FIRST SECTION
DECISION
Application no. 78575/16
Zdislav TANKOVIC
against Poland
The European Court of Human Rights (First Section), sitting on 16 April 2024 as a Committee composed of:
Ivana Jelić, President,
Krzysztof Wojtyczek,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 78575/16) against Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 December 2016 by a Lithuanian national, Mr Zdislav Tankovic, who was born in 1983 and currently appears to reside in Lithuania (“the applicant”) who was represented by Mr B. Zygmont, a lawyer practising in Warsaw;
the decision to give notice of the complaint under Article 5 of the Convention concerning detention pending extradition to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the decision of the Court (the duty judge) of 21 December 2018 not to apply Rule 39 of the Rules of Court to prevent the applicant’s extradition;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the Lithuanian Government, who had exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The present case concerns the applicant’s detention pending extradition to Belarus.
2. On 23 February 2016 the applicant was arrested in Poland on the basis of a “wanted” notice issued by the Belarusian authorities. He was sought as a fugitive in connection with a case concerning drug trafficking pending against him in Belarus. The offence was punishable by up to 15 years’ imprisonment.
3. On 25 February 2016 the Suwałki Regional Court (Sąd Okręgowy) ordered the applicant’s detention with a view to extraditing him, finding that there was a strong suspicion that the applicant had committed the offence for which he was to be extradited in the light of the application made by the requesting State. It also found that, given the heavy penalty for the offence and the fact that the applicant had fled Belarus, there was a risk of his absconding.
4. On 22 March 2016 the Belarusian authorities made a request to have the applicant extradited. They submitted that in June 2009, criminal proceedings had been instituted against the applicant and another person on suspicion of drug trafficking. On 26 June 2009 the applicant had been charged and put under house arrest. On 24 August 2009 an order for the applicant’s detention and a “wanted” notice had been issued following his disappearance.
5. On 25 March 2016 the prosecutor filed an application with the Suwałki Regional Court to issue an opinion on the admissibility of the applicant’s extradition. At the request of the applicant’s lawyer, the court sought additional information from the requesting State. That information was provided on 20 May 2016.
6. By the Regional Court’s decisions of 23 March and 22 May 2016, the applicant’s detention pending extradition was extended until 22 May and 22 June 2016 respectively.
7. On 21 June 2016 the Regional Court held that the applicant’s extradition was admissible. It had regard to the relevant provisions of the Code of Criminal Procedure (“the CCP”) (Kodeks postępowania karnego) and of the Agreement of 26 October 1994 between the Republic of Poland and the Republic of Belarus on Legal Assistance and Legal Relations in Civil, Family, Labour and Criminal Matters (“the 1994 Agreement”). The court noted that the charge against the applicant was not of a political nature and found that there was no evidence in the case demonstrating a real risk that the applicant’s Convention rights would be violated if he were to be extradited.
8. In the same decision, the court extended the applicant’s detention until 21 August 2016 with a view to ensuring the proper conduct of the extradition proceedings.
9. The applicant lodged an interlocutory appeal. On 28 July 2016 the Białystok Court of Appeal (Sąd Apelacyjny) set aside the Regional Court’s decision. It found that the lower court should have considered whether the applicant’s extradition to Belarus would not be contrary to European Union (EU) law, given that the applicant was a national of another EU member State.
10. The Court of Appeal further noted that there had been some doubts concerning the charges against the applicant. It observed that on 3 March 2016, that is, after the applicant had been arrested in Poland, the Belarusian authorities had issued an order concerning the charges against the applicant. However, it was not clear whether the order of 3 March 2016 had concerned the same offence in connection with which the applicant’s extradition had been sought. Lastly, the Court of Appeal held that the lower court had not properly examined the risk of exposing the applicant to treatment prohibited by Article 3 of the Convention if he were to be extradited.
11. On 12 August 2016 the Suwałki Regional Court extended the applicant’s detention until 20 October 2016. It found that there was a risk of the applicant’s absconding, given the serious nature of the charges against him. On 14 September 2016 the Regional Court dismissed the applicant’s request to release him on bail.
12. The Regional Court sought supplementary information from the requesting State, which was provided on 27 September 2016.
13. On 17 October 2016 that court again held that the applicant’s extradition was admissible. Having regard to additional information obtained from the requesting State, it found that the order of 3 March 2016 had not concerned new charges, but supplemented the initial charge brought in June 2009 with an aspect of acting in an organised criminal group.
14. The Regional Court further established that there was no real risk of infringement of the applicant’s Convention rights if he were to be extradited. It found that the evidence adduced did not substantiate that risk specifically with regard to the applicant, who had been charged with an ordinary offence. The reports regarding non-observance of human rights in Belarus related primarily to cases involving political opponents of the authorities.
15. In the same decision, the Regional Court extended the applicant’s detention until 19 December 2016. The court held that the detention was necessary to secure the proper conduct of the proceedings and to effectively hand over the applicant to the requesting State.
16. The applicant appealed. On 14 December 2016 the Court of Appeal upheld the Regional Court’s decision on the applicant’s extradition. It found that the Lithuanian authorities had been notified of the applicant’s arrest in Poland on the basis of a “wanted” notice issued by the Belarusian authorities but had not wished to seek his surrender. For the rest, the Court of Appeal agreed with the lower court’s reasons.
17. On 15 December 2016 the Court of Appeal extended the applicant’s detention pending extradition until 20 February 2017. The court held that the time‑limits of extradition proceedings and general provisions of the Code of Criminal Proceedings governing the pre-trial detention justified the extension.
18. On 22 December 2016 the case file was transmitted to the Minister of Justice (Minister Sprawiedliwości), who has the ultimate competence to grant or refuse extradition.
19. On 14 February 2017 the Regional Court ordered the extension of the applicant’s detention until 20 May 2017. Relying on the extradition request, it found that it was necessary to ensure the proper conduct of the extradition proceedings since there was a strong suspicion that the applicant had committed the offence for which he was to be extradited. Furthermore, it found that there was a likelihood of his absconding, having regard to the heavy penalty for the offence with which he had been charged and the fact that he had fled Belarus.
20. The applicant appealed against the extension of 14 February 2017. He complained that his detention had been extended by the Regional Court of its own motion, without an application to that effect submitted by the competent authority. He considered that, since the issue of his extradition was now before the Minister of Justice, the latter was the sole authority competent to request an extension of his detention.
21. On 24 March 2017 the Court of Appeal upheld the challenged decision. It dismissed the arguments concerning the lack of the Minister’s application for extension of the detention, holding that Article 605 § 1 of the CCP authorised the Regional Court to act in such cases of its own motion.
22. The applicant lodged an application for reopening of the proceedings terminated by the Court of Appeal’s decision of 14 December 2016. On 5 April 2017 the Supreme Court (Sąd Najwyższy) rejected his application as inadmissible, noting also that there had been no grounds to reopen the proceedings of its own motion.
23. On 17 May 2017 the Suwałki Regional Court extended the applicant’s detention until 18 August 2017 and the Court of Appeal upheld that decision on 19 June 2017. The courts held that the applicant’s detention was still necessary in order to secure the effective extradition of the applicant to the requesting State.
24. On 30 December 2016 the applicant requested the Commissioner for Human Rights (Rzecznik Praw Obywatelskich) and the Prosecutor General (Prokurator Generalny) to lodge a cassation appeal on his behalf. On 26 July 2017 the Commissioner granted his request. He argued, inter alia, that in its decision of 14 December 2016 the Court of Appeal had not properly examined the risk of infringement of the applicant’s rights if he were to be extradited.
25. On 17 August 2017 the Regional Court refused the applicant’s request to lift his detention and extended it until 18 December 2017. The court noted that the extradition proceedings had been prolonged owing to the activity of the applicant’s lawyer who, for example, had lodged an application for reopening the proceedings even though it was inadmissible in law.
26. The applicant lodged an interlocutory appeal. He challenged the Regional Court’s competence to rule on the extension of his detention since, following the cassation appeal lodged by the Commissioner for Human Rights, the proceedings had been pending before the Supreme Court and it was that latter court that had been competent in the matter. It appears that the applicant’s appeal was dismissed.
27. On 1 December 2017 the Regional Court extended the applicant’s detention until 23 February 2018 and that decision was upheld on appeal.
28. On 28 December 2017 the Supreme Court refused the applicant’s request to stay enforcement of the Court of Appeal’s decision on his extradition.
29. On 21 February and 24 April 2018, the Court of Appeal extended the applicant’s detention until 30 April and 30 July 2018 respectively. The applicant contested, inter alia, the competence of that court to rule on his detention over the period exceeding two years since his initial detention had been ordered. His challenges were dismissed as ill-founded.
30. On 4 April 2018 the Supreme Court set aside the decision of 14 December 2016 and remitted the case. It held that the Court of Appeal, in breach of Article 604 § 1(7) of the CCP, had not properly examined the applicant’s argument concerning the risk of infringement of his rights if he were to be extradited. It noted that the risk of ill-treatment was applicable to both ordinary offences and those of a political nature.
31. Following the remittal, the Court of Appeal sought additional information from the Belarusian authorities.
32. On 18 June 2018 the Court of Appeal upheld the Regional Court’s decision of 17 October 2016 on the admissibility of extradition. It noted that, although the reports of international organisations pointed to a problematic situation in Belarus, the general lack of respect for human rights could not in itself constitute the basis for refusing extradition. The risk of ill-treatment had to be assessed by reference to the particular circumstances of each case. The court found that the evidence in the case did not substantiate the allegation that the applicant’s rights would be infringed if he were to be extradited.
33. On the same date the Court of Appeal decided that the applicant could be released on bail of 100,000 Polish zlotys (“PLN”). It also imposed a ban on leaving the country and the obligation to report twice a week to a police station at his place of residence in Poland. It held that the proper conduct of the proceedings would be sufficiently ensured by non-custodial measures, since the extradition proceedings were approaching their end and the detention had already lasted more than two years. It noted that the extradition proceedings had been long, but not conducted in a protracted manner. In its view, it was the applicant and his lawyer who had largely contributed to their length by resorting to various procedures before different authorities. Upon appeal by the applicant, on 22 June 2018 the Court of Appeal reduced the bail to PLN 50,000. He paid it and was released on the same day.
34. On 27 September 2018 the Minister of Justice decided to surrender the applicant to the Belarusian authorities. The Regional Court unsuccessfully attempted to serve the Minister’s decision on the applicant. It later established that the applicant had left Poland for Lithuania following his release on bail in June or July 2018.
35. The applicant complained under Article 5 § 1 (f) of the Convention that his detention pending extradition had been unjustified and lengthy.
THE COURT’S ASSESSMENT
36. The Government submitted that the fact that the applicant had left Poland in breach of his bail conditions and did not disclose that information to the Court amounted to abuse of the right of individual application.
37. Later, the Government submitted that the applicant’s lack of contact with his representative indicated that he had not intended to pursue his application and this fact justified the striking-out of the case. The applicant’s representative replied that he was in regular contact with the applicant and submitted copies of email communication between them.
38. The Court finds that there is no need to examine the Government’s objections since, in any event, the case is inadmissible for the reasons set out below.
39. The general principles for assessing compatibility of detention with Article 5 § 1 (f) have been summarised in Saadi v. the United Kingdom [GC] (no. 13229/03, §§ 67-74, ECHR 2008) and Khlaifia and Others v. Italy [GC] (no. 16483/12, §§ 88-92, 15 December 2016).
40. The applicant was arrested on 23 February 2016 and remained in detention until 22 June 2018, when he was released on bail (see paragraphs 2 and 33 above). The period of his detention amounted to two years and nearly four months. His detention was ordered with a view to his extradition from Poland and fell within the ambit of sub-paragraph (f) of Article 5 § 1 of the Convention.
41. The Court finds that the applicant’s detention pending extradition conformed to the substantive and procedural rules of Polish law as evidenced by the respective decisions of judicial authorities, which duly examined and dismissed the applicant’s various challenges to the lawfulness of his detention in reasoned decisions. Furthermore, the Court cannot discern any element pointing to the arbitrariness of the applicant’s detention.
42. On the question of whether the extradition proceedings were conducted with due diligence, the Court notes that the first decision of the Regional Court was issued on 21 June 2016, that is four months after the applicant’s arrest (see paragraph 7 above). Following the remittal, the decision of the Court of Appeal authorising the applicant’s extradition was given swiftly, on 14 December 2016, less than ten months after the applicant had been arrested (see paragraph 16 above). During this time, the domestic courts also sought additional information from the requesting State which was provided speedily (see paragraphs 5 and 12 above). In the subsequent period the applicant lodged an application for reopening of the proceedings, which the Supreme Court rejected as inadmissible in law (see paragraph 22 above). At the applicant’s request, on 26 July 2017 the Commissioner for Human Rights lodged a cassation appeal which the Supreme Court examined in eight months, giving a decision on 4 April 2018 (see paragraph 30 above). Subsequently, the Court of Appeal acted rapidly, seeking additional information from the Belarus authorities (see paragraph 31 above) and delivering its decision on the applicant’s extradition on 18 June 2018. On 22 June 2018 the applicant was released on bail, having regard to the length of his detention. The Court notes that the applicant subsequently left Poland for Lithuania in breach of his bail obligations to avoid extradition (see paragraph 34 above).
43. Taking into account all of the above, the Court considers that the domestic authorities acted with due diligence and ensured that the length of the applicant’s detention did not exceed the time that could reasonably be required for the purpose pursued. Moreover, the Court would agree with the findings of the domestic court that the applicant contributed to a large extent to the overall length of the proceedings (see paragraph 33 above).
44. It follows that the complaint under Article 5 § 1 (f) of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 May 2024.
Liv Tigerstedt Ivana Jelić
Deputy Registrar President