Strasbourg: Ukraine must not extradite Soldatenko

The European Court of Human Rights has found that Ukraine’s extradition of Nikolai Soldatenko to Turkmenistan would be in violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. It also found that there had been a violation of Article 13 (right to an effective remedy) and of Article 5 §§ 1 (f) and 4 (right to liberty and security).

Nikolai Soldatenko, was born in 1961 and is currently detained in a penitentiary institution in the Kherson region (Ukraine), awaiting his extradition to Turkmenistan.

On 7 July 1999 an indictment was issued against him in Turkmenistan on charges of inflicting light and grievous bodily harm and his arrest was ordered. In October 1999 he left Turkmenistan, allegedly to flee persecution to which he had been subjected on ethnic grounds. Since then he has resided in Ukraine.

On 4 January 2007 he was arrested by the Ukrainian police and his relatives were subsequently informed that his arrest had been made in accordance with an international search warrant. Four days later he was brought by the police before a judge of the Kakhovsky District Court of the Kherson Region, who ordered his detention pending the extradition proceedings against him.

On 15 January 2007 the applicant asked the European Court of Human Rights to adopt an interim measure under Rule 39 of the Rules of Court in his case. On 16 January 2007 the President of the competent Chamber granted this request and indicated to the Ukrainian Government that the applicant should not be extradited to Turkmenistan pending the Court’s decision.

On 19 January 2007 the General Prosecutor’s Office of Turkmenistan requested the applicant’s extradition with a view to his prosecution for the offences with which he was charged. It also gave certain assurances and affirmed that he would never be discriminated against on the grounds of social status, race, ethnic origin or religious beliefs.

In a letter of 19 April 2007 the First Deputy Prosecutor General of Turkmenistan, in reply to the request from the Ukrainian General Prosecutor’s Office, gave further assurances, notably that the applicant’s rights under Articles 3 and 6 of the European Convention would be guaranteed.

Mr Soldatenko complained that, if extradited, he would face a risk of being subjected to torture and inhuman or degrading treatment by the Turkmen law-enforcement authorities. He relied on Articles 3 (prohibition of inhuman or degrading treatment), 13 (right to an effective remedy), 5 (right to liberty and security) and 6 (right to a fair trial).

Decision of the Court

Article 3

The Court noted the existence of numerous and consistent credible reports of torture, routine beatings and use of force against criminal suspects by the Turkmen law-enforcement authorities. There were reports of beatings of those who required medical help and denial of medical assistance. According to the Report of the United Nations Secretary-General, torture was also used as a punishment for persons who had already confessed. Reports equally noted very poor prison conditions, including overcrowding, poor nutrition and untreated diseases. It appeared from different reports that allegations of torture and ill-treatment were not investigated by the competent Turkmen authorities.

On the other hand, there was no evidence in the available materials that the criminal suspects of non-Turkmen origin were treated differently from the ethnic Turkmens.

Nevertheless it was clear from the available materials that any criminal suspect held in custody ran a serious risk of being subjected to torture or inhuman or degrading treatment. Despite the fact that the applicant was wanted for a relatively minor offence which was not politically motivated, the mere fact of being detained as a criminal suspect in such a situation provided sufficient grounds to fear that he would be at serious risk of being subjected to treatment contrary to Article 3 of the Convention.

With regard to the assurances given, it was not established that the officials concerned had been empowered to make such undertakings on behalf of the State. Furthermore, given the lack of an effective system of torture prevention, it would be difficult to see whether such assurances were respected. Finally, the international human rights reports had also showed serious problems as regards the international cooperation of the Turkmen authorities in the field of human rights and categorical denials of human rights violations despite the consistent information from both intergovernmental and nongovernmental sources.

In the light of these different considerations, taken together, the Court was satisfied that the applicant’s extradition to Turkmenistan would be in violation of Article 3.

Article 13

The Court concluded that the applicant had not had an effective domestic remedy by which he could challenge his extradition on the ground of the risk of ill-treatment on return, in violation of Article 13.

Article 5 § 1 (f)

The Court found that Ukrainian legislation did not provide for a procedure that was sufficiently accessible, precise and foreseeable in its application to avoid the risk of arbitrary detention pending extradition. There had accordingly been a violation of Article 5 § 1 (f).

Article 5 § 4

The Court referred to its findings under Article 5 § 1 about the lack of legal provisions governing the procedure for detention in Ukraine pending extradition. These findings were equally pertinent to the applicant’s complaint under Article 5 § 4, as the Government had failed to demonstrate that the applicant had at his disposal any procedure through which the lawfulness of his detention could have been examined by a court. The Court accordingly concluded that there had also been a violation of Article 5 § 4.

Article 6

Having no reasons to doubt that the respondent Government would comply with the present judgment, it considered that it was not necessary to decide the hypothetical question whether, in the event of extradition to Turkmenistan, there would also be a violation of Article 6.

The full account can be found at: http://echr.coe.int/ECHR/EN/Header/Press/Press/Introduction/