...
4. 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.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
- The
applicant maintained that his detention between 29 July 2005 and
3 August 2005 fell within the ambit of Article 5 § 1 (c) of
the Convention. He considered that once the request for his
extradition had been received by the Ukrainian authorities on 3
August 2005, his detention fell within the ambit of Article 5 §
1 (f). For the Government, the whole period of detention fell within
Article 5 § 1 (f).
- The
Court examined similar contentions in Soldatenko (cited above,
§§ 98-99). It refers to its findings there and notes that
from the facts of the present case it appears that the Ukrainian
authorities arrested and detained the applicant in order to take
action with a view to his extradition. There were no criminal
proceedings against the applicant in Ukraine. Moreover, no other
reason, except the one of extradition, has ever been advanced by the
authorities for the applicant's detention and there is no evidence in
the case-file to suggest that any such other reason has ever existed.
Therefore, notwithstanding the applicant's submissions to the
contrary, his detention has always been with a view to extradition
and his above complaint falls to be considered under Article 5 § 1
(f) of the Convention (see Novik, cited above). Therefore,
Article 5 § 1 (c) is not applicable in the present case
(see Quinn v. France, judgment of 22 March 1995, Series A
no. 311, § 53).
- The
Court further notes that the applicant's complaint under Article 5 §
5 of the Convention of a lack of effective compensatory remedies for
his unlawful detention was first formulated in his application form
of 11 March 2006, while his detention and the judicial
proceedings challenging the lawfulness of the detention took place
more than six months prior to that date: the applicant's detention
ended on 8 September 2005 and his appeal against the detention order
was rejected on 26 August 2005. Therefore, there was no factual
element that would justify admission of this belated complaint.
Despite the fact that the Government made no objection as to the
admissibility of this complaint, the Court reiterates that it is not
open to it to set aside the application of the six-month rule solely
because a Government have not made a preliminary objection based on
it (see paragraph 46 above). Accordingly the applicant's complaint
under Article 5 § 5 must be rejected as lodged out of time.
- The
Court therefore notes that the complaints under Article 5 §§
1 (f) and 4 are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that they are
not inadmissible on any other grounds. They must therefore be
declared admissible. The applicant's complaints under Article 5 §§
1 (c) and 5 of the Convention are manifestly ill-founded and out of
time respectively and must be rejected in accordance with Article 35
§§ 1, 3 and 4 of the Convention.
B. Merits
- The
parties submitted arguments similar to those made in the cases of
Soldatenko (cited above, §§ 104-107 and 116-120),
and Svetlorusov v. Ukraine (no.
2929/05, §§ 43-46 and 52-56, 12 March 2009).
- The
Court has previously found violations of Article 5 §§ 1 and
4 of the Convention in cases raising issues similar to those in the
present case (see Soldatenko, cited above, §§
109-114 and 125-127, and Svetlorusov, cited above, §§
47-49 and 57-59). These findings were primarily based on the lack of
a sufficient legal basis both for the applicants' detention pending
extradition proceedings and for regular review of the lawfulness of
their 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 different conclusion in the present case.
There has accordingly been a violation of Article 5 §§ 1
and 4 of the Convention.
VII. 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
- Dismisses the Government's objections;
- Declares the complaints under Article 5 §§ 1
(f) and 4 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 1 (f) of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
