Strasbourg finds against Ukraine over detention of Igor Koktysh

            Igor Koktysh, a Belarusian youth activist and musician, has been held in custody in the Simferopol SIZO [pre-trial detention centre] for more than 2 years despite repeated calls from human rights groups in Ukraine and Amnesty International to release him.

            On Thursday 10 December the European Court of Human Rights judgment in the case of Koktysh v. Ukraine was announced. The Court held that there would be a violation of Article 3 of the Convention were Koktysh to be extradited to Belarus. It found that there had been a violation of Article 3 of the European Convention [prohibition of torture and ill-treatment] over the conditions of Koktysh’ detention in the ITT [temporary holding facilities] and SIZO, and his transportation. It held also that there had been violations of Article 5 § 1, 5 § 4 and 5 § 5 of the Convention [the right to liberty and personal security], as well as of Article 13 since there had been no effective or accessible remedy in respect of the applicant’s complaints about the conditions of his detention. 

            Igor Koktysh had alleged that in the event of his extradition to Belarus he would face the risk of torture and of an unfair trial, the outcome of which was likely to be the death penalty. He asserted that his detention pending extradition had been unlawful, and that he was not able to challenge his arrest, subsequent detention and the decision on his extradition before the national courts, and that he had no right to compensation for his detention.

Background to the case and the extradition proceedings

In 2001 Koktysh and R. were charged with the murder and robbery of M. On 7 December 2001 the Brestskiy Regional Court of Belarus acquitted them. The Court emphasised that during their interrogations the two had been subjected to physical and psychological pressure and had been forced to confess, and therefore their confessions during the pre-trial investigation could not be taken into consideration.  This decision was upheld on 1 February 2002 by the Supreme Court of Belarus.

On 18 May 2002 these decisions were quashed by the Presidium of the Supreme Court of Belarus under the extraordinary review procedure upon an application (“protest”) lodged by a prosecutor, and the criminal proceedings were resumed.

In June 2002 Koktysh moved to Ukraine, where he was registered by the Zhytomyr passport service. He travelled several times to Poland and married in 2003. Therefore, according to the applicant, he has not been hiding from justice.

On 25 June 2007 he was arrested in Sevastopol, Ukraine. He stated that during his arrest the policemen had fired several shots in order to intimidate him and that he had been subjected to physical and psychological pressure.  Following the order from the Balaklava District Court of Sevastopol in June 2007 to hold him in custody for forty days with a view to his extradition to Belarus, he has remained in custody.

            The European Court of Human Rights judgment clearly demonstrates the faults in Ukrainian legislation which has led to this situation. We learn, for example, that “On 19 May 2008 the Balaklava District Court informed the applicant that his request for release could not be considered as the current legislation did not foresee the possibility of challenging detention pending extradition.

On 3 June and 7 July 2009 the Balaklava District Court rejected the applicant’s further requests for release since the law in force did not foresee the possibility of replacing his detention pending extradition by another non-custodial preventive measure.”

The Court’s assessment

60.  Referring to its findings above, the Court reiterates that, given the Ukrainian court’s decision to detain the applicant pending his extradition, his lengthy detention and the refusals to release him, and in the absence of any formal refusal to extradite the applicant, he can still be regarded at present as running a risk of extradition in view of a criminal case pending against him in Belarus.

61.  The Court notes that in 2001 the applicant was charged with murder and robbery but acquitted by the courts at two instances. In less than four months these decisions were quashed under the extraordinary review procedure by the Presidium of the Supreme Court of Belarus and the case was remitted for fresh consideration. Without pre-judging the merits of the applicant’s complaint under Article 6 of the Convention, the Court notes that in a number of cases a similar procedure has been found not to be in compliance with the guarantees of a fair trial. At present, the criminal proceedings against the applicant are pending anew and one of the charges against him carries the death penalty as a possible punishment.

62.  The Court cannot speculate on the possible outcome of the applicant’s criminal case. However, the mere possibility of the imposition of capital punishment together with the prospect of an unfair trial, given the quashing of a final decision in the applicant’s case, is sufficient in the Court’s view to conclude that such situation generates for the applicant a sufficient anguish and mental suffering to fall within the ambit of Article 3 of the Convention.

63.  The Court further notes that despite the assurances provided by the Belarusian authorities, the international human rights reports show serious problems as regards the international cooperation of the Belarusian authorities in the field of human rights and particularly with respect to the abolition of the death penalty and the Ukrainian Government did not specify how in view of these difficulties they intended to monitor the implementation of the provided assurances.

64.  The Court also notes that both reports of the international and nongovernmental bodies refer to violations of human rights in Belarus and, in particular, to ill-treatment and torture. Although the reference to a general situation concerning human rights observance in a particular country cannot on its own serve a basis for refusal of extradition, there is an evidence in the present case, confirmed by the findings of the Belarusian courts, that the applicant has been already ill-treated by the Belarusian authorities. The Government did not show that the situation in respect to the applicant had changed to the extent which enables any possibility of ill-treatment in the future. Therefore, the Court cannot agree with the Government that the assurances given in the present case would suffice to guarantee against the serious risk of ill-treatment in the event of the applicant’s extradition (see Soldatenko v. Ukraine, cited above, §§ 73-74).

65.  There would be accordingly a violation of Article 3 of the Convention in the event of the applicant’s extradition to Belarus.

67.  The applicant complained that his arrest and detention in Ukraine were contrary to Article 5 of the Convention since his criminal prosecution in Belarus was unlawful. Moreover, the applicant’s detention in Ukraine was not regulated by any law and he could not challenge it. The applicant further complained under Article 13 of the Convention about the absence of effective remedies in this respect.

75.  The Court has previously found violations of Article 5 §§ 1, 4 and 5 of the Convention in cases raising issues similar to those in the present case (see Soldatenko v. Ukraine, cited above, §§ 109-114 and 125-127, and Svetlorusov v. Ukraine, cited above, §§ 47-49, 57-59 and 66-70). Those findings were primarily based on the lack of legal provisions both for the applicants’ detention pending extradition and for regular review of the lawfulness of such detention. The Court also found that Ukrainian law did not afford the applicant an enforceable right to compensation, as required by Article 5 § 5 of the Convention.

76.  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.

77.  There has accordingly been a violation of Article 5 §§ 1, 4 and 5 of the Convention.

i. Material conditions of the applicant’s detention in the ITT

91.  The Government explained the overcrowding in the cells by the fact that at that time the courts of Sevastopol had been considering an extensive number of criminal cases and all persons detained in the ITT had been taking part in their respective criminal proceedings in the courts. The Government further noted that as for other conditions of the applicant’s detention, they did not reach the minimum threshold of severity required by Article 3 of the Convention, as the applicant had been detained in the ITT for the short periods of 10 and 4 days, respectively. The applicant’s situation was not different from the situation of any other person suffering from limitations related to the deprivation of liberty.

92.  The applicant disagreed and pointed out that the conditions of detention in the ITT were found to be appalling by numerous international and domestic observers. He referred to the findings of the CPT and the Ukrainian Commissioner for Human Rights.

93.  The Court notes that it has already found a violation in respect of the conditions of detention in the Sevastopol ITT experienced by the applicant in 2003-2006 in the case of Yakovenko v. Ukraine (no. 15825/06, 25 October 2007). In the present case the applicant stayed in the ITT for 10 and 4 days, respectively, in July-August 2007. Although the applicant and the Government submitted two contradictory descriptions of the material conditions of detention in the ITT, the applicant’s version is corroborated by the subsequent findings of the Ukrainian Commissioner for Human Rights. The Commissioner visited the ITT one year after the applicant had been detained there, and the press release issued after her visit refers to the same conditions of detention as those complained of by the applicant. Furthermore, the Government have failed to adduce any evidence in support of their description of the conditions of detention in the ITT. They also refrained from commenting on the applicant’s allegations that he had suffered from his co-detainees’ constant smoking.

94.  The Court further notes that the problem of overcrowding in the Sevastopol ITT was indicated by the CPT as early as in 2000. It was further confirmed by the findings of this Court in the Yakovenko case, and, according to the press release issued by the Ukrainian Commissioner for Human Rights, the overcrowding remained a problem in mid-2008. The Government have also failed to comment on the applicant’s allegations that the detainees had to sleep in turns and, given the size of the cell and the number of persons detained, the Court has no reason to doubt the applicant’s submissions. In such circumstances the lack of sleeping places makes the effect of overcrowding in the applicant’s case even more harmful.

95.  Therefore, the Court finds that the overall conditions of the applicant’s detention in the ITT, even during relatively short periods of time, amount to inhuman and degrading treatment and are in violation of Article 3 of the Convention.

ii. Material conditions of the applicant’s detention in the SIZO

96.  The Government submitted that the conditions of the applicant’s detention in the SIZO were adequate and did not reach the threshold required by Article 3 of the Convention. In support of their statements, the Government submitted a document, certified by the SIZO Governor, which contained a description of the cells in which the applicant had been detained. In particular, the document says that in every cell there was a 120x40 centimetre window, with natural and artificial lighting and ventilation.

97.  The applicant contested these submissions. He repeated his previous complaints that he had been able to wash only once a week and sometimes even more rarely. The applicant further indicated that the Government had provided only general information about the conditions of detention but had not shown that the ventilation had been functioning and that the lighting had been sufficient.

98.  The Court notes that the Government’s observations did not provide much substantiation in support of their statement that the ventilation and lighting in the applicant’s cells were sufficient. Moreover, the Government failed to comment on the applicant’s allegation that all of the detainees had constantly smoked, which had caused the applicant additional suffering as he had bronchial asthma. Given that, in the case of allegations about inadequate conditions of detention, the Government are in a better position to obtain evidence in support of their views (see Yakovenko v. Ukraine, cited above, § 106), the Court is of the opinion that in the circumstances of the present case the Government have failed to substantiate their statements.

99.  In respect of the applicant’s allegations about overcrowding in the Simferopol SIZO, the Court notes that, according to the information submitted by the Government, at any given time there was from 1.47 to 3.25 sq. m of space per inmate in the applicant’s cell. The Court recalls that the CPT has set 7 sq.m. per prisoner as an approximate, desirable guideline for a detention cell (see the 2nd General Report - CPT/Inf (92) 3, § 43).

100.  The Court refers to its findings in the Kalashnikov v. Russia case (no. 47095/99, ECHR 2002‑VI...) and finds that there has been a violation in respect of the conditions of the applicant’s detention in the Simferopol SIZO.

iii. Medical assistance to the applicant

101.  The Government stated that the applicant had not complained about his health problems while staying in the ITT and had been provided with adequate treatment in the SIZO.

102.  The applicant disagreed and submitted that all necessary medication had been provided to him by his wife.

103.  The Court notes that the applicant’s submissions in this respect are limited to a general statement that he is suffering from bronchial asthma. He did not submit any particular details as to the severity and frequency of the symptoms. It follows from the medical file submitted by the Government that the applicant was regularly checked in the SIZO and provided with some treatment, which the Court is not in a position to question, given the absence of any indication that the applicant’s health significantly deteriorated either while staying in the ITT or in the SIZO. In such circumstances, the Court finds that there has been no violation of Article 3 of the Convention in respect of the applicant’s medical treatment during his detention.

iv. Conditions of transportation

104.  For the Government, in the absence of any complaints on the national level about the conditions of transportation from and to the SIZO, the burden of proof in respect of these complaints lay with the applicant. The Government further stated that the conditions of the applicant’s transportation complied with the national law requirements and did not reach the level of severity required for Article 3 of the Convention to apply.

105.  The applicant reiterated his previous submissions and referred to the findings of the CPT in support of his complaints.

106.  The Court reiterates its position that it is for the respondent Government to substantiate their allegations as in the particular circumstances of a given case they are in a better position to furnish all necessary evidence (see paragraph 98 above). The Court notes that the Government’s submissions in this respect are quite vague and refer only to the number of places available in the vehicles or railway carriages without proving any further details about the available space per person and other conditions of transportation (available facilities, lighting, ventilation, etc.).

107.  The Court notes that the applicant was transported on three occasions a distance of 70 kilometres. The Court further notes that the applicant’s allegations are confirmed by the findings of the CPT, the Ukrainian Commissioner for Human Rights and by the Court’s own findings in the Yakovenko case (cited above).

108.  Therefore, the Court finds that there has been a violation of Article 3 of the Convention in respect of the conditions of the applicant’s transportation.

2. Article 13 of the Convention

109.  The Government referred to their observations on the admissibility of the applicant’s complaints under Article 3 of the Convention.

110.  The Court points out that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI).

111.  The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law.

112.  Taking into account its earlier considerations as to the exhaustion of domestic remedies (paragraphs 85-87 above) as well as its previous case‑law on the matter (see Melnik, cited above, § 115, and Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006), the Court finds that there was no effective or accessible remedy in respect of the applicant’s complaints about the conditions of his detention. There has therefore been a violation of Article 13 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the applicant’s complaint under Article 3 of the Convention about the alleged ill-treatment at the time of the applicant’s arrest inadmissible and the remainder of the application admissible;

2.  Holds that there would be a violation of Article 3 of the Convention in the event of the applicant’s extradition to Belarus;

3.  Holds that there is no need to examine the complaints concerning the applicant’s extradition under Articles 2 and 6 of the Convention;

4.  Holds that there has been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in the ITT and the SIZO;

5.  Holds that there has been no violation of Article 3 of the Convention in respect of the applicant’s medical treatment in detention;

6.  Holds that there has been a violation of Article 3 of the Convention in respect of the conditions of the applicant’s transportation;

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

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

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

10. Holds that there has been a violation of Article 13 of the Convention in respect of the applicant’s complaints under Article 3 of the Convention about his conditions of detention.

The full judgment can be found at www.echr.coe.int