Belarusian national wins case in Strasbourg against Ukraine

The European Court of Human Rights has found that Ukraine violated Article 5 §§ 1 (c) and (f), 4 of the European Convention (the right to liberty and personal security) with respect to Belarusian national Oleg Kamyshev.  Mr Kamyshev, who has official second category disabled status, was held in detention pending extradition for 3 months.

Mr Kamyshev was represented by Arkady Bushchenko and the case was supported by the Ukrainian Helsinki Human Rights Union Strategic Litigations Fund.  This is only one of many cases where people have been held in detention, sometimes for much longer periods, because of faults in Ukrainian procedure and legislation on extradition. The Court’s judgment confirms that one cannot keep a person in custody where there is no clear procedure for such, and that in Ukraine there is no such legislation.

The case in full can be found at www.echr.coe.int  The following are only the main details.

In the case of Kamyshev v. Ukraine (no. 3990/06) , 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.

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1960.

6.  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.”

7.  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.

8.  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.

9.  In the beginning of 2005 the applicant obtained a residence permit from the Ukrainian authorities.

10.  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

11.  On 7 July 2005 the Belarusian authorities issued an international arrest warrant.

12.  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”).

13.  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.

14.  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.

15.  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.

16.  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.

17.  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.

18.  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.

19.  On 22 August 2005, due to refurbishment of the Zhytomyr ITU, the applicant was transferred to the Chernyakhivsky ITU

20.  On 23 August 2005 the GPO suspended the extradition, in view of the proceedings pending before the Pechersky District Court.

21.  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.

22.  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.

23.  By 8 September 2005 the applicant was released. He remained in hospital until 13 October 2005 but was no longer guarded by the police.

24.  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”).

25.   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.

26.  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.

VI.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

61.  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:

A.  Admissibility

62.  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).

63.  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).

64.  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.

65.  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

66.  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).

67.  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.

68.  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.