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FIFTH
SECTION
CASE OF GARKAVYY v. UKRAINE
(Application
no. 25978/07)
JUDGMENT
STRASBOURG
18
February 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 Garkavyy v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
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 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25978/07) 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 Ukrainian national, Mr Aleksandr Leonidovich
Garkavyy (“the applicant”), on 13 May 2007.
- The
applicant, who had been granted legal aid, was represented by Ms I.
Pikh, a lawyer practising in Kyiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev,
from the Ministry of Justice.
- The
applicant alleged, in particular, that his detention was unlawful.
- On
17 February 2009 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
alleged unlawfulness of the applicant’s detention to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and is currently detained.
1. Criminal proceedings in the Czech Republic
- On
30 March 2004 the Prague City Court (městský soud)
found the applicant guilty of murder and unlawful possession of arms
under Articles 219 §§ 1, 2 (h) and 185 § 1 of the
Criminal Code, sentenced him to fourteen years’ imprisonment
and ordered his expulsion from the Czech Republic, in accordance with
Article 57 of the Criminal Code. The court considered the applicant a
fugitive and therefore decided in his absence. The applicant’s
interests were represented by defence counsel pursuant to Article 304
of the Code of Criminal Procedure.
- On
8 September 2004 the High Court (Vrchní soud), on an
appeal by the applicant’s defence counsel, upheld the
judgment of the City Court. It pointed out that an appeal on points
of law to the Supreme Court lay against its decision; the appeal on
points of law had to be lodged within two months from the date of its
notification through defence counsel.
- Pursuant
to Article 306 § 1 of the Code of Criminal Procedure, the
aforesaid decisions were notified only to the applicant’s
defence counsel.
- On
7 October 2004 the City Court ordered the applicant’s arrest.
- The
applicant received a copy of the Prague City Court’s judgment
on 19 April 2006.
2. Proceedings in Ukraine
- According
to the applicant, on 27 April 2003 he came back from the Czech
Republic, which he had been visiting as a tourist. Thereafter he
lived at his registered place of residence and worked in Ukraine.
- On
28 January 2006 officers of the Kyiv City Department for Combating
Organised Crime of the Ministry of the Interior (the Kyiv COC
Department) arrested the applicant under the international arrest
warrant issued by the Czech authorities. This fact was mentioned in a
letter of 17 February 2006 from the Deputy Head of the Kyiv COC
Department to the applicant’s mother. According to the
applicant, the officers asked him about his stay in the Czech
Republic and informed him that he was wanted by the Czech
law-enforcement authorities for murder. Later the same day he was
taken to the Kyiv Holosyiyvskyy District Police Department.
- According
to the Government, the police arrested the applicant for swearing in
public and resisting the police.
- On
30 January 2006 the applicant was taken to the Kyiv Holosyiyvskyy
District Court (the District Court), which considered materials
submitted by the Kyiv Holosyiyvskyy District Police Department and
found the applicant guilty of swearing in public and resisting the
police and sentenced him to five days’ administrative
detention. The applicant’s detention took effect from 1 p.m. on
28 January 2006.
- According
to the Government it was on 30 January 2006 that the National Central
Bureau of Interpol in Ukraine informed the Kyiv COC Department that
the applicant’s name appeared in the database of international
arrest warrants.
- On
3 February 2006 the applicant was taken to the Kyiv COC Department.
- The
same day the National Central Bureau of Interpol in Ukraine sent a
copy of the applicant’s arrest warrant to the Kyiv COC
Department. The same day the applicant was arrested as a criminal
suspect under the Code of Criminal Procedure (Article 106).
- On
7 February 2006 the applicant was taken to the District Court, which
decided to detain him for forty days under Articles 12 and 16 of the
1957 Convention on Extradition, on the basis of the arrest warrant
issued by the Prague City Court on 30 March 2004. The decision
mentioned that the applicant was a Ukrainian national and that he had
been arrested on 3 February 2006 at 7.30 p.m.
- On
13 March 2006 the Kyiv COC Department requested the District Court to
extend the applicant’s detention on the basis of the request of
the Ministry of Justice of the Czech Republic to the Ministry of
Justice of Ukraine concerning the transfer of the criminal case
against the applicant under the European
Convention on the Transfer of Proceedings in Criminal Matters.
- On
14 March 2006 the District Court extended the applicant’s
detention for thirty days under Articles 32 and 33 of the European
Convention on the International Validity of Criminal Judgments
and Article 165-2 of the Code of Criminal Procedure.
- The
applicant was not present in court and received a copy of this
decision only ten days later.
- On
20 March 2006 the Kyiv City Court of Appeal (the Court of Appeal)
upheld the decision of 14 March 2006.
- On
11 March 2006 the Ministry of Justice of Ukraine received the
materials in the criminal case file against the applicant from its
Czech counterpart and transferred them to the Supreme Court of
Ukraine for examination.
- By
a letter of 7 April 2006, the Supreme Court of Ukraine referred the
case file materials to the Court of Appeal to bring the judgment of
the Czech courts into compliance with Ukrainian law under the
Convention
on the Transfer of Sentenced Persons. The Court of Appeal scheduled
the case for a hearing on 27 April 2006.
- According
to the Government, on 14 April 2006 the District Court extended the
applicant’s detention until the decision on recognition and
enforcement of the judgment of the Prague City Court of 30 March 2004
was given. According to the applicant, he had not been aware of this
decision and learned about it only from the Government’s
observations.
- On
26 April 2006 the applicant’s lawyer submitted a request to the
Court of Appeal, stating that several different international
treaties on cooperation in criminal matters had been applied in the
applicant’s case, which meant that the competent authorities of
the Czech Republic and Ukraine had not decided what treaty was to
serve as the basis for enforcement of the judgment against the
applicant. Therefore, in the lawyer’s opinion, the European
Convention on the International Validity of Criminal Judgments was an
appropriate legal basis in the applicant’s case and the
judgment of the Czech court could not be enforced owing to the fact
that the applicant had been tried and sentenced in
absentia
and Ukraine had made a reservation to the said treaty, refusing to
enforce judgments rendered in
absentia.
The lawyer requested postponement of the hearing scheduled on
27 April 2006, to request the Czech authorities to provide
additional documents, to give him and the applicant the opportunity
to study the case file, and to release the applicant.
27. On
15 May 2006 the lawyer submitted another request to the Court of
Appeal, repeating his arguments about the principle of refusing to
enforce judgments rendered in
absentia,
as expressed by Ukraine in the law on ratification of the European
Convention on the Transfer of Proceedings in Criminal Matters. He
further submitted that other European treaties in criminal matters
could not apply either. He noted in particular that Article 3 of the
Convention
on the Transfer of Sentenced Persons required the consent of the
sentenced person for his transfer and that the applicant did not give
such consent. He requested, therefore, that the Czech authorities’
request for their judgment to be brought into compliance with
Ukrainian law be refused.
28. On
24 May 2006 the applicant’s lawyer made further written
submissions to the Court of Appeal. He reiterated that the applicant
had been absent for the whole of the criminal proceedings against him
in the Czech Republic. He repeated the arguments in his requests of
26 April and 24 May 2006. In addition he noted that although the
Additional Protocol to the Convention on the Transfer of Sentenced
Persons foresaw a possibility of transferring the sentenced person
without his consent, it applied only to persons who had fled from
justice to their home country after the trial, and could not apply to
persons tried in
absentia.
He also noted that the instructions of the Supreme Court in its
letter of 7 April 2006 could not be binding on the Court of Appeal,
as the above letter was not a procedural document. The lawyer
requested that the Court of Appeal reject the request of the Czech
authorities and release the applicant.
- On
16 June 2006 the Court of Appeal examined the case and decided to
recognise the judgment of the Prague City Court of 30 March 2004 as
being in compliance with Ukrainian legislation. In its decision the
court noted that the applicant, a citizen of Ukraine, could not be
extradited to the Czech Republic. Given that the applicant had been
sentenced in the Czech Republic and the judgment and case file
materials had been transferred to Ukraine in order to recognise the
judgment and to convert the sentence, the court considered that it
was actually a de facto and de jure transfer of the
applicant as a sentenced person for serving his sentence in Ukraine.
The court considered that such solution was based on paragraph 1 of
Article 2 of the Additional
Protocol to the Convention
on the Transfer of Sentenced Persons and that paragraph 2 of the same
Article confirmed the lawfulness of the applicant’s detention
in Ukraine.
30. As
to the applicant’s argument that Ukraine undertook not to
enforce judgments rendered in
absentia,
the court noted that the Czech Republic was not a party to the
European Convention on the International Validity of Criminal
Judgments to which Ukraine made such reservation. Furthermore, the
court considered that the term “in
absentia”
should be interpreted in the light of the reasons for absence of the
person concerned from the court proceedings. The court observed that
there could be plausible reasons for the absence of the accused and
considered that the legislature had had such situations in mind when
it made the reservation in the law on ratification of the
European Convention on the International Validity of Criminal
Judgments. On the other hand, if the accused knowingly absconded,
such a person could be sentenced in
absentia.
The court noted that it could not question what had been established
by the Prague City Court, which had stated in its decision that the
applicant had absconded and had therefore been sentenced in
absentia.
The court continued as follows:
“The
conviction in
absentia
of [Mr] Garkavyy O. L. on the territory of the Czech Republic, by
analogy, fully corresponds to the provisions of the second paragraph
of Article 262 of the C[ode of] C[riminal] P[rocedure] of Ukraine
concerning the possibility and lawfulness of examination of a
judicial case in the absence of the defendant, in particular when he
is outside the territory of Ukraine and avoids appearing before the
court.”
31. The
court further noted that the fact that the Ministry of Justice of
Ukraine had accepted the request of their Czech counterpart
demonstrated the readiness of the Ukrainian State to comply with the
judgment despite the fact that it had been rendered in
absentia.
The
court noted as follows:
“Erroneous reference by the Ministry of Justice of
the Czech Republic and the Ministry of Justice of Ukraine, in their
cover letters, to the sending of the judgment to bring it into
compliance with the Ukrainian legislation in force under the European
Convention on the Transfer of Proceedings in Criminal Matters does
not deprive the court of the right to apply the Convention on the
Transfer of Sentenced Persons, on which the defendant’s
representative insisted. On the contrary, the Kyiv City Court of
Appeal is obliged to examine this judicial case under the rules of
the latter Convention, as correctly indicated in the cover letter of
the Supreme Court, because only such a procedure of judicial
examination corresponds to the spirit of this Convention as well as
that of the Constitution of Ukraine and the current criminal and
criminal procedure legislation of Ukraine.
This means that application of the European Convention
on the Transfer of Sentenced Persons in the examination of the
present judicial case is the only correct and lawful action.”
- The
court concluded that there were no procedural or other legal
obstacles to recognising the judgment of the Prague City Court in
compliance with Ukrainian legislation, and converted the sentence
under the Criminal Code of Ukraine. The court left the sentence of
the Prague City Court unchanged.
- On
14 July 2006 the applicant’s lawyer appealed against this
decision to the Supreme Court. In his appeal he complained that
Ukrainian legislation and European treaties on criminal matters had
been applied incorrectly. The applicant’s lawyer noted that
despite the fact that the European
Convention on the International Validity of Criminal Judgments could
not apply between Ukraine and the Czech Republic, the law on
ratification of this treaty was in force and had to be used in any
case. He noted that the applicant’s trial had been conducted in
his absence and that there was nothing to indicate that the Czech
authorities had tried to inform the applicant about the trial or to
use the Convention on Mutual Assistance in Criminal Matters to
involve him in the proceedings. He further noted that neither
international treaties nor Ukrainian law rendered the application of
provisions about judgments rendered in
absentia
dependent on reasons for absence before the courts and that the Court
of Appeal had adopted its own interpretation of the term “in
absentia”,
in contravention of the law. He also criticised the analogy used by
the court in comparing the trial in
absentia
in the Czech Republic with the provisions of the Code of Criminal
Procedure of Ukraine. He further noted that the Convention on the
Transfer of Sentenced Persons and the Additional Protocol thereto
were inapplicable in the applicant’s case, because the judgment
against him had been rendered in
absentia
and the Ministry of Justice of the Czech Republic had not made a
request for the applicant to be transferred as a sentenced person. He
noted that the Czech Republic and Ukraine had agreed on the
application of the European Convention on the Transfer of Proceedings
in Criminal Matters, and the Court of Appeal had merely to decide on
the agreement between the Ministry of Justice of Ukraine and the
Ministry of Justice of the Czech Republic by declaring their
reference to the European Convention on the Transfer of Proceedings
in Criminal Matters erroneous. Furthermore, Article 22 of the
Convention on the Transfer of Sentenced Persons clearly stipulated
that it was for the central authorities to decide under what treaty
on international legal assistance their requests should be treated.
He further noted that the court had not verified that the judgment of
the Czech court was final and enforceable. He requested the Supreme
Court to quash the decision of the Court of Appeal and to reject the
request of the Czech authorities concerning the applicant.
34. On
12 December 2006 the Supreme Court upheld the decision of the Court
of Appeal. It noted, in particular, that the judgment of the Czech
Court was final, that the applicant could not be extradited and that
application of the Convention
on the Transfer of Sentenced Persons in the applicant’s case
was reasonable. In addition, it noted that the Court of Appeal had
correctly interpreted the issue of the applicant’s trial in
absentia
with reference to Article 262 of the Code of Criminal Procedure.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW
A. The relevant domestic law of Ukraine
1. Constitution of Ukraine
- The
relevant provisions of the Constitution read as follows:
Article 9
“International treaties that are in force and are
agreed to be binding by the Verkhovna Rada of Ukraine are part of the
national legislation of Ukraine.”
Article 25
“...A citizen of Ukraine shall not be expelled
from Ukraine or surrendered to another State...”
Article 29
“Every person has the right to freedom and
personal inviolability.
No one shall be arrested or held in custody other than
pursuant to a reasoned court decision and only on grounds and in
accordance with a procedure established by law...”
2. Code of Criminal Procedure
- The
relevant provisions of the Code read as follows:
Article 262
Participation of the defendant in court sittings
“Examination of the case in sittings of the court
of first instance shall be conducted with the participation of the
defendant, whose appearance before the court is obligatory.
Examination of the case in the absence of the defendant
shall be allowed only in exceptional circumstances:
(1) if the defendant is outside the territory of Ukraine
and avoids appearing before the court;
(2) if the defendant requests examination in his absence
of a case concerning an offence not punishable by imprisonment.
However, the court shall be entitled in this case to decide on the
obligatory appearance of the defendant.”
3. Law on ratification of the European Convention on
the International Validity of Criminal Judgments
- The
relevant provision of the Law reads as follows:
“...Ukraine will refuse:
...sanctions rendered in the absence of the
defendant...”
B. International treaties pertinent to the case
1. European Convention on Extradition
- Both
Ukraine and the Czech Republic are parties to the Convention. It
entered into force in respect of the Czech Republic on 1 January 1993
and in respect of Ukraine on 9 June 1998. When ratifying the
Convention, Ukraine made a reservation that it would not extradite
citizens of Ukraine to another State.
- Article
16 of the Convention reads as follows:
Article 16 – Provisional arrest
“1. In case of urgency the competent
authorities of the requesting Party may request the provisional
arrest of the person sought. The competent authorities of the
requested Party shall decide the matter in accordance with its law.
2. The request for provisional arrest shall
state that one of the documents mentioned in Article 12,
paragraph 2.a, exists and that it is intended to send a request
for extradition. It shall also state for what offence extradition
will be requested and when and where such offence was committed and
shall so far as possible give a description of the person sought.
3. A request for provisional arrest shall be
sent to the competent authorities of the requested Party either
through the diplomatic channel or direct by post or telegraph or
through the International Criminal Police Organisation (Interpol) or
by any other means affording evidence in writing or accepted by the
requested Party. The requesting authority shall be informed without
delay of the result of its request.
4. Provisional arrest may be terminated if,
within a period of 18 days after arrest, the requested Party has
not received the request for extradition and the documents mentioned
in Article 12. It shall not, in any event, exceed 40 days
from the date of such arrest. The possibility of provisional release
at any time is not excluded, but the requested Party shall take any
measures which it considers necessary to prevent the escape of the
person sought.
5. Release shall not prejudice re arrest
and extradition if a request for extradition is received
subsequently.”
2. European Convention on the International Validity of
Criminal Judgments
- This
Convention entered into force in respect of Ukraine on 12 June 2003.
Ukraine declared that it reserved the right to refuse enforcement of
sanctions rendered in absentia.
- The
Czech Republic is not a party to this Convention.
- The
Articles relied on by the Ukrainian court in extending the
applicant’s detention read as follows:
Article 32
“1. When the requesting State has
requested enforcement, the requested State may arrest the person
sentenced:
a. if, under the law of the requested State,
the offence is one which justifies remand in custody, and
b. if there is a danger of abscondence or, in
case of a judgment rendered in absentia, a danger of secretion
of evidence.
2. When the requesting State announces its
intention to request enforcement, the requested State may, on
application by the requesting State arrest the person sentenced,
provided that requirements under a and b of the preceding paragraph
are satisfied. The said application shall state the offence which led
to the judgment and the time and place of its perpetration, and
contain as accurate a description as possible of the person
sentenced. It shall also contain a brief statement of the facts on
which the judgment is based.”
Article 33
“1. The person sentenced shall be held
in custody in accordance with the law of the requested State; the law
of that State shall also determine the conditions on which he may be
released.
2. The person in custody shall in any event
be released:
a. after a period equal to the period of
deprivation of liberty imposed in the judgment;
b. if he was arrested in pursuance of
Article 32, paragraph 2, and the requested State did not
receive, within 18 days from the date of the arrest, the request
together with the documents specified in Article 16.”
3. European
Convention on the Transfer of Proceedings in Criminal Matters
- Both
Ukraine and the Czech Republic are parties to the Convention. It
entered into force in respect of the Czech Republic on 1 January 1993
and in respect of Ukraine on 29 December 1995.
- The
relevant provisions of the Convention read as follows:
Article 8
“1. A Contracting State may request
another Contracting State to take proceedings in any one or more of
the following cases:
a. if the suspected person is ordinarily
resident in the requested State;
b. if the suspected person is a national of
the requested State or if that State is his State of origin;
c. if the suspected person is undergoing or
is to undergo a sentence involving deprivation of liberty in the
requested State;
d. if proceedings for the same or other
offences are being taken against the suspected person in the
requested State;
e. if it considers that transfer of the
proceedings is warranted in the interests of arriving at the truth
and in particular that the most important items of evidence are
located in the requested State;
f. if it considers that the enforcement in
the requested State of a sentence if one were passed is likely to
improve the prospects for the social rehabilitation of the person
sentenced;
g. if it considers that the presence of the
suspected person cannot be ensured at the hearing of proceedings in
the requesting State and that his presence in person at the hearing
of proceedings in the requested State can be ensured;
h. if it considers that it could not itself
enforce a sentence if one were passed, even by having recourse to
extradition, and that the requested State could do so;
2. Where the suspected person has been
finally sentenced in a Contracting State, that State may request the
transfer of proceedings in one or more of the cases referred to in
paragraph 1 of this article only if it cannot itself enforce the
sentence, even by having recourse to extradition, and if the other
Contracting State does not accept enforcement of a foreign judgment
as a matter of principle or refuses to enforce such sentence.”
Article 28
“Upon receipt of a request for proceedings
accompanied by the documents referred to in Article 15,
paragraph 1, the requested State shall have jurisdiction to
apply all such provisional measures, including remand in custody of
the suspected person and seizure of property, as could be applied
under its own law if the offence in respect of which proceedings are
requested had been committed in its territory.”
4. Convention on the Transfer of Sentenced Persons
- Both
Ukraine and the Czech Republic are parties to the Convention. It
entered into force in respect of the Czech Republic on 1 January 1993
and in respect of Ukraine on 1 January 1996.
Article 9
Effect of transfer for administering State
“1. The competent authorities of the administering
State shall:
a. continue the enforcement of the sentence immediately
or through a court or administrative order, under the conditions
set out in Article 10, or
b. convert the sentence, through a judicial or
administrative procedure, into a decision of that State, thereby
substituting for the sanction imposed in the sentencing State a
sanction prescribed by the law of the administering State for the
same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform
the sentencing State before the transfer of the sentenced person as
to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by
the law of the administering State and that State alone shall be
competent to take all appropriate decisions.
4. Any State which, according to its national law,
cannot avail itself of one of the procedures referred to in
paragraph 1 to enforce measures imposed in the territory of
another Party on persons who for reasons of mental condition have
been held not criminally responsible for the commission of the
offence, and which is prepared to receive such persons for further
treatment may, by way of a declaration addressed to the Secretary
General of the Council of Europe, indicate the procedures it will
follow in such cases.”
Article 22
Relationship to other Conventions and Agreements
“... 4. If a request for transfer falls within the
scope of both the present Convention and the European Convention on
the International Validity of Criminal Judgments or another agreement
or treaty on the transfer of sentenced persons, the requesting State
shall, when making the request, indicate on the basis of which
instrument it is made.”
5. Additional Protocol to the Convention on the
Transfer of Sentenced Persons
- Both
Ukraine and the Czech Republic are parties to the Convention. It
entered into force in respect of the Czech Republic on 1 February
2003 and in respect of Ukraine on 1 November 2003. The relevant
provisions of the Protocol read as follows:
Article 2
Persons having fled from the sentencing State
1. Where a national of a Party who is the subject of a
sentence imposed in the territory of another Party as a part of a
final judgment, seeks to avoid the execution or further execution of
the sentence in the sentencing State by fleeing to the territory of
the former Party before having served the sentence, the sentencing
State may request the other Party to take over the execution of the
sentence.
2. At the request of the sentencing State, the
administering State may, prior to the arrival of the documents
supporting the request, or prior to the decision on that request,
arrest the sentenced person, or take any other measure to ensure that
the sentenced person remains in its territory, pending a decision on
the request. Requests for provisional measures shall include the
information mentioned in paragraph 3 of Article 4 of the Convention.
The penal position of the sentenced person shall not be aggravated as
a result of any period spent in custody by reason of this paragraph.
3. The consent of the sentenced person shall not be
required to the transfer of the execution of the sentence.
- The
explanatory report to the Additional Protocol notes that Article 2
“envisages a situation where a national of State A is sentenced
in State B and subsequently leaves State B before or while serving
the sentence and voluntarily enters State A.” It further
provides that this Article does not cover the situations where a
national of State A is tried and sentenced in absentia in
State B.
THE LAW
I. SCOPE OF THE CASE
- In
reply to the Government’s observations, the applicant
reiterated his complaints under Article 6 concerning his trial in
absentia in the Czech Republic that had been found inadmissible
in the partial decision as to admissibility of 17 February 2009 and
submitted new, belated complaints under Article 6 concerning the
judicial proceedings in Ukraine. The Court considers that the
scope of the case now before it is limited to the complaints which
have been communicated to the parties for observations.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his detention in Ukraine was unlawful. The
Court, master of the characterisation to be given in law to the facts
of the case, decided to examine the problem raised by the applicant
under Article 5 of the Convention, which is the relevant provision
and which provides as follows:
Article 5 § 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:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(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.”
A. Admissibility
- The
Government considered that the applicant had not exhausted domestic
remedies as he had failed to appeal against the decision of 14 April
2006 to the Kyiv Court of Appeal.
- The
applicant maintained that he had exhausted all domestic remedies and
had not been aware of the above decision of 14 April 2006.
- The
Court notes that the Government did not provide the Court with a copy
of the impugned decision and did not comment on the applicant’s
contention that he had not been aware of the above decision. It was
for the Government, raising such objection, to demonstrate that the
applicant could have exhausted the available domestic remedies but
failed to do so. Furthermore, the Court notes that, as is apparent
from the case-file materials, the applicant raised the issue of the
lawfulness of his detention at every stage of the proceedings and
appealed against every relevant appealable decision. The Court
therefore dismisses this objection of the Government.
- The
Court further 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
- Parties’
submissions
(a) The applicant
- The
applicant maintained that his apprehension by the Kyiv COC Department
had been conducted under the arrest warrant issued by the Czech
law-enforcement authorities; however the Code of Criminal Procedure
did not contain provisions on arrest under an arrest warrant
originating from abroad.
- He
further maintained that it was clear that the officers from the Kyiv
Holosyiyvskyy District Police Department had not arrested him and
that he had not committed the administrative offence for which he had
been punished. He considered that his administrative arrest had been
arranged by the authorities to gain some time pending receipt of the
materials. He also noted that in any event his administrative
detention had expired on 2 February 2006 and there had been no
explanation for his detention the next day.
- The
applicant also noted that his detention with a view to extradition
had been unlawful in terms of the relevant instruments, both national
and international, since the Ukrainian Constitution and the Criminal
Code unequivocally excluded the possibility of extraditing Ukrainian
nationals.
- His
detention since 14 March 2006 had been based on Articles 32 and 33 of
the European Convention on the International Validity of Criminal
Judgments and Article 165-2 of the Code of Criminal Procedure.
However, the above Convention was not applicable in relations between
Ukraine and the Czech Republic, given that the latter was not a party
to the Convention.
- The
applicant considered that the whole period of his detention between
28 January and 16 June 2006 had actually been aimed at enforcement of
the judgment rendered in absentia and was therefore contrary
to Article 5 § 1 of the Convention.
- He
finally maintained that the validation of the judgment of the Prague
City Court by the Ukrainian court had been made without sufficient
legal grounds and contrary to the international treaties to which the
courts referred. Furthermore, at no stage of the proceedings was he
able to defend himself and have a proper trial. Therefore, he
considered that his detention since 16 June 2006 had been contrary to
Article 5 § 1 of the Convention.
(b) The Government
- Referring
to the facts, the Government maintained that between 28 and 30
January 2006 the applicant had been detained as a suspect in the
administrative offence proceedings and that his detention had
therefore fallen under Article 5 § 1 (c) of the Convention. From
30 January to 3 February 2006 the applicant’s detention had
fallen under Article 5 § 1 (a) of the Convention as the
applicant had been sentenced to five days’ administrative
detention. From 3 February to 14 March 2006 the applicant had been
detained with a view to extradition and his detention had fallen
under Article 5 § 1 (f) of the Convention. From 14 March to 16
June 2006 the applicant’s detention had fallen under Article 5
§ 1 (a) of the Convention. They concluded that the whole period
of the applicant’s detention since 28 January 2006 had fallen
under one of the permitted exceptions in Article 5 § 1.
- As
to the legal grounds for the applicant’s detention, the
Government referred to the domestic courts’ decisions, to
Article 106 of the Code of Criminal Procedure, to the Convention on
the Transfer of Sentenced Persons and to its Additional Protocol.
2. The Court’s assessment
(a) General principles
- Article
5 of the Convention guarantees the fundamental right to liberty and
security. That right is of primary importance in a “democratic
society” within the meaning of the Convention (see De Wilde,
Ooms and Versyp v. Belgium, 18 June 1971, § 65,
Series A no. 12, and Winterwerp v. the Netherlands,
24 October 1979, § 37, Series A no. 33).
- All
persons are entitled to the protection of that right, that is to say,
not to be deprived, or not to continue to be deprived, of their
liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40,
Series A no. 114), save in accordance with the conditions specified
in paragraph 1 of Article 5. The list of exceptions set out in
Article 5 § 1 is an exhaustive one (see Labita v. Italy
[GC], no. 26772/95, § 170, ECHR 2000-IV, and Quinn v. France,
22 March 1995, § 42, Series A no. 311) and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision, namely to ensure that no one is arbitrarily deprived of
his or her liberty (see Engel and Others v. the Netherlands, 8
June 1976, § 58, Series A no. 22, and Amuur v. France,
25 June 1996, § 42, Reports 1996-III).
- The
Court reiterates that where deprivation of liberty is concerned it is
particularly important that the general principle of legal certainty
be satisfied. It is therefore essential that the conditions for
deprivation of liberty under domestic law be clearly defined and that
the law itself be foreseeable in its application, so that it meets
the standard of “lawfulness” set by the Convention, a
standard which requires that all law be sufficiently precise to allow
the person – if need be, with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Baranowski v.
Poland, no. 28358/95, § 52, ECHR 2000-III).
- The
Court further reiterates that the authorities must also conform to
the requirements imposed by domestic law in the proceedings
concerning detention (see Van der Leer v. the Netherlands, 21
February 1990, §§ 23-24, Series A no. 170-A; Wassink v.
the Netherlands, 27 September 1990, § 27, Series A no.
185-A; and Erkalo v. the Netherlands, 2 September 1998, §
57, 1998-VI).
- 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 domestic law entails a
breach of the Convention, it follows that the Court can, and should,
exercise a certain power of review of such compliance (see Benham
v. the United Kingdom, 10 June 1996, § 41, Reports
1996-III).
(b) Application of the general principles to the
present case
(i) Period from 28 January to 3 February 2006
- The
Court notes that the parties disagreed as to the facts concerning the
applicant’s original arrest and detention between 28 January
and 3 February 2006. However, the applicant’s contention
that he had been apprehended by the Kyiv COC Department under the
international arrest warrant, and only after the administrative
offence proceedings had commenced, appears to be supported by the
official documents. Despite the fact that the administrative
detention following the court’s decision would generally fall
under Article 5 § 1 (a) of the Convention, the Court’s
case-law indicates that it may be necessary to look beyond the
appearances and the language used and concentrate on the realities of
the situation (see Kafkaris v. Cyprus [GC], no. 21906/04,
§ 116, ECHR 2008 ..., with further references). The
Court has already been faced with the situation where administrative
detention, formally falling under Article 5 § 1 (a),
had been used to ensure the availability of a person for other
purpose (see, mutatis mutandis, Doronin v. Ukraine, no.
16505/02, §§ 54-56, 19 February 2009). The Court considers
that the facts of the case strongly suggest that in the present case
the applicant found himself in a similar situation. In the Court’s
view, the above conduct of the domestic authorities is incompatible
with the principle of legal certainty and is arbitrary, and runs
counter to the principle of the rule of law.
- Furthermore,
as the applicant noted, the Government furnished no explanations as
to any grounds for his detention after the administrative detention
expired on 2 February 2006 at 1 p.m. until he was formally arrested
by the Kyiv COC Department on 3 February 2006 at 7.30 p.m.
- The
Court, therefore, concludes that there was a violation of Article 5 §
1 of the Convention during this whole period.
(ii) Period from 3 February to 16 June 2006
- The
Court further notes that the applicant’s detention from
3 February 2006 was ordered with a view to his extradition. On
7 February 2006 the applicant’s detention was ordered
for forty days by the Ukrainian court under the European Convention
on Extradition, although being a Ukrainian national he could not be
extradited, as the domestic legislation excludes, in non-ambiguous
terms, the extradition of Ukrainian nationals (see and compare with a
case against Russia in which similar prohibition on extradition of
nationals exists: Garabayev v. Russia, no. 38411/02,
§§ 88-91, 7 June 2007, ECHR 2007 ...
(extracts)); moreover, Ukraine made a relevant reservation to the
above Convention.
- On
14 March 2006 the same court extended the applicant’s detention
for thirty days under the European Convention on the International
Validity of Criminal Judgments, although at that time the Ministry of
Justice of the Czech Republic had formally lodged a request with its
Ukrainian counterpart to deal with the applicant’s case under
the European Convention on the Transfer of Proceedings in Criminal
Matters. Furthermore, the European Convention on the International
Validity of Criminal Judgments authorised detention for eighteen days
only and could not apply to relations between the two countries as
the Czech Republic had not acceded to it.
- The
Court also points out that the Government furnished no documents to
support their contention that there had been a judicial decision
authorising the applicant’s detention between 14 April 2006 and
the decision of the Kyiv Court of Appeal on 16 June 2006.
- Furthermore,
the Court notes that the Government failed to demonstrate that there
were any legal provisions, whether in the Code of Criminal Procedure
or in any other legislative instrument, that would provide, even by
reference, a procedure for detention with a view to extradition or to
implementation of other international instruments on legal assistance
in criminal matters.
- The
Court considers that the facts of the case demonstrate that the
applicant was detained during the period in question without
sufficient legal basis in the domestic law.
- The
Court, therefore, concludes that there was a violation of Article 5
§ 1 of the Convention during this period too.
(iii) Period since 16 June 2006
- The
Court notes that on 16 June 2006 the Kyiv Court of Appeal, after
examining the case, reclassified the request of the Czech authorities
for transfer of criminal proceedings in the applicant’s case
under the European Convention on the Transfer of Proceedings in
Criminal Matters to a request for enforcement of the judgment of the
Prague City Court of 30 March 2004 under the Convention on the
Transfer of Sentenced Persons and the Protocol thereto, although no
request under this Convention had been made and the provisions of the
Protocol to this Convention were not applicable to persons tried in
absentia. The Supreme Court upheld this decision.
- The
Court is not convinced that such solution chosen by the domestic
courts meets the requirements of foreseeability and lawfulness. The
Court accordingly finds that since 16 June 2006 the applicant has
been detained in breach of Article 5 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered that the amount claimed was exorbitant and had
no causal link with the alleged violation.
- The
Court considers that the applicant suffered non-pecuniary damage on
account of his unlawful detention, damage which cannot be compensated
for by the mere finding of a violation of his Convention rights.
Having regard to the circumstances of the case and ruling on an
equitable basis, as required by Article 41, it awards the applicant
the claimed amount in full.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Ukrainian hryvnias 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.
Done in English, and notified in writing on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
