OSMAYEV v. UKRAINE

FIFTH SECTION

DECISION

Application no. 50609/12
Adam Aslanbekovich OSMAYEV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 30 June 2015 as a Chamber composed of:

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 9 August 2012,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the Russian Government,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Adam Aslanbekovich Osmayev, is a Russian national, who was born in 1981. Until his release on 18 November 2014 he had been detained in Odessa. He was represented before the Court by Ms Y.V. Zaikina, a lawyer practising in Kyiv.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostianova.

3. The Russian Government exercised their right of third-party intervention in accordance with Article 36 § 1 of the Convention and were represented by the Representative of the Russian Federation at the European Court of Human Rights, Mr G. Matyushkin. Their submissions concerned the applicant’s complaint that he would be exposed to risk of ill-treatment in case of extradition to the Russian Federation.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Extradition proceedings

5. On 8 May 2007 the Federal Security Service of the Russian Federation (“the FSB”) instituted criminal proceedings against the applicant and several other ethnic Chechens on suspicion of membership of a terrorist organisation and planning an assassination attempt on Ramzan Kadyrov, the president of the Chechen Republic, in the course of his visit to Moscow.

6. On an unspecified date the applicant left Russia and entered Ukraine in the winter of 2008.

7. On 24 March 2008 the FSB placed the applicant on the international wanted list.

8. On 2 April 2009 the Moscow City Court convicted some of the applicant’s co-defendants of various crimes, including planning an assassination attempt on Mr Kadyrov.

9. On 28 February 2012, following the applicant’s arrest in Ukraine (see paragraph 29 below), the General Prosecutor’s Office of the Russian Federation requested that its Ukrainian counterpart extradite the applicant to Russia on several charges including participation in an illegal armed group and planning an assassination attempt on a public figure. The request contained assurances that the applicant’s defence rights would be respected, that he would not be subjected to treatment contrary to Article 3 of the Convention, and would not be sentenced to the death penalty.

10. Following the applicant’s arrest in Ukraine, the Russian human rights organisation “Union of Solidarity with Political Prisoners” issued a statement recalling that it had previously declared the applicant to be a person persecuted for political reasons because it believed that the criminal case against him for the planning of an assassination attempt on Ramzan Kadyrov was fabricated and politically motivated.

11. On 6 March 2012 the FSB instituted criminal proceedings against the applicant on suspicion of planning an assassination attempt on the Prime Minister of Russia.

12. On 20 March 2012 the General Prosecutor’s Office of the Russian Federation sent its Ukrainian counterpart another request for the applicant’s extradition on charges of planning an assassination attempt on a public figure and several related charges in connection with the criminal proceedings instituted against the applicant on 6 March 2012. The request contained assurances identical to those in the request of 28 February 2012.

13. On 26 April 2012 Ms Nadia Banchik, an American member of Amnesty International, wrote to the President of Ukraine urging him to prevent the applicant’s extradition to Russia in view of the risk of ill-treatment and an unfair trial. Relying in particular on examples from the reports of Amnesty International, she described the alleged serious ill-treatment suffered by a number of Chechens at the hands of Russian law enforcement authorities and Ramzan Kadyrov’s forces.

14. On 11 July 2012 the General Prosecutor’s Office of Ukraine (“the GPO”) decided to extradite the applicant to Russia.

15. On 23 July 2012 the applicant appealed against the extradition decision. He noted, in particular, that if extradited he would be deprived of the right to be tried in Ukraine and compensation for the damage caused to Ukrainian victims of his crimes in Ukraine would be hindered, and that he was being persecuted by Russian authorities for political reasons. He also noted that proceedings concerning his asylum request in Ukraine were pending (see paragraph 22 below) and that he faced the risk of ill-treatment contrary to Article 3 of the Convention, unfair trial and the death penalty in Russia. He referred to Nadia Banchik’s letter and the statement of the Union of Solidarity with Political Prisoners (see paragraphs 10 and 13 above).

16. On 30 July 2012 the applicant sent a declaration renouncing his Russian citizenship to the Federal Migration Service of the Russian Federation.

17. On 3 August 2012 the Odessa Malynovskyy District Court (“the Malynovskyy Court”) examined the applicant’s appeal in the presence of the applicant and his lawyer and upheld the decision. It found, in particular, that in the light of the assurances provided by the Russian authorities and the nature of the accusations against him, the applicant’s allegations concerning the risk of the death penalty, ill-treatment and politically motivated prosecution were unsubstantiated. The court also held that the publications about the occurrence of torture in Russia in general did not prove that the applicant personally would be ill-treated. The court stated that the decision of 8 June 2012 to dismiss the applicant’s request for asylum (see paragraph 24 below) proved that the applicant was not a permanent resident of Ukraine, which would prevent his extradition under domestic law. The court took no decision concerning the applicant’s detention pending extradition.

18. The applicant appealed against the decision of the District Court, referring to essentially the same arguments as before and also stating that he had renounced his Russian citizenship, alleging that he had been ill-treated by the police following his arrest in Ukraine, and that he was suffering from partial amnesia and was unsure of his identity.

19. On 14 August 2012 the Odessa Regional Court of Appeal (“the Court of Appeal”) examined the applicant’s appeal against the decision to extradite him and upheld the extradition. The court referred to the assurances provided by the Russian authorities.

20. On 15 August 2014 the General Prosecutor’s Office of Ukraine revoked its decision of 11 July 2012 and rejected the Russian authorities’ requests for the applicant’s extradition on the ground that if extradited, he would face a risk that his rights guaranteed by Articles 3, 6 and 14 of the Convention would not be secured.

21. In early 2015 a number of media outlets reported that the applicant was serving as leader of a battalion fighting on the side of Ukrainian Government forces in the eastern regions of Ukraine.

2. Application for asylum and subsequent proceedings

22. On 24 April 2012 the applicant lodged an application for political asylum with the State Migration Service of Ukraine (“the Migration Service”), maintaining that he had never been involved in any terrorist activities and that his criminal prosecution in the Russian Federation was political repression in disguise. In particular, he was a member of a prominent family which used to have considerable influence in Chechnya before Ramzan Kadyrov came to power; his father used to chair an oil company in Chechnya and his uncle used to be the Speaker of the Chechen Parliament. Following Ramzan Kadyrov’s rise to power, the family had been driven out of Chechnya. The applicant had publicly shared his dissatisfaction with the policies of Ramzan Kadyrov and the Russian authorities in respect of Chechnya. His political views, in particular his support for a free and independent Chechnya, and his being a personal enemy of Ramzan Kadyrov, were the real reasons for his persecution by the Russian authorities. He stated that numerous instances of torture and killings by Russian law-enforcement bodies and Ramzan Kadyrov’s armed groups indicated that he would be tortured and killed if he were extradited to Russia.

23. In a report prepared following the examination of the applicant’s asylum application, a head of section of the Odessa Regional Department of Refugee Affairs of the Migration Service recommended that the application be refused. He found that the applicant’s submissions concerning threats allegedly made against him in Russia in connection with negative statements about Ramzan Kadyrov were not credible since he had been an ordinary citizen and had not been a member of any political group and that the applicant had been misleading the Ukrainian authorities in order to delay his extradition to Russia. There were also indications of his being involved in terrorist activity, in particular because: he had shown interest in literature associated with the Wahhabi version of Islam; his life partner Ms A.O. had also displayed Wahhabi tendencies; he had acknowledged that he had had links with persons prosecuted for terrorist activities. The report also referred to an internet publication of Rosbalt, a Russian news agency, according to which the applicant’s three co-suspects had been convicted in 2009 for planning an assassination attempt on Ramzan Kadyrov. The report went on to note that there were no indications that the convicted co-suspects had been ill-treated. The report further stated that the Russian authorities had provided assurances that the applicant’s rights would be guaranteed.

24. On 8 June 2012 the Odessa Regional Department of Refugee Affairs refused to initiate asylum proceedings in respect of the applicant, having found that his application was manifestly inadmissible. The Department noted, in particular, that owing to the applicant’s arrival in Ukraine in 2008, the 2012 application lodged after his arrest was time-barred and that in any event his allegations of being a victim of political repression were ill-founded.

25. On 23 July 2012 the applicant challenged the decision of 8 June 2012 before the Odessa District Administrative Court. He argued that he had not missed the five-day time-limit for challenging the decision because the decision had been sent to his place of detention in Ukraine, without an explanation as to the procedure for challenging it. The applicant’s lawyer had only met him on 19 July 2012, and then translated the decision for the applicant and explained the procedure for challenging it.

26. On 7 August 2012 the Odessa District Administrative Court dismissed the applicant’s complaint without considering it on the merits. It held that the applicant had missed the five-day time-limit for challenging the decision of 8 June 2012 since the decision had been served on him on 5 July 2012 and he had had sufficient knowledge of Ukrainian to understand it. On 4 September 2012 the Odessa Administrative Court of Appeal upheld this decision.

3. Criminal proceedings against the applicant in Ukraine

27. On 4 January 2012 a private flat in Odessa, Ukraine, caught fire as a result of an explosion. On entering the flat, the firefighters discovered I.P., a Kazakh national, seriously burned, and the dead body of R.M., a Russian national. The police found traces of explosives in the flat and arrested I.P.

28. On 16 January 2012 the Odessa police instituted criminal proceedings against the applicant, I.P. and R.M. (deceased) on suspicion of having intentionally caused property damage and of illegal handling of explosives. On the same day the Odessa Prymorskyy District Court (“the Prymorskyy Court”) authorised the applicant’s arrest.

29. On 4 February 2012 the applicant was arrested in Odessa. During the arrest a passport in the name of S. Dolakov with the applicant’s photograph in it was seized.

30. On 7 February 2012 the Prymorskyy Court ordered that the applicant be placed in pre-trial detention for two months pending a criminal investigation against him for intentional property damage and illegal handling of explosives.

31. On 12 March 2012 the Security Service of Ukraine (“the SBU”) charged the applicant and I.P. with membership of a terrorist group, planning of terrorist acts, illegally handling explosives and intentionally causing property damage.

32. On 3 April 2012 the Prymorskyy Court extended the applicant’s pre-trial detention until 4 June 2012.

33. On 3 May 2012 the Court of Appeal extended the applicant’s detention pending criminal investigation until 4 August 2012.

34. On 18 July 2012 the SBU additionally charged the applicant with having crossed the Ukrainian border using a false identity document, while charges against him were amended from intentionally causing property damage to negligently causing property damage.

35. On 31 July 2012 the Court of Appeal extended the applicant’s detention until 4 October 2012.

36. On 25 August 2012 the applicant’s co-accused, I.P., was extradited to Russia.

37. On 28 September 2012 the Court of Appeal extended the applicant’s detention until 4 November 2012.

38. According to the Government, on 26 October 2012 the Higher Civil and Criminal Court extended the applicant’s detention until 4 February 2013.

39. On 1 November 2012 the investigation was completed and the applicant was given time to study the case file.

40. On 18 November 2014 the Prymorskyy Court convicted the applicant of illegally handling explosives, negligently causing property damage, and forgery. It sentenced him to two years, nine months and fourteen days’ imprisonment. As the length of time spent in pre-trial detention was deducted from this sentence, the applicant was released immediately.

B. Relevant domestic law and practice

1. Code of Criminal Procedure of 1960 (in effect until 20 November 2012)

41. Effective from 17 June 2010, a new Chapter 37 governing extradition procedures was added to the Code.

42. The relevant provisions of Chapter 37 of the Code read as follows:

Article 452

Central authorities concerning extradition

“...

The General Prosecutor’s Office shall be the central authority concerning extradition of the accused (suspect) where the proceedings [in the foreign State] are at the stage of pre-trial investigations.

...”

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 463

Extradition arrest

“...

Extradition arrest shall be applied until a decision on the extradition of the person concerned and his actual surrender (extradition), but shall not last more than eighteen months.

Within this period, and not less than once every two months, the judge at the place of the person’s detention shall check, upon the prosecutor’s request, if there are grounds for further detention of the person or for his or her release.

...”

Article 466

Refusal of extradition

“A person’s extradition to a foreign State shall be refused if:

...

5) the person’s extradition is incompatible with Ukraine’s undertakings under its international treaties;

6) there are other circumstances envisaged by an international treaty to which Ukraine is a party.

...”

Article 467

Decision on an extradition request

“Having examined the materials 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, actual transfer of the person to the competent authorities of the foreign State shall be organised.”

Article 468

Procedure for appeal against a decision to extradite

“A decision to extradite may be appealed against by the person concerned, his or her defence counsel or legal representative to a local court at the place of the person’s detention.

...

The appeal shall be examined in a single-judge formation within ten days of the date of its receipt by the court. The hearing shall be held in the presence of the prosecutor, the person concerned, his or her defence counsel or legal representative, if the latter participates in the proceedings.

When examining the appeal, the judge shall not consider the question of guilt and shall not review the lawfulness of procedural decisions taken by the competent authorities of the foreign State in the proceedings against the person whose extradition is requested.

Following the examination, the judge shall take a reasoned decision:

1) rejecting the appeal;

2) allowing the appeal and quashing the decision to extradite.

After the judge’s decision quashing the decision to extradite takes effect, the person concerned shall be immediately released from detention.

An appeal against the judge’s decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance or by the person concerned, his or her defence counsel or legal representative, within seven days of the date of delivery of the impugned decision. The lodging of an appeal against the judge’s decision is of suspensive effect.”

43. The relevant provisions of the Code of Criminal Procedure with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010).

2. Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011

44. Under section 5 of the Act, a person seeking to be recognised as a refugee or a person in need of complementary protection in view of a threat to his or her life, security or freedom in the country of origin may lodge an application for asylum with the Migration Service in Ukraine. The application must be lodged within five days of crossing the border, if the person entered Ukraine lawfully, or “without delay” in the case of unlawful entry.

45. Section 8 lays down the procedure for preliminary consideration of applications for asylum, which must be completed within fifteen days. In particular, the Migration Service holds interviews with the applicants, considers the information contained in the applications and relevant documents, and takes a decision on the admissibility of the applications. In taking this decision, it must decide whether “documents for the consideration of the question of granting refugee status or the status of a person in need of complementary protection are to be prepared”. The Migration Service refuses to prepare such documents in respect of applications which are manifestly ill-founded (do not concern the circumstances calling for protection), constitute an abuse of the right of application (the applicant submits false identity information), or are submitted by persons whose previous applications were rejected as unsubstantiated and where the circumstances have not changed. Within three working days written notice of the refusal, indicating the reasons on which it is based and the procedure of appeal, is given to the applicants or their official representatives. An appeal may be lodged with the courts within five days of the notification.

3. Resolution no. 16 of the Plenary Supreme Court of 8 October 2004 on certain issues relating to the application of legislation governing the procedure and length of detention (arrest) of persons awaiting extradition

46. The relevant provisions of the Resolution read as follows:

“For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves that:

...

2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State; the courts are not empowered to decide on this issue.

...”

COMPLAINTS

47. The applicant complained that his extradition to the Russian Federation would put him at risk of ill-treatment in breach of Article 3 of the Convention. He also complained under the same provision of the Convention of ill-treatment during his arrest and while in police custody in Ukraine and of the lack of investigation into the ill-treatment allegations.

48. The applicant further complained that his detention starting from 11 July 2012 had been unlawful within the meaning of Article 5 § 1 of the Convention.

49. Under Article 5 § 4 of the Convention he complained that because of the authorities’ failure to take any decision concerning his detention with a view to extradition he could not benefit from a two-month periodic review of the lawfulness of his detention.

50. The applicant complained under Article 5 § 5 of the Convention that domestic law did not allow him to claim compensation for his allegedly unlawful detention pending extradition.

51. He also complained under Article 6 of the risk of flagrant denial of a fair trial in Ukraine and Russia in the event of his extradition and complained further, under Article 13, that he did not have an effective remedy in respect of his complaint under Article 6.

52. Lastly, the applicant complained under Article 13 that in practice he had not had an effective remedy by which to challenge his extradition on the grounds that he would risk being subjected to ill-treatment if extradited.

THE LAW

A. Alleged violation of Article 3 of the Convention

53. The applicant complained that his extradition to the Russian Federation would put him at risk of ill-treatment in breach of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

54. The Court notes that the decision to extradite the applicant was revoked on 15 August 2014 and the Russian authorities’ requests for extradition were rejected, in part on the grounds that if extradited the applicant would face the risk of treatment contrary to Article 3. As the applicant is no longer at risk of extradition to Russia, he can no longer claim to be a victim of a violation of his rights under Article 3 of the Convention within the meaning of Article 34 of the Convention. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 13 of the Convention

55. The applicant complained that in practice he had not had an effective remedy by which to challenge his extradition on the grounds that he would risk being subjected to ill-treatment if extradited. He relied on Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

56. The Government submitted that the applicant had had at his disposal an effective remedy in respect of his complaint under Article 3, namely an appeal to the domestic courts against the extradition decision pursuant to the Code of Criminal Procedure and, in fact, had used this remedy. The applicant argued that this remedy had turned out to be ineffective in practice because the domestic courts’ approach to the evaluation of risk of ill-treatment had been purely formalistic and the domestic courts had not examined his claims of the risk of ill-treatment in Russia thoroughly.

57. The Court has found that the applicant can no longer claim to be a victim of a violation of his rights under Article 3 of the Convention in respect of his complaint that he faces the risk of ill-treatment in case of extradition to Russia. Accordingly, the applicant has no arguable claim for the purposes of Article 13 of the Convention in this respect (see, for example, Khodzhamberdiyev v. Russia, no. 64809/10, § 80, 5 June 2012).

58. As far as the applicant’s complaint under Article 13 in respect of the period when he was under threat of extradition is concerned (see, for example, Budrevich v. the Czech Republic, no. 65303/10, § 81, 17 October 2013), it is also inadmissible for the following reasons. The applicant has not presented any specific arguments as to why he believed the domestic remedies to have been ineffective. His complaint is in effect limited to a disagreement with the conclusion reached by the domestic courts. However, the Court reiterates that according to its constant case-law the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002‑I, and Onoufriou v. Cyprus, no. 24407/04, §§ 121, 7 January 2010). The mere fact that the domestic courts ultimately decided against the applicant does not indicate, as such, a lack of effectiveness of the proceedings within the meaning of Article 13 of the Convention (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 101, ECHR 2002‑II). Having regard to the scope of the applicant’s submissions, the Court considers that this part of the application is wholly unsubstantiated.

59. It follows that the applicant’s complaint under Article 13 in conjunction with Article 3 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violation of Article 5 § 1 of the Convention

60. The applicant complained that his detention starting from 11 July 2012 had been unlawful within the meaning of Article 5 § 1 of the Convention, which reads, in the relevant parts, 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:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

(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.”

61. The Government submitted that the applicant’s complaint was manifestly ill-founded. The applicant had been detained under Article 5 § 1 (c) within the framework of criminal proceedings which had been pending against him in Ukraine. No decision to detain him had been taken within the framework of extradition proceedings and therefore Article 5 § 1 (f) was not applicable.

62. The applicant alleged that after the decision to extradite him had been taken on 11 July 2012 he was detained for the purposes envisaged by Article 5 § 1 (f) of the Convention and the domestic authorities breached the requirements of domestic law by failing to consider the matter of his arrest for the purpose of extradition. According to him the pre-trial investigation had, in fact, been completed by the time the decision to extradite had been taken and subsequently the Ukrainian authorities had not been investigating his case. The applicant further maintained that the domestic authorities submitted the requests for extension of his detention with a delay and beyond the statutory time-limit. The applicant submitted that for the above reasons sub-paragraphs (c) and (f) of Article 5 § 1 had been violated in his case.

63. The Court notes at the outset that the applicant was arrested and placed in pre-trial detention in connection with a criminal investigation initiated against him for the offences committed in Ukraine. Subsequently this detention was extended until his release on 18 November 2014. The Russian authorities did not request the applicant’s extradition to Russia until after he had been arrested in Ukraine and a domestic court had authorised his pre-trial detention in connection with the pre-trial investigation pending in Ukraine (see paragraphs 9 and 30 above). No decision to detain the applicant with a view to his extradition was ever taken.

64. The applicant failed to identify any provision in domestic law which would require the authorities to consider placing him in detention with a view to his extradition where, as in the present case, the applicant had already been placed in detention within the framework of criminal proceedings pending against him in Ukraine. Therefore the applicant’s argument that his detention breached Article 5 § 1 because the authorities failed to decide the question of his detention pending extradition must be rejected.

65. Under the circumstances, the Court concludes that the applicant’s deprivation of liberty fell solely within the ambit of sub-paragraph (c) of Article 5 § 1.

66. The Court further finds that the applicant’s allegation that the request to extend his detention beyond six months, that is to say beyond 4 August 2012, was lodged too late and is wholly unsubstantiated.

67. The applicant also argued that his detention breached Article 5 § 1 because no investigative steps were conducted in the investigation which was pending against him in Ukraine after the decision to extradite him to Russia had been taken.

68. The Court observes in this respect that, contrary to the applicant’s submissions, some investigative steps were conducted by the Ukrainian authorities even following their decision to extradite him. In particular, on 18 July 2012 the applicant was charged with additional offences committed in Ukraine. Moreover, on 25 August 2012 the applicant’s co-accused I.P. was extradited to Russia. In such circumstances the Ukrainian authorities were likely required to take additional steps to complete the investigation which was pending against the applicant and I.P. in Ukraine. This investigation was nevertheless completed by 1 November 2012 despite I.P.’s extradition, which must have disrupted and delayed it. Subsequently the applicant was committed for trial and he was convicted. For these reasons the Court finds unsubstantiated the applicant’s allegations that the Ukrainian authorities did not take any steps to investigate his case after the decision to extradite him had been taken.

69. The Court notes that the applicant’s submissions in this respect do not disclose any indications of arbitrariness or, more particularly, bad faith or deception, in the authorities’ conduct (see, conversely, Bozano v. France, 18 December 1986, § 60, Series A no. 111, and Čonka v. Belgium, no. 51564/99, § 41, ECHR 2002‑I).

70. It follows that the applicant’s complaint under Article 5 § 1 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

D. Alleged violation of Article 5 § 4 of the Convention

71. The applicant complained under Article 5 § 4 of the Convention that because of the authorities’ failure to take any decision concerning his detention with a view to extradition he could not benefit from a two-month periodic review of the lawfulness of his detention. Article 5 § 4 reads as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

72. The Government reiterated that the applicant was detained in the context of criminal proceedings against him in Ukraine. In extending the applicant’s detention the domestic courts had discharged the obligations under Article 5 § 4. This review was conducted at reasonable intervals.

73. The applicant maintained his complaint.

74. The Court observes that on 7 February 2012 the domestic court decided to place the applicant in pre-trial detention for an initial period of two months. Subsequently the applicant’s detention was extended on 3 April, 3 May, 31 July, 28 September and 26 October 2012, at less than two-month intervals.

75. The Court considers that the proceedings by which the applicant’s detention was extended could, in principle, amount to a form of automatic periodic review of the lawfulness of the applicant’s detention (see, mutatis mutandis, Khodzhamberdiyev v. Russia, no. 64809/10, § 110, 5 June 2012, and Graužinis v. Lithuania, no. 37975/97, §§ 33 and 34, 10 October 2000).

76. The Court notes that it has found that a system of automatic periodic review of pre-trial detention establishing a maximum interval between reviews of two months was compatible with Article 5 § 4 (see Reinprecht v. Austria, no. 67175/01, §§ 24 and 33, ECHR 2005‑XII).

77. The applicant’s complaint under Article 5 § 4 is limited to the assertion that because he was not placed under arrest with a view to his extradition, he could not benefit from a periodic review of the lawfulness of his detention at two-month intervals. However, the Court finds that during the period complained of the applicant did in fact benefit from a periodic review of the lawfulness of his detention at less than two-month intervals. He did not allege that this procedure had not complied with the requirements of Article 5 § 4 in any way.

78. It follows that the applicant’s complaint under Article 5 § 4 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

E. Alleged violation of Article 5 § 5 of the Convention

79. The applicant complained under Article 5 § 5 of the Convention that domestic law did not allow him to claim compensation for his unlawful detention pending extradition. Article 5 § 5 reads as follows:

“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

80. The Court reiterates that the right to compensation set forth in paragraph 5 presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. In the present case the Court has found the applicant’s complaint under Article 5 § 1 of the Convention inadmissible. Accordingly, the complaint under Article 5 § 5 must also be rejected (see, for example, Chosta v. Ukraine (dec.), no. 35807/05, 14 January 2014).

81. It follows that the applicant’s complaint under Article 5 § 5 must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

F. Other complaints

82. The applicant complained under Article 3 of the Convention of ill-treatment during his arrest and in police custody in Ukraine and of the lack of investigation into the ill-treatment allegations. He also complained under Article 6, of the risk of flagrant denial of a fair trial in Ukraine and Russia in the event of his extradition and under Article 13, that he did not have an effective remedy in respect of his complaint under Article 6.

83. 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.

84. It follows that this part of the application must also be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

G. Rule 39 of the Rules of Court

85. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 July 2015.

              Claudia WesterdiekMark Villiger
RegistrarPresident

 

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