Communicated on 12 January 2016
FIFTH SECTION
Application no. 40962/13
Mekhmet Takhir Dino BAZ
against Ukraine
lodged on 15 June 2013
STATEMENT OF FACTS
The applicant, Mr Mekhmet Takhir Dino Baz, is a Turkish national who was born in 1976 and lives in Odessa.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In September 1998 the applicant left Turkey for an unspecified country. In 2004 he arrived in Ukraine and two years later he married a Ukrainian national. The couple had two children, born in 2008 and 2010.
1. Asylum proceedings
On 23 March 2011 the applicant was granted refugee status in Ukraine.
On 18 October 2012 the State Migration Service withdrew his refugee status on the grounds that he had provided false information. The applicant had stated that he had been persecuted in Turkey on political grounds, concealing the fact that he had been wanted by the law-enforcement authorities on suspicion of a criminal offence.
The Ukrainian courts at three levels of jurisdiction rejected the applicant’s administrative claim in that regard. The final decision was handed down by the Higher Administrative Court on 3 April 2013.
Meanwhile, on 14 March 2013 the applicant applied to the immigration authorities for subsidiary protection.
On 13 August 2013 the Kharkiv regional department of the State Migration Service rejected his request for leave to lodge the application in question on the grounds that his refugee status had been withdrawn.
On 27 February 2014 the Odessa District Administrative Court quashed that decision following an administrative claim by the applicant and directed the immigration authorities to examine his application for subsidiary protection on the merits.
The migration service appealed.
It appears from the case file that the appellate court scheduled a hearing for 3 June 2014 to examine the appeal, but there is no information on subsequent developments.
2. Criminal proceedings against the applicant in Ukraine
On 25 September 2012 the applicant was detained in Ukraine on suspicion of using documents he knew to be forged (no further details are available in the case file). On an unspecified date he was released, subject to an undertaking not to abscond.
On 14 March 2013 the Leninskyy District Court of Kharkiv (“the Leninskyy Court”) found the applicant guilty of the charge and sentenced him to two months’ imprisonment. The undertaking not to abscond remained in place as a preventive measure pending the judgment becoming final.
The applicant appealed. There is no information in the case file on the outcome of those proceedings.
3. Extradition proceedings and the applicant’s detention with a view to his extradition
On 20 June 2011 the Istanbul 13th Higher Criminal Court (“the Istanbul Court”) issued a warrant for the applicant’s arrest on suspicion of participation in terrorist and separatist activities on 5 August 1998.
On 3 October 2012 the Istanbul Court sent a request to “the authorised judicial authorities of Ukraine” seeking the applicant’s extradition to Turkey in connection with the criminal proceedings against him. As noted in the request, the criminal charge in question was to become time-barred on 15 August 2013. The Turkish court assured the Ukrainian authorities that the applicant’s rights and freedoms under the Convention would be respected.
On 14 November 2012 the applicant was detained by the State Security Service of Ukraine with a view to his extradition.
On 15 November 2012 the Mykolayiv regional department of the State Migration Service informed the State Security Service that the applicant had not applied for Ukrainian nationality.
On 16 November 2012 the Tsentralnyy District Court of Mykolayiv (“the Tsentralnyy Court”), following an application from the prosecution authorities, remanded the applicant in custody pending his extradition, but for no longer than eighteen months.
On 11 March 2013 the Kharkiv regional prosecutor applied to the Zhovtnevyy District Court of Kharkiv (“the Zhovtnevyy Court”) to approve the applicant’s continued detention, in accordance with Article 584 of the new Code of Criminal Procedure (see “Relevant domestic law” below). The prosecutor applied to the Zhovtnevyy Court because the applicant had by that time been transferred from Mykolayiv to Kharkiv in the context of his trial in Ukraine (see above).
On 16 May 2013 the Zhovtnevyy Court approved the applicant’s continued detention, pending his extradition to Turkey.
The applicant appealed. He submitted that the court had not verified whether the extradition request had been made by the competent Turkish authorities or whether it had been sent to the competent Ukrainian authorities. The applicant also complained that the case file had contained no description of the criminal offence he was accused of or any information that he had been duly served with notice that he was a suspect. Furthermore, he alleged that no assessment had been made of his statement that his extradition had in fact been requested with a view to his being persecuted on political and ethnic grounds, which should have warranted its refusal by the Ukrainian authorities. The applicant also complained that the Zhovtnevyy Court had referred to the judgment of the Leninskyy Court of 14 March 2013 against him, although it had not become final. He also contended that there had been no analysis of his health and family situation. The applicant observed that the documents enclosed with the extradition request had only been photocopies and had lacked any official stamps. Lastly, he complained that no Turkish or Kurdish interpreter had been provided for him.
On 30 May 2013 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) allowed the applicant’s appeal in part. As a result, it quashed the ruling of 16 May 2013 and remitted the case to the Zhovtnevyy Court for fresh examination. The appellate court noted that although all the arguments raised by the applicant in his appeal had been advanced before the investigating judge previously, none of them had been examined or received any response. In fact, the Zhovtnevyy Court had merely reiterated the reasoning of the prosecutor.
On 17 June 2013 the Istanbul Court issued another warrant for the applicant’s arrest on the same criminal charge as before.
On 17 July 2013 the investigating judge of the Zhovtnevyy Court again examined the prosecutor’s application and decided that the applicant’s continued detention was justified. The judge referred to the two arrest warrants and the extradition request issued by the Istanbul Court. The Kharkiv regional prosecutor’s office had received the documents in question from the Ministry of Justice of Ukraine. Furthermore, the prosecution authorities had carried out an extradition inquiry (екстрадиційна перевірка) and had concluded that there were no impediments to the applicant’s extradition. The judge also noted the applicant’s conviction by the judgment of 14 March 2013, but specified that it had not yet become final. Lastly, reference was made to a medical certificate issued by doctors at the pre-trial detention centre (SIZO), which stated that the applicant’s health was satisfactory.
On 1 August 2013 the Court of Appeal rejected the applicant’s request for leave to appeal. It noted that the decision of 17 July 2013 was not amenable to appeal and that the indication to the contrary therein had been a mistake.
The applicant complained to the Zhovtnevyy Court that there were no grounds for his continued detention and requested to be released.
On 30 August 2013 the Zhovtnevyy Court allowed his request and released him. It noted that, under Article 590 § 4 of the Code of Criminal Procedure, no decision on a person’s extradition could be taken if that person had applied for refugee status or had sought subsidiary protection, and where there was no final decision in that regard. The Ministry of Justice of Ukraine had not taken any decision on the Turkish authorities’ request for the applicant’s extradition. Furthermore, such a decision could not be taken until the completion of the asylum proceedings. In addition, the limitation period in respect of the criminal offences of which the applicant was accused had expired on 15 August 2013. The judge referred in this connection to Article 10 of the European Convention on Extradition, pursuant to which extradition could not be granted in such circumstances (see “Relevant international material” below).
On 23 September 2013 the Ministry of Justice of Ukraine rejected the extradition request of 3 October 2012.
B. Relevant domestic law
1. Law on refugees and persons requiring subsidiary or temporary protection (enacted on 4 August 2011)
This law repealed the previous Law on Refugees, of 21 June 2001, which did not provide for subsidiary or temporary protection. Section 1(13) of the new Law defines subsidiary protection as protection afforded to a person who does not qualify as a refugee, but who requires protection because he or she has been forced to go to Ukraine or remain there as a result of threats to his or her life, safety or liberty existing in his or her country of origin owing to fears of the death penalty, torture, or inhuman or degrading treatment or punishment.
2. Code of Criminal Procedure 1960 (repealed with effect from 19 November 2012)
The relevant provisions are quoted in the Court’s judgment in Molotchko v. Ukraine (no. 12275/10, § 91, 26 April 2012).
3. Code of Criminal Procedure 2012 (enacted on 19 November 2012)
Article 541 provides definitions of terms used in the Code in the context of international cooperation on criminal matters. In accordance with this provision, the extradition procedure includes: the submission of an official request to establish the whereabouts of the person to be extradited on the territory of the requested State; the submission of an official request for the extradition of such a person; an inquiry into any circumstances which might prevent extradition; the adoption of a decision on the extradition request; and the surrender of the person to the requesting State.
The same Article defines “extradition arrest” (екстрадиційний арешт) as placing a person in detention to ensure his or her extradition.
Article 548 § 5 provides that a competent central authority of Ukraine may consider a request for international cooperation which is submitted by fax, email or other means of communication. A measure in respect of such a request may only be taken upon confirmation of the posting or submission of the original request.
Article 584 provides that a request to detain a person pending extradition should be submitted by a prosecutor after the receipt of an extradition request from the competent authority of a foreign State. The prosecutor is obliged to submit a copy of the extradition request certified by a central Ukrainian authority, documents pertaining to the person’s citizenship and the available materials of the extradition inquiry (§§ 1 and 2). The detention pending extradition is applied for the period necessary to take a decision on the person’s extradition and for the extradition itself; however, it cannot exceed twelve months (§ 10). During this period, and not less than once every two months, the investigating judge shall examine, at the request of the prosecutor, whether there are grounds for keeping the person in detention or for his or her release (§ 11). If there is a complaint by a detainee or his or her lawyer, the investigating judge must check whether there are any grounds for the person’s release (§ 12), but this cannot happen more than once a month,
Article 589 sets out the grounds for rejecting an extradition request. One of them is the expiry of the limitation period under Ukrainian legislation for the criminal offences for which a person’s extradition has been requested (§ 1 (3)). Furthermore, extradition of a refugee or a person under subsidiary or temporary protection is prohibited (§ 2).
Under Article 590 § 4, no decision on a person’s extradition can be taken if that person has applied for refugee status or has sought subsidiary protection and there has been no final decision in that regard.
C. Relevant international material
The European Convention on Extradition (1957), which entered into force in respect of Ukraine on 9 June 1998, reads as follows:
Article 10 – Lapse of time
“Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.”
COMPLAINT
The applicant complains under Article 5 § 1 (f) of the Convention that his detention pending his extradition was unlawful.
QUESTION TO THE PARTIES
Was the applicant’s detention lawful, within the meaning of Article 5 § 1 (f) of the Convention?
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