FIFTH SECTION
CASE OF KHAMROEV AND OTHERS v. UKRAINE
(Application no. 41651/10)
JUDGMENT
STRASBOURG
15 September 2016
FINAL
15/12/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Khamroev and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Síofra O’Leary,
Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 23 August 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 41651/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 July 2010 by:
- Mr Umid Nematovich Khamroev, who was born in 1976 and lives in Sweden (“the first applicant”),
- Mr Kosim Dzhurayevich Dadakhanov, who was born in 1966 and lives in Ukraine (“the second applicant”),
- Mr Utkir Uktamovich Akramov, who was born in 1985 and lives in the United States of America (“the third applicant”), and
- Mr Shodilbek Solizhonovich Soibzhonov, who was born in 1970 and lives in Ukraine (“the fourth applicant”).
The first and third applicants are Uzbek nationals and the fourth applicant is a Russian national. In his application form, the second applicant claimed to be a Russian national, but the Ukrainian authorities established that he had been deprived of that nationality in 2008 and in general referred to him as an Uzbek national.
2. The applicants, who had been granted legal aid, were represented by Ms G. Bocheva, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.
3. The applicants alleged, in particular, that their detention in Ukraine had been in breach of Article 5 § 1 of the Convention.
4. On 26 July 2010 the President of the Chamber indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that the applicants should not be removed to Uzbekistan. On 23 August 2010 the President of the Chamber decided to discontinue the application of that interim measure.
5. On 27 May 2013 the above complaints of the first three applicants were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. On various dates, criminal proceedings were instituted against the applicants in Uzbekistan on suspicion of sedition; of creating, leading and of being members of a religious fundamentalist, extremist, separatist or other prohibited organisation; and, in respect of the first applicant, of the distribution of material threatening public order and causing incitement to ethnic or religious hatred.
7. Orders for their arrest were issued by the Uzbek authorities and they were placed on an international list of wanted persons.
8. They left Uzbekistan on various dates and eventually arrived in Ukraine.
A. The first three applicants
1. The first applicant’s detention and application for asylum in Ukraine
9. On 3 April 2009 the Ukrainian migration authorities dismissed the first applicant’s asylum application as being groundless. The applicant appealed.
10. On 15 June 2010 the first applicant was arrested by the Ukrainian police as a person appearing on the international list of wanted persons.
11. On 16 June 2010 the police applied to the Irpin Town Court (“the Town Court”) for the applicant’s arrest under provisions of the Code of Criminal Procedure concerning arrest of people suspected of criminal offences in Ukraine.
12. On 17 June 2010 amendments to the Code of Criminal Procedure concerning extradition and detention pending extradition came into force (see paragraph 59 below).
13. On the same day, the Town Court extended the applicant’s detention by up to ten days, considering that additional information was needed about his personal situation. It relied on legislation applicable to persons charged with criminal offences in Ukraine and did not refer to the new provisions of the Code concerning extradition.
14. On 24 June 2010 the Town Court, acting under the amended provisions of the Code of Criminal Procedure concerning extradition, issued an order for the applicant’s provisional arrest for forty days, pending the receipt of an extradition request from the Uzbek authorities. On 30 June 2010 the Kyiv Regional Court of Appeal upheld that order.
15. On 23 July 2010 the Kyiv Shevchenkivsky District Court (“the Shevchenkivsky Court”), upon an application by the General Prosecutor’s Office of Ukraine (“the GPO”), ordered the applicant’s arrest pending extradition, for a period not to exceed eighteen months, until the extradition proceedings had been completed. On 9 August 2010 the Kyiv City Court of Appeal upheld that order.
16. On 21 June 2011 the Kyiv Administrative Court of Appeal quashed the migration authorities’ decision of 3 April 2009 and ordered that the applicant’s request for asylum be reconsidered.
17. On 24 January 2012 the first applicant was released.
2. The second applicant’s detention and application for asylum in Ukraine
18. On 14 December 2009 the UNHCR recognised the second applicant as a refugee under its mandate.
19. On 23 December 2009 the migration authorities dismissed the second applicant’s application for asylum in Ukraine as being groundless.
20. On 29 June 2010 the second applicant was arrested by the Ukrainian police as a person appearing on the international list of wanted persons.
21. On 2 July 2010 the Bila Tserkva Court ordered the applicant’s provisional arrest for up to thirty days, until the receipt of an extradition request.
22. On 28 July 2010 the UNHCR issued a certificate stating that it had recognised the applicant as a refugee. On 29 July 2010 the applicant lodged that certificate, together with his objections to the detention request, with the Shevchenkivsky Court.
23. On 29 July 2010 the Shevchenkivsky Court ordered the applicant’s detention pending extradition for up to eighteen months, until the extradition proceedings had been completed. On 9 August 2010 the Kyiv City Court of Appeal upheld that order.
24. On 25 June 2011 the Kyiv Circuit Administrative Court quashed the migration authorities’ decision of 23 December 2009 and ordered them to re-examine the applicant’s application.
25. On 29 January 2012 the applicant was released.
3. The third applicant’s detention and application for asylum in Ukraine
26. On 4 November 2009 the migration authorities dismissed the third applicant’s application for asylum in Ukraine as being groundless. The applicant appealed.
27. According to police records, at 9.30 p.m. on 8 July 2010 the third applicant was arrested by the Ukrainian police as a person appearing on the international list of wanted persons.
28. On 10 July 2010 the police requested that the Kyiv-Svyatoshyn District Court (“the Kyiv-Svyatoshyn Court”) place the applicant under provisional arrest pending receipt of an extradition request from Uzbekistan.
29. In his submissions to the Kyiv-Svyatoshyn Court, the applicant opposed the police request on the grounds, in particular, that the proceedings concerning his request for asylum were still pending. In his submissions he stated that he had been arrested at 2 p.m. on 9 July 2010 and did not make any complaint in that regard.
30. On 12 July 2010 the Kyiv-Svyatoshyn Court ordered the applicant’s provisional arrest for up to thirty days, until the receipt of an extradition request.
31. On 19 July 2010 the Kyiv Regional Court of Appeal quashed the order of 12 July 2010 and remitted the request for provisional arrest to the first-instance court for fresh examination. The Court of Appeal held, in particular, that the first-instance court had failed to examine in detail the applicant’s personal situation and whether there were obstacles to his extradition.
32. On 3 August 2010 the Kyiv-Svyatoshyn Court ordered the applicant’s provisional arrest for up to forty days. It held that his arguments concerning an alleged risk of ill-treatment in Uzbekistan had to be examined within the framework of the proceedings for extradition.
33. On the same day, the police lodged a request for the applicant’s detention pending extradition, based on an extradition request which had arrived in the meantime (see paragraph 37 below).
34. On 4 August 2010 the Shevchenkivsky Court ordered the applicant’s detention for up to eighteen months, until the extradition proceedings had been completed. On 12 August 2010 the Kyiv City Court of Appeal upheld that order.
35. According to the Government, on 14 July 2011 the Kyiv Circuit Administrative Court upheld the migration authorities’ decision of 4 November 2009.
36. On 6 February 2012 the applicant was released.
4. Extradition inquiry in respect of the first three applicants and applications for asylum in Sweden and the United States of America
37. On 9 July 2010 the GPO received formal requests from the Uzbek authorities for the first and third applicant’s extradition and on 27 July 2010 received a similar request concerning the second applicant. The GPO asked the Kyiv regional prosecutor’s office to conduct an extradition inquiry into the applicants’ cases.
38. On 10 July 2010 the GPO asked the Security Service and the Ministry of Foreign Affairs for information about the first applicant, in particular whether he was being persecuted by the Uzbek authorities owing to political or religious activities. On 29 and 14 July 2010 similar requests were sent concerning the second and third applicants.
39. On the same dates, the GPO asked the Uzbek authorities to provide more detailed information about the acts of which the applicants were suspected and for assurances concerning the applicants’ treatment if they were extradited.
40. On 3 August 2010 the Security Service informed the GPO that it had no information concerning the details of the first and third applicants’ activities in Uzbekistan.
41. On 24 August, and 2 and 6 September 2010 the Uzbek authorities provided the assurances requested by the GPO in respect of the third, second and first applicants respectively.
42. On 24 August and 16 November 2010 the GPO, in response to its previous request, received copies of documents from the Uzbek authorities describing the nature of the charges against the third and first applicants in Uzbekistan.
43. On 14 October 2010 the Ambassador of the United States of America (“the US”) to Ukraine asked the GPO to facilitate a visit to the detained Uzbek nationals on 15 and 21 October 2010 by representatives of the US Department of Homeland Security for interviews as part of the process of examining their requests for asylum in the US.
44. According to the second applicant, on 1 October 2010 the Ministry of Foreign Affairs responded to the GPO’s request for information.
45. On 22 November 2010 the GPO received the reports of the Kyiv regional prosecutor’s office on the results of its extradition inquiries concerning the applicants. The reports recommended that the applicants’ extradition be refused, pursuant to paragraph 4 of Article 466 of the Code of Criminal Procedure which provides that extradition can be refused where “the competent authority of the foreign State has not provided, at the request of the central authority, additional materials or data, without which a decision on the extradition request may not be taken”.
46. On 8 April 2011 the GPO wrote to the US Embassy. It referred to the visit of the US officials to the first and third applicant and to information provided to the GPO by the second applicant’s lawyer that his application for asylum was pending before the US authorities. The GPO asked the Embassy to inform it of any progress in examining the applicants’ requests for asylum.
47. On 5 July and 2 September 2011 the GPO again requested information from the US Embassy, indicating that no response to its previous requests had been received.
48. On 18 October 2011 the US Embassy informed the GPO that members of its staff needed to visit the first and third applicants in order to finalise their asylum applications and take their fingerprints. It requested assistance in arranging such a visit.
49. On 16 December 2011 the UNHCR informed the GPO that it had recognised the first three applicants as refugees under its mandate and invited the GPO to give due weight to this decision in examining Uzbekistan’s extradition requests. It further stated that the US authorities were in the process of examining the first and third applicants’ requests for asylum. The UNHCR added that it could not facilitate the second applicant’s resettlement because he was in a polygamous marriage.
50. On 23 January 2012 the UNHCR informed the GPO that the first applicant had been granted asylum in Sweden.
51. On 10 and 20 February 2012 the GPO decided not to extradite the third and first applicants to Uzbekistan in view of the fact that they had been granted asylum in the US and Sweden respectively. The GPO also observed that the information originally submitted by the Uzbek authorities in support of their requests for extradition had been insufficient and that the Uzbek authorities had not remedied that, despite the GPO’s requests. The GPO considered that that too constituted an obstacle to the applicants’ extradition to Uzbekistan.
52. The parties did not inform the Court of any final decision concerning the second applicant’s extradition. As of the date of the submission of the applicants’ observations in reply to those of the Government, that is 9 December 2013, no such decision had been made.
B. The fourth applicant
53. On 2 July 2010 the applicant was arrested by the Ukrainian police. He was released on the same day but re-arrested on 6 July 2010.
54. On 9 July 2010 the Bila Tserkva District Court ordered his provisional arrest for up to thirty days.
55. On 5 August 2010 the applicant was released as no extradition request had arrived by that date.
56. On 16 August 2010 the GPO received an extradition request from the Uzbek authorities.
57. On 7 October 2010 the GPO decided to refuse extradition on the grounds that the offence with which he had been charged under Uzbek law, namely creating, leading and being a member of a religious fundamentalist, extremist, separatist or other prohibited organisation, were not offences under Ukrainian criminal law.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure 1960 (in force until 19 November 2012)
58. The relevant provisions of the Code as they stood before 17 June 2010 are summarised in Soldatenko v. Ukraine (no. 2440/07, §§ 26-29, 23 October 2008).
59. Article 106 of the Code provides for powers of the bodies of inquiry, most notably police, to arrest persons suspected of criminal offences for up to seventy-two hours.
60. Following amendments adopted on 21 May 2010, and which came into effect on 17 June 2010, a new chapter dedicated to the question of extradition was added to the Code. The relevant provisions of the amended Code read as follows:
Article 450. Definitions
“...
An extradition inquiry [shall encompass] activities carried out by bodies determined by law in order to establish and examine circumstances which, as defined by an international treaty to which Ukraine is a party or by any other legislative act,, are capable of preventing the extradition of a person who has committed a crime.
Arrest pending extradition [shall mean] placing a person in detention to ensure his or her extradition.
Provisional arrest [shall mean] detaining a person who has been arrested on suspicion of having committed a crime outside Ukraine for a period determined by this Code or by an international treaty to which Ukraine is a party, until receipt of an extradition request.”
Article 452. Central authorities concerning extradition
“...
The General Prosecutor’s Office shall be the central authority concerning the extradition of an accused person (a suspect) where the proceedings [in the foreign State] are at the stage of pre-trial investigations.
...”
Article 461. Specifics of arrest of a person who has committed a crime outside Ukraine
“Arrest in Ukraine of a person who is wanted by a foreign State in connection with the commission of a crime shall be carried out by a body of inquiry.
...
The arrested person shall be released immediately if:
1) within seventy-two hours of the arrest he or she has not been served with a reasoned decision of a court on the application of provisional arrest or arrest pending extradition;
2) it has been established that there are circumstances under which the extradition may not be carried out.
...
The procedure for the arrest of such persons and for the examination of complaints about their arrest shall be governed by Article 106 of this Code, taking into account the specific provisions envisaged by this Chapter.”
Article 462. Provisional arrest
“A person who has been arrested and who has committed a crime abroad is placed under provisional arrest for 40 days or any other period set forth in an international treaty to which Ukraine is a party, until receipt of an extradition request.
A person who has been arrested shall be released immediately if the maximum period of provisional arrest has expired but no extradition request has arrived.
The body of inquiry which arrested the person, with the consent of a prosecutor, or a prosecutor, shall lodge an application for provisional arrest.
...
The application must be examined within seventy-two hours of the person’s arrest.
....
A person who has been arrested, or his or her representative, may appeal against the order placing the person under provisional arrest within three days of delivery of the order. The order shall remain in effect pending the appeal. Any ruling of the appellate court shall be final and not subject to further appeal.
...”
Article 463. Arrest pending extradition
“Upon receipt of an extradition request from the competent authority of a foreign State, the prosecutor, on the instruction (request) of the central authority, shall lodge a request with the court at the place of the person’s detention for the arrest of the person pending extradition.
...
On receipt of a request [for an arrest pending extradition], the judge shall check the identity of the person concerned, ask him or her to make a statement, check the extradition request and the available material from the extradition inquiry, hear the opinion of the prosecutor and other participants, and deliver a decision:
1) ordering arrest pending extradition;
2) refusing arrest pending extradition if there are no grounds for its application.
...
An appeal against the judge’s decision may be lodged with the court of appeal by the prosecutor, the person placed under arrest pending extradition, or his or her defence counsel or legal representative, within three days of the date of delivery of the decision. The lodging of an appeal against the judge’s decision shall not suspend its entry into force or its execution. A decision of the court of appeal shall not be subject to [further] appeal.
Arrest pending extradition shall be applied until a decision has been taken on the extradition of the person concerned and his actual surrender (extradition), but shall not last more than eighteen months.
Within that period, and not less than once every two months, the judge at the place of the person’s detention shall check, at the request of the prosecutor, if there are grounds for keeping the person in detention or for his or her release.
Upon a complaint by the person placed under arrest pending extradition, or by his or her defence counsel or legal representative, the judge at the place of the person’s detention shall check if there are grounds for the person’s release, though not more often than once a month.
...”
Article 465. Extradition inquiry
“The extradition inquiry concerning circumstances capable of preventing the person’s extradition shall be carried out by the central authority or, upon its instructions (request), by the regional prosecutor’s office.
...”
Article 466. Refusal of extradition
“A person’s extradition to a foreign State shall be refused if:
1) on the day of the decision on extradition the person ... is, according to Ukrainian laws, a Ukrainian national or a stateless person permanently residing in Ukraine;
2) Ukrainian law does not provide the punishment of imprisonment for the crime for which extradition is being sought;
3) the charges concerning the crimes for which extradition is being sought are time-barred according to Ukrainian law ...
4) the competent authority of the foreign State has not provided, upon the central authority’s request, additional material or data, without which a decision on the extradition request may not be taken;
5) the person’s extradition is incompatible with Ukraine’s undertakings under international treaties to which it is a party;
6) there are other circumstances envisaged by an international treaty to which Ukraine is a party.
A person who has been granted refugee status may not be extradited to a foreign State where his or her health, life, or freedom is endangered for reasons of race, faith (religion), ethnicity, nationality, membership of a particular social group, or political opinion, unless otherwise provided by an international treaty to which Ukraine is a party.
...”
Article 467. Decision on an extradition request
“Having examined the material of the extradition inquiry, the central authority shall take a decision to extradite the person or to refuse [his or her] extradition to the foreign State. The decision shall be taken by the head of the central authority or his or her deputy.
...
If a decision to extradite the person is taken, that person shall be given a copy of the decision. If the decision has not been challenged before a court within seven days, the actual transfer of the person to the competent authorities of the foreign State shall be organised.”
B. Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011
61. Section 31 of the Act provides that persons recognised as refugees by other States Parties to the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) and the 1967 Protocol to the Convention cannot be expelled or forced to return directly or indirectly to countries where their life or freedom would be threatened on account of their race, religion, ethnicity, nationality, membership of a particular social group or political opinion. This prohibition also applies to returning persons to countries where such recognised refugees could be at risk of torture or other cruel, inhuman or degrading treatment or punishment.
THE LAW
I. SCOPE OF THE CASE
62. In his reply to the Government’s observations, the third applicant submitted a new complaint. He alleged that his detention from 19 July to 3 August 2010 was unlawful since there had been no valid court order authorising his detention during that period. The Court considers that, in the circumstances of the present case, this complaint, which was never raised before the domestic authorities, cannot be considered as an elaboration of the applicant’s original complaints, on which the Government have commented. The Court considers, therefore, that it is not appropriate at this time to take up these matters in the context of the present case (see Kats and Others v. Ukraine, no. 29971/04, §§ 87 and 88, 18 December 2008, and Kondratyev v. Ukraine, no. 5203/09, § 62, 15 December 2011).
II. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION IN RESPECT OF THE FIRST THREE APPLICANTS
63. The first three applicants complained of a number of breaches of Article 5 § 1 of the Convention which reads, in so far as relevant, as follows:
“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:
...
(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
1. Alleged violation of Article 5 § 1 on account of the domestic courts’ alleged failure to give due consideration to the second applicant’s recognition as a refugee by the UNHCR
64. The Government submitted that the second applicant’s complaint in this respect was unsubstantiated. They submitted that the only persons recognised as refugees under Ukrainian law are those who have been recognised as such by the Ukrainian State authorities and, under the 2011 Refugees Act, by the authorities of any other State Party to the Refugee Convention and the 1967 Protocol. The recognition of refugees by the UNHCR had advisory force only and was not binding.
65. The second applicant submitted that UNHCR decisions to recognise a person as a refugee were not binding, but needed to be considered in good faith by the domestic authorities. The domestic courts examining the question of detention had been made aware of the applicant’s status as a refugee under the UNHCR mandate (see paragraph 22 above). However, those courts had not given due consideration to it. For him, that constituted a fundamental defect in the detention order, rendering his subsequent detention contrary to Article 5 § 1.
66. The Court notes that it is not disputed that the applicants were detained with a view to their extradition and that Article 5 § 1 (f) of the Convention is thus applicable in the instant case.
67. The Court reiterates that deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified as long as deportation or extradition proceedings are in progress (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009). The Court has accordingly found violations of that provision in numerous cases where the applicant was detained despite the existence of established circumstances which prevented extradition or expulsion under domestic law (see, for example, Garkavyy v. Ukraine, no. 25978/07, §§ 70 and 75, 18 February 2010, and Dubovik v. Ukraine, nos. 33210/07 and 41866/08, §§ 61 and 62, 15 October 2009).
68. By contrast, in its Chahal judgment the Court stated that it was “immaterial for the purposes of Article 5§ 1 (f)... whether the underlying decision to expel can be justified under national or Convention law” (see Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996‑V).
69. The relevant question, therefore, is whether recognition of the second applicant as a refugee by the UNHCR in itself constituted an obstacle to his extradition. This question is distinct from the questions of whether the UNHCR’s refugee determination could be relevant in assessing the risk of ill-treatment contrary to Article 3 in the receiving country (see, for example, Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 82, 22 September 2009, and Yakubov v. Russia, no. 7265/10, § 91, 8 November 2011) and whether the grant of asylum by another State, recognised by the detaining State, would be an obstacle to extradition (see Eminbeyli v. Russia, no. 42443/02, §§ 7, 17, 48, 26 February 2009).
70. However, the applicant’s complaint appears to be based on the conflation of these distinct questions. Indeed, the applicant did not argue that the UNHCR’s refugee status determinations were binding on domestic authorities and did not refer to any provision of applicable law which would make them so binding. Therefore, he did not make out an argument that they, as such, constituted an obstacle to the applicant’s extradition to Uzbekistan, even though they may have been relevant in assessing the risk of his ill-treatment there.
71. Moreover, no applicable legal provision required the domestic courts considering the question of the applicant’s detention pending extradition to examine the substantive question of whether the applicant would be at risk of ill-treatment in the requesting State. Under domestic law, that question was to be examined, in the first place, within the framework of the extradition inquiry (see paragraph 59 above). This was also the UNHCR’s own position domestically (see paragraph 49 above). Accordingly, there are no grounds for considering the alleged failure of the courts to examine this question in detail in the context of detention proceedings to be a “gross and obvious irregularity” in the detention orders in the sense indicated by the Court’s case-law (see Mooren v. Germany [GC], no. 11364/03, § 75, 9 July 2009, for the relevant principles).
72. It follows that the second applicant’s complaint that his detention was contrary to Article 5 § 1 (f) on the grounds that he had been recognised as a refugee under the UNHCR mandate and that this fact was not given due consideration by the courts which examined the question of his detention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Alleged violation of Article 5 § 1 in respect of the third applicant’s detention between 5 p.m. on 11 July and 5.25 p.m. on 12 July 2010
73. In his initial submissions to the Court, the third applicant alleged that he was arrested on 8 July 2010 (see paragraph 27 above). Therefore, his detention between 5 p.m. on 11 July and 5.25 p.m. on 12 July 2010 was unlawful because after 5 p.m. on 11 July 2010 his detention had exceeded the seventy-two hour time-limit permitted under domestic law for detention without a court order.
74. However, the applicant never raised that complaint before the domestic authorities. Moreover, he stated before them that he had been arrested on 9 July, rather than on 8 July (see paragraph 29 above), which would bring the total period of his detention without a court order within the seventy-two hour time-limit (see Article 461 of the Code of Criminal Procedure, quoted in paragraph 59 above). Indeed, in his comments on the Government’s observations, the applicant also stated that he had been arrested on 9 July 2010.
75. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. As regards the authorities’ alleged failure to release the first three applicants on account of the risk of ill-treatment in Uzbekistan and the indication of the interim measure in the present case
76. The first three applicants complained that their detention could not be justified under Article 5 § 1 (f) since the domestic authorities should have been aware, from the time of their arrest, that their extradition to Uzbekistan would be contrary to Article 3 in view of the risk of ill-treatment they faced there. They submitted, in the alternative, that their detention ceased to be justified under the above provision after the interim measure had been indicated by the President of the Chamber on 26 July 2010.
77. The Court notes that the examination of any risks and objections linked to the person’s possible removal from the territory of the State is intrinsic to actions “taken with a view to deportation or extradition”. Even if such an examination establishes that such risks and objections are well‑founded and capable of preventing the person’s removal, such a possible future outcome cannot in itself retroactively affect the lawfulness of detention pending an examination of a request for extradition. The Court reiterates that all that is required under 5 § 1 (f) is that “action is being taken with a view to deportation or extradition” (see Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996‑V). Given that it was the authorities’ intention throughout this period of detention to extradite the applicants, and that, until 22 November 2010, no legal or factual impediment to them ultimately being extradited had been identified, the detention cannot be considered as being unlawful or arbitrary within the meaning of Article 5 § 1 (see Mokallal v. Ukraine, no. 19246/10, § 43, 10 November 2011).
78. The applicants’ submission that indication of an interim measure by the Court precluded his detention with a view to extradition also finds no support in the Court’s case-law. The implementation of an interim measure following an indication by the Court to a State Party that it would not be desirable to return an individual to a particular country does not in itself have any bearing on whether the deprivation of liberty to which that individual may be subject complies with Article 5 § 1 (see, for example, S.P. v. Belgium (dec.), no. 12572/08, 14 June 2011, and Al Husin v. Bosnia and Herzegovina, no. 3727/08, § 68, 7 February 2012).
79. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
4. The remaining complaints of the first three applicants
80. The Court notes that the first three applicants’ remaining complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
81. The first applicant submitted that his detention from 15 to 24 June 2010 had been unlawful, contrary to the requirements of Article 5 § 1 of the Convention.
82. The first applicant also submitted that after 16 November 2010 the extradition inquiry in his case had not been conducted with due diligence, rendering his detention after that date contrary to Article 5 § 1 (f). The second and third applicants submitted that that had been the case for them after 1 October 2010.
83. The Government submitted that all the applicants had initially been arrested under Article 106 of the Code of Criminal Procedure (see paragraph 59 above) and had then been held under provisional arrest, pending receipt of extradition requests. On receipt of the latter, they had been held under arrest pending extradition. The detention orders had been issued in compliance with domestic law. The applicants had been detained with a view to extradition and the extradition proceedings in their cases had been conducted with the requisite due diligence. The length of the extradition inquiries in their cases had been due to the fact that the applicants had challenged the dismissal of their asylum claims before the domestic courts. In addition, the GPO had been obliged to request additional information concerning the applicants’ cases from the Uzbek authorities and from various Ukrainian State authorities. The Government concluded that the applicants’ arrest and detention had been in compliance with Article 5 § 1 of the Convention.
84. As far as the first applicant’s detention from 15 to 24 June 2010 was concerned, the Government submitted that the applicant had been arrested under Article 106 of the Code of Criminal Procedure on the basis of a reasonable suspicion that he had committed offences in Uzbekistan. The decision to extend his detention on 17 June 2010 had been in compliance with domestic law and had been necessary to gather additional information about the first applicant’s personal situation. Accordingly, the Government submitted that the first applicant’s detention in that period, too, had complied with Article 5 § 1 of the Convention.
2. The Court’s assessment
(a) General principles
85. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which people may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f). The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is at issue, including the question of whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down an obligation to conform to the substantive and procedural rules of national law (see A. and Others, cited above, §§ 162-64).
86. However, the words “in accordance with a procedure prescribed by law” do not merely refer back to domestic law; they also relate to the quality of that law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in that sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise to avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996‑III).
(b) Application of the above principles to the present case
(i) As regards the lawfulness of the first applicant’s detention between 15 and 24 June 2010
87. The Court has already found that the Ukrainian legislation in force prior to 17 June 2010 could not be regarded as providing an adequate legal basis for detention pending extradition, as required by Article 5 § 1 (f) of the Convention (see, for example, Soldatenko, cited above, §§ 109‑114, and Kamyshev v. Ukraine, no. 3990/06, §§ 67-68, 20 May 2010). The reason for that finding was the failure of the national legislation at the time to provide a procedure for detention pending extradition. The same legislation was applicable in the first applicant’s case between 15 and 17 June 2010. The applicant’s detention during the period in question was therefore unlawful.
88. The Court further notes that on 17 June 2010 the Code of Criminal Procedure was amended to provide a legal basis for extradition proceedings and detention in the context of extradition. However, on 17 June 2010 the domestic court extended the first applicant’s detention on the basis of the provisions of domestic law as they stood before 17 June 2010 (see paragraph 13 above), without referring to the amendments which came into force the same day. The amendments, therefore, did not affect the applicant until 24 June 2010. The Court considers that the applicant continued to be unlawfully deprived of his liberty during that period too (see, mutatis mutandis, Khomullo v. Ukraine, no. 47593/10, § 57, 27 November 2014).
89. There has, therefore, been a violation of Article 5 § 1 of the Convention in respect of the first applicant on account of the unlawfulness of his detention between 15 and 24 June 2010.
(ii) As regards the authorities’ diligence in the conduct of the extradition proceedings
90. The Court observes that the applicants limited the scope of their complaint concerning the authorities’ diligence in the extradition proceedings to the period after 16 November 2010, as concerns the first applicant, and after 1 October 2010, as concerns the second and third applicants. According to them, on those dates the GPO received the final pieces of information relevant to the question of extradition (see paragraphs 42 and 44 above). The Court will accordingly examine this complaint as submitted by them (compare Yefimova v. Russia, no. 39786/09, § 271, 19 February 2013).
91. The Court finds that prior to 22 November 2010 the authorities actively examined the possibility of the applicants’ extradition to Uzbekistan and the circumstances which could prevent such an extradition under domestic law, including their potential refugee status in Ukraine or in other States Parties to the Refugee Convention. In that period, as afterwards, the applicants pursued their asylum claims in Ukraine (compare Akram Karimov v. Russia, no. 62892/12, § 158, 28 May 2014). The GPO also assisted the US authorities in the processing of the first and third applicants’ requests for asylum (see paragraphs 43 and 46 above). Moreover, the GPO believed, based on information apparently received from the second applicant and from the US authorities, that the US authorities were reviewing the second applicant’s asylum application (see paragraph 46 above), even though it ultimately turned out that he was ineligible for resettlement in a third country due to his marital situation (see paragraph 49 above).
92. Prior to 22 November 2010, the GPO also attempted to obtain additional information about the nature of the charges against the applicants from the Uzbek authorities (see paragraphs 39 and 42 above).
93. However, on 22 November 2010 the GPO received reports from the regional prosecutor’s office, which had been charged with conducting the extradition inquiry, concluding that the failure of the Uzbek authorities to provide sufficient information about the acts of which the applicants were suspected in Uzbekistan constituted an obstacle to their extradition. There is no indication that the GPO followed up on that conclusion at any point in the course of the applicants’ subsequent detention, right up to their release. In particular, it appears that it took no steps to request the additional information from the Uzbek authorities which had been found to be missing. Neither did it express any doubts about the regional office’s conclusions at any point.
94. As far as the first and third applicants are concerned, the failure of the Uzbek authorities to provide sufficient information was eventually cited by the GPO as one of the grounds for its decisions to reject the extradition requests relating to those applicants.
95. As far as the second applicant is concerned, the Court does not have any information at its disposal concerning the completion of the extradition inquiry in his case. However, the Court finds it relevant that in his case, too, on 22 November 2010 the regional prosecutor’s office reached the same conclusion as in the cases of the other two applicants. In view of the close similarities between the charges brought against all three applicants in Uzbekistan, and in view of the practice followed by the GPO in the cases of the other two applicants, the Court finds it established that the requirements of due diligence required the GPO to follow up the conclusion of the regional prosecutor’s office concerning the second applicant within a reasonable time.
96. To be sure, the regional office’s conclusion was not final because under domestic law it was the GPO which was the authority authorised to make the final conclusion in the extradition inquiry (see Article 452 of the Code of Criminal Procedure, quoted in paragraph 59 above). Moreover, the domestic authorities might have needed time to clarify certain matters concerning the applicants’ extradition even after the regional prosecutor’s office had reached its conclusion in their cases. In particular, the GPO might have needed time to challenge or verify that conclusion or request information from the Uzbek authorities which the regional office had found missing. However, the domestic authorities were under an obligation to act with due diligence. In the present case, there is no satisfactory explanation as to why the GPO failed to follow up in any way on the conclusion reached by its regional office, with the applicants remaining in detention for more than a year and two months after that conclusion had been reached (compare Khomullo, cited above, §§ 67-69).
97. It is also true that during the period from 22 November 2010 to the applicants’ release, various procedures relating to the applicants’ asylum requests were pending before the Ukrainian and, for the first and third applicants, before the Swedish and US authorities. However, those proceedings as such could not justify their detention (see Athary v. Turkey, no. 50372/09, § 31, 11 December 2012). Under Ukrainian law, the requesting state’s failure to submit sufficient information and the presence of refugee status were two separate and independent grounds for rejection of an extradition request, each of them sufficient on its own to justify such a rejection (see Article 466 of the Code of Criminal Procedure, quoted in paragraph 59 above). Therefore, the fact that asylum proceedings which could have resulted in the grant of refugee status and barred the applicants’ extradition were pending in respect of the applicants, did not change the fact that, at least as of 22 November 2010, the domestic authorities had sufficient information in their possession to reach a conclusion that there was a high likelihood that another, independent, obstacle to extradition existed. That was a possibility which they were under an obligation to explore with due diligence and there is no satisfactory explanation for their delay in doing so.
98. The Court finds, therefore, that after 22 November 2010 the proceedings for the applicants’ extradition were not conducted with requisite diligence.
99. There has, therefore, been a violation of Article 5 § 1 of the Convention in respect of the first three applicants on account of the domestic authorities’ failure to conduct the proceedings for their extradition with requisite diligence after 22 November 2010.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
100. The fourth applicant complained that his detention had not been justified under Article 5 § 1 (f) of the Convention because the offence for which he was wanted in Uzbekistan was not punishable under Ukrainian law and because he faced a risk of ill-treatment in Uzbekistan.
101. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
102. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
103. 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
104. The first and third applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage, while the second applicant claimed EUR 20,000.
105. The Government considered that claim unsubstantiated and excessive.
106. The Court, ruling on an equitable basis, awards the applicants EUR 10,000 each in respect of non-pecuniary damage.
B. Costs and expenses
107. The applicants made no claim for costs and expenses. Accordingly, the Court makes no award under this head.
C. Default interest
108. The Court considers it appropriate that the default interest rate 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,
1. Declares the complaints under Article 5 § 1 concerning the alleged unlawfulness of the first applicant’s detention from 15 to 24 June 2010 and concerning the alleged lack of requisite diligence in the conduct of extradition proceedings with regard to the first three applicants admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the first applicant on account of the unlawfulness of his detention between 15 and 24 June 2010;
3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the first three applicants on account of the domestic authorities’ failure to conduct the proceedings for their extradition with requisite diligence after 22 November 2010;
4. Holds,
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 10,000 (ten thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Swedish crowns at the rate applicable at the date of settlement;
(ii) EUR 10,000 (ten thousand euros) to the second applicant, 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;
(iii) EUR 10,000 (ten thousand euros) to the third applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into United States dollars 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 15 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy