FIRST SECTION
DECISION
Application no. 37038/09
Marko TAYLOR
against Estonia
The European Court of Human Rights (First Section), sitting on 26 June 2012 as a Chamber composed of:
Nina Vajić, President,
Peer Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
Pavel Gontšarov, ad hoc judge,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 13 July 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the decision of the President of the Chamber to appoint Pavel Gontšarov to sit as an ad hoc judge (Rule 29 § 1 (b) of the Rules of Court) since Julia Laffranque, the judge elected in respect of Estonia, was unable to sit in the case (Rule 28),
Having deliberated, decides as follows:
THE FACTS
1. The application was lodged by Mr Marko Rudi. On 21 October 2011 he submitted evidence showing that he had changed his name to Marko Taylor. He is an Estonian national, who was born in 1975 and lives in Mõra, Tartu County. He is represented before the Court by Mr L. Glikman, a lawyer practising in Tallinn.
2. The Estonian Government (“the Government”) are represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Extradition proceedings
4. On 26 November 2007 a criminal indictment was issued by the authorities of the United States of America against the applicant. He was charged with several offences, including wire fraud (use of electronic communication for fraudulent purposes), bribery, major fraud against the United States and money laundering. The charges concerned a period between April 2003 and August 2005 and related to the applicant’s employment in an organisation which received funds from the United States government for the performance of certain services in Iraq. On 27 November 2007 an arrest warrant was issued by the authorities of the United States.
5. On 11 September 2008 the authorities of the United States requested that the Estonian authorities place the applicant under provisional arrest with a view to his extradition.
6. On 17 September 2008 the applicant was arrested. On 18 September 2008 the Harju County Court, having heard the public prosecutor and the applicant, assisted by a lawyer, remanded him in custody for two months. In the County Court’s decision the charges brought against the applicant by the United States authorities as well as the legal grounds for his extradition were set out in detail. In respect of the applicant’s detention, the court considered that there were sufficient grounds to believe that if at liberty, he could evade the proceedings and abscond. Therefore, the applicant was to be remanded in custody. On 8 October 2008 the Tallinn Court of Appeal dismissed the applicant’s appeal against that order.
7. On 20 October 2008 the Ministry of Foreign Affairs sent a request to the Public Prosecutor’s Office from the United States authorities, dated 6 October 2008, for the applicant’s extradition. The Ministry noted that the Embassy of the United States had requested that the applicant be kept in custody until his extradition. On 3 November 2008 the extradition papers were forwarded to the Harju County Court.
8. On 13 November 2008 the Harju County Court found that the applicant’s extradition to the United States was legally admissible in respect of the charges of wire fraud and major fraud against the United States. These offences carried maximum sentences of twenty and ten years in prison respectively. The court established that the offences in question were listed in the Extradition Treaty between the United States and Estonia, signed in 1923, and were also punishable in Estonia under the Penal Code. In respect of the charges of bribery and money laundering extradition was not admissible, as these offences were not listed in the Extradition Treaty. The County Court found that the applicant’s detention was justified and noted that he had been taken into custody in accordance with its decision of 18 September 2008. It extended the applicant’s detention until his extradition or until a decision to refuse to extradite him was made. It also noted that there was nothing to rule out the applicant’s extradition, that the general conditions for his extradition were fulfilled and that an arrest warrant had been issued in respect of the applicant whereas the court had no reason to doubt its validity.
9. Although according to the Code of Criminal Procedure (Kriminaalmenetluse seadustik) no appeal lay against the County Court’s decision, the applicant lodged an appeal with the Tallinn Court of Appeal. He complained, inter alia, that the County Court’s decision had contained no reasons for his detention in breach of Article 451 § 2 (5) of the Code of Criminal Procedure. On 29 December 2008 the Court of Appeal refused to examine it. On 15 May 2009 the Supreme Court dismissed an appeal against the appellate court’s decision. It agreed with the Court of Appeal that the County Court’s decision concerning the legal admissibility of the applicant’s extradition was not subject to appeal and rejected the applicant’s argument that the lack of an opportunity to appeal against the first-instance court’s decision was unconstitutional.
10. In the meantime, on 20 November 2008, the Government decided to extradite the applicant.
11. On 1 December 2008 the Tallinn Administrative Court quashed the Government’s decision, mainly because of insufficient reasoning and failure to consider all relevant circumstances.
12. On 12 December 2008 the Government took a new decision to extradite the applicant in respect of the charges of major fraud against the United States and wire fraud. The extradition was refused in respect of the remaining charges. The Government, in taking their decision, considered the applicant’s written objections, records of his three meetings with officials of the Ministry of Justice, and the applicant’s and his lawyers’ submissions made before the Tallinn Administrative Court, as well as a medical expert opinion.
13. In their decision, the Government addressed the legal grounds for the applicant’s extradition (including whether the statutory limitation period had expired and whether the possibly harsher sentence in the United States prevented the applicant’s extradition) and weighed the public and international interests against the applicant’s fundamental rights. They considered, inter alia, that it was not possible to try the applicant in Estonia, but that in the event of his conviction in the United States he could request to be transferred to Estonia to serve his sentence. They were of the opinion that the fact that the applicant had a child and a sick father in Estonia did not prevent his extradition. In respect of the applicant’s health, the Government relied on a medical expert opinion, which stated that he was able to travel to the United States and stand trial, despite the fact that he was suffering from hypertension.
14. The applicant lodged a complaint against the Government’s decision with the Tallinn Administrative Court. He also requested suspension of the proceedings pending the outcome of the proceedings concerning the legal admissibility of his extradition (see paragraphs 8 and 9 above).
15. On 29 December 2008 the Tallinn Administrative Court dismissed the applicant’s complaint against the Government’s extradition decision. In respect of the suspension request it noted that there were no other pending proceedings since the County Court’s decision on legal admissibility of extradition was not subject to appeal.
16. The applicant appealed, and reiterated to the Tallinn Court of Appeal the request he had previously made to the Administrative Court, for the proceedings to be suspended. On 15 January 2009 the Court of Appeal suspended the proceedings as requested by the applicant. After the resumption of the proceedings, on 19 June 2009, the Tallinn Court of Appeal upheld the Administrative Court’s judgment of 29 December 2008. On 5 August 2009 the Supreme Court declined to hear the applicant’s appeal.
2. Request for review of the lawfulness of detention
17. In the meantime, on 25 May 2009, the applicant requested that the Harju County Court “review the reasons for [his] arrest (vahistuse põhjendatuse kontroll) (and release [him])”. He noted that he had been in custody for more than eight months without having been extradited or his extradition having been refused. He argued that the rules of the Code of Criminal Procedure governing pre-trial detention should be applied. According to these provisions, the maximum duration of pre-trial detention was six months and this could only exceptionally be extended beyond that limit. No such extension had been ordered in his case. He also disputed the existence of a reasonable suspicion that he had committed an offence and argued that there were no grounds for his detention such as a risk that he would abscond or reoffend.
18. On 1 June 2009 a Harju County Court judge replied by letter as follows:
“Chapter 19 of the Code of Criminal Procedure, which governs extradition proceedings, does not provide for review of reasons for remand in custody. By a decision of a preliminary investigation judge of the Harju County Court, dated 13 November 2008, [the applicant’s] extradition to the United States of America was declared legally admissible in part. At the same time [the applicant’s] remand in custody was extended until his extradition to the United States of America or until a decision to refuse extradition; the said decision has become final. I am therefore returning to you the request sent to the Harju County Court.”
19. The applicant appealed, relying upon, inter alia, Article 5 § 4 of the Convention requiring periodic review of the lawfulness of detention in cases where its grounds might change over time.
20. The appeal was dismissed by a decision of the Tallinn Court of Appeal on 25 June 2009. The Court of Appeal agreed with the applicant that the County Court’s letter had to be considered a decision, as it concerned the resolution of a procedural matter, and that a request sent to the court should not have been returned by letter. As to the substance of the complaint, the Court of Appeal endorsed the County Court’s decision to refuse to examine the request because of a lack of procedural grounds for it to do so in Chapter 19 of the Code of Criminal Procedure and, in particular, in Article 447 of the Code, which governs provisional arrest in connection with extradition. The court noted that according to that provision, detention following provisional arrest in connection with extradition proceedings must not be longer than one year.
21. On 22 July 2009 the Supreme Court refused to examine the applicant’s appeal as, under the Code of Criminal Procedure, the Court of Appeal’s decision could not be appealed against.
22. In the meantime, on 10 July 2009, the applicant asked the Harju County Court “to take a decision on the question of [his] release from detention”. He relied on Article 447 § 7 of the Code of Criminal Procedure, which set one year as the maximum length of custody following provisional arrest related to extradition proceedings. The applicant asked the court to issue a ruling explicitly providing in its operative part that he would be released from custody on 17 September 2009.
23. On 20 July 2009 the Harju County Court refused to examine the request. It noted that the applicant’s custody had a legal basis in Article 447 of the Code of Criminal Procedure and was in compliance with Article 20 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) and Article 5 of the European Convention on Human Rights. Furthermore, it noted that Article 447 § 7 prohibited the keeping of a person in custody for more than one year following provisional arrest. In the applicant’s case the one-year period had not yet elapsed.
24. On 10 August 2009 the Tallinn Court of Appeal dismissed an appeal brought by the applicant against the above-mentioned decision. It considered that in its decision of 13 November 2008 the County Court could not have specified the final date of the applicant’s custody, as it would not have been possible to foresee the exact date of his extradition. The Court of Appeal noted that the applicant was to be released if he had not been extradited by 17 September 2009, despite the lack of any explicit order to that effect in the operative provisions of the decision of 13 November 2008.
3. Subsequent developments
25. In the meantime, on 4 August 2009, the applicant requested that the Government quash its decision of 12 December 2008 to extradite him. The applicant argued that owing to the five-year limitation period applicable under Estonian law his prosecution had become time-barred on 1 April 2009: his extradition was therefore no longer permissible. In a complaint of 11 August 2009 lodged with the Tallinn Administrative Court, the applicant asked the court to oblige the Government to decide that the decision to extradite him should be quashed. He also applied for a stay of the extradition as an interim measure.
26. On 14 August 2009 the Tallinn Administrative Court stayed the applicant’s extradition until 20 September 2009. On 24 August 2009, on an appeal by the Government, the Tallinn Court of Appeal quashed the Administrative Court’s decision. It considered that the applicant’s indictment on 26 November 2007 and an arrest warrant issued on 27 November 2007 by the authorities of the United States had interrupted the limitation period.
27. In the meantime, by a decision of 18 August 2009, the Government refused the applicant’s request of 4 August 2009 for the decision to extradite him to be quashed. On 24 August 2009 the applicant amended his previous complaint to the Administrative Court (see paragraph 25 above), additionally challenged the Government’s latest decision, and again applied for an interim measure.
28. On 25 August 2009 the applicant was handed over to the authorities of the United States and removed from Estonia.
29. On 11 March 2010 the applicant pleaded guilty to major fraud against the United States in a plea bargain made in the United States District Court for the Middle District of North Carolina. On 17 June 2010 the District Court sentenced him to thirty-three months’ imprisonment
30. According to the Government, in his sentence in the United States, the different periods the applicant had spent under arrest were taken into account, including the time spent under provisional arrest in Estonia.
31. On 8 February 2011 the applicant was released: he returned to Estonia on 4 March 2011.
B. Relevant domestic law
32. Part 2 of Chapter 19 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) sets out the procedure for extradition. A request for extradition is sent through the Ministry of Justice and the State Prosecutor’s Office to the Harju County Court, which verifies the legal admissibility of the extradition. Thereafter, in the case of an Estonian national, it is for the Government to decide on his or her extradition. That decision can be challenged before the administrative courts.
33. Article 447 of the Code of Criminal Procedure contains rules on the provisional arrest and subsequent detention of a person to be extradited. Paragraph 4 of Article 447 provides that provisional arrest must not be applied if legal impediments to the extradition have become evident. Paragraph 7 of Article 447, as in force at the material time, provided that a person could not be kept in custody for more than one year following provisional arrest.
34. Article 452 § 7 provides that if extradition is refused, the person concerned is released from custody.
35. Article 451 set out rules for the content of a court’s decision concerning the legal admissibility of extradition. Paragraph 2 (5) stipulates that the decision must contain a ruling concerning detention and its reasons.
36. Article 385, as in force at the material time, stipulated that no appeal lay against the decision concerning the legal admissibility of extradition (Article 451).
COMPLAINTS
37. The applicant’s complaints can be summarised as follows:
(a) He complained under Article 5 §§ 1 (f) and 4 of the Convention that: his deprivation of liberty had been unjustified; he had been deprived of his liberty for an undetermined period; the decision whereby his detention had been extended had not been able to be appealed against; and there was no procedure available in which he could have had the lawfulness of his detention reviewed.
(b) He also complained under Article 8 that the authorities had failed to consider his personal and family situation when taking the decision to extradite him and about a number of issues in the extradition proceedings: the impugned proceedings had been set in motion without a clear extradition request from the United States of America; the applicant’s defence rights and his right to be heard had been infringed; Estonian criminal law had been applied retroactively; his extradition should have been excluded because of the expiry of the statutory limitation period under Estonian law; and there had been no opportunity to appeal against the decision on the legal admissibility of his extradition. He relied upon the preamble to the Convention and Article 6 § 1 and 3 (b), (c), Article 7 § 1 and Article 13 of the Convention.
THE LAW
A. Alleged violation of Article 5 §§ 1 (f) and 4 of the Convention
38. The applicant complained that the deprivation of his liberty, which had been ordered by the Harju County Court on 18 September 2008 and extended on 13 November 2008, had been unjustified. In the latter decision no time-limit for his detention had been specified and it had not been possible to appeal against that decision. Moreover, throughout the period of his detention he had been unable to have the lawfulness of his detention reviewed by a court, because no pertinent procedure existed in domestic law. The applicant relied on Article 5 §§ 1 (f) and 4 of the Convention, which read 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...
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.”
1. Article 5 § 1 (f)
39. The Court notes that the applicant’s detention was initially ordered for two months by the Harju County Court on 18 September 2008 and that this decision was upheld by the Tallinn Court of Appeal on 8 October 2008. His detention was subsequently extended by the Harju County Court’s decision of 13 November 2008. The Court observes that the applicant lodged his application with it on 13 July 2009, that is more than six months after the final domestic decision in respect of his deprivation of liberty. Accordingly, the complaint, in so far as it specifically concerns the above-mentioned decisions, has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
40. However, the Court considers that the complaint under Article 5 § 1 (f) can also be understood to concern the applicant’s deprivation of liberty as a continuing situation. In such a case, the time-limit provided for in Article 35 § 1 expires six months after the end of the situation concerned (see, for example, Báňas v. Slovakia, no. 42774/04, § 38, 12 February 2008; Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 159, ECHR 2009; and Bazjaks v. Latvia, no. 71572/01, § 60, 19 October 2010). The Court observes that the application in the present case was lodged at the time of the applicant’s detention and that it therefore cannot be rejected on that ground.
41. As to the substance, the Court reiterates that 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 (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009‑...). All that is required under it is that “action is being taken with a view to deportation”. It is therefore 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; Slivenko v. Latvia [GC], no. 48321/99, § 146, ECHR 2003‑X; and Sadaykov v. Bulgaria, no. 75157/01, § 21, 22 May 2008). 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) (see A. and Others v. the United Kingdom, § 164, and Chahal, § 113, both cited above). In other words, the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008, and Raza v. Bulgaria, no. 31465/08, § 72, 11 February 2010).
42. In the present case, the Court observes that the applicant’s detention was ordered by competent courts under Article 447 of the Code of Criminal Procedure. It is satisfied that the detention was lawful within the meaning of Article 5 § 1. In relation to the length of the detention and the question of whether the authorities displayed the required diligence, the Court notes that the applicant was kept in custody from 17 September 2008 until 25 August 2009, that is, for slightly more than eleven months. The Court notes that this was less than the maximum duration of one year allowed under Article 447 of the Code of Criminal Procedure. The Court takes note of the fact that the Government’s first decision to extradite the applicant was taken on 20 November 2008, and after that decision was quashed upon the applicant’s complaint, the Government took a new, more thoroughly reasoned decision on 12 December 2008. Thus, it took only a few months for the Government to decide on the applicant’s extradition. Subsequently, the applicant challenged the Government’s decision at three court levels up to the Supreme Court, which declined to hear his appeal on 5 August 2009. Thus, the court proceedings lasted for less than eight months, which cannot be considered excessive considering, inter alia, the volume of the applicant’s submissions, the importance and complexity of the subject matter and the thoroughness with which the authorities dealt with it. Moreover, the Court notes that the judicial examination of the extradition decision in the administrative courts was suspended for about four months at the applicant’s request (see paragraph 16 above), pending the outcome of his unsuccessful attempt to appeal, in separate proceedings and without any basis in law, against the Harju County Court’s decision on legal admissibility of his extradition (see paragraph 9 above).
43. The Court concludes that the authorities acted with due diligence and that the grounds for the applicant’s detention – action taken with a view to his extradition – remained valid for the whole period of his detention.
44. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Article 5 § 4
(a) The parties’ submissions
45. The applicant argued that he had been deprived of his liberty for an undetermined period and there had been no procedure available by which he could have had the lawfulness of his detention reviewed. The courts had refused to consider his request of 25 May 2009 for a review of the reasons for his arrest and release. Because no such procedure was available, compliance by the authorities with the one-year maximum length of custody in extradition proceedings (Article 447 § 7 of the Code of Criminal Procedure) had not been ensured.
46. The Government argued that the complaint was manifestly ill-founded. Citing the principle of subsidiarity and pointing out that the applicant’s detention had been ordered by a court, confirmed on appeal and also subsequently extended by a court, the Government called on the Court to declare the application inadmissible.
47. As to the substance, the Government argued that the applicant’s arrest had been ordered by a court, it had a legal basis and was in conformity with Article 5 § 1 (f) of the Convention. The applicant’s appeal against the order of the first-instance court (18 September 2008) had been decided by a court of appeal (8 October 2008). Furthermore, his detention had been extended by a first-instance court on 13 November 2008. Pursuant to Article 447 § 7 of the Code of Criminal Procedure the period of provisional arrest could not exceed one year.
48. The Government contended that the scope of the obligations under Article 5 § 4 of the Convention was not identical for all kinds of deprivation of liberty. While in domestic criminal proceedings grounds for detention could cease to exist, the situation was different in extradition proceedings. The Government noted that after the extension of the detention on 13 November 2008 the applicant had been kept in custody for approximately nine more months (until 25 August 2009) and pointed out that the Court had accepted, in cases of a person of unsound mind, a period of nine months between judicial decisions (see Herczegfalvy v. Austria, 24 September 1992, § 77, Series A no. 244).
(b) The Court’s assessment
49. The Court reiterates that Article 5 § 4 of the Convention entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. The scope of review required under Article 5 § 4 is not identical for every kind of deprivation of liberty; this applies notably to the extent of the judicial review afforded. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1. The notion of “lawfulness” in Article 5 § 1 does not refer solely to the obligation to conform to the substantive and procedural rules of national law; it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (see A. and Others v. the United Kingdom, § 202, and Chahal, §§ 127-29, both cited above, see also the principles summarised in paragraph 41 above).
50. The Court considers that in the present case the review of the lawfulness of the applicant’s detention was incorporated (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12) in the Harju County Court’s decision of 18 September 2008 by which his remand in custody for two months was ordered (see paragraph 6 above). This decision was upheld by the Tallinn Court of Appeal on 8 October 2008. The review of the lawfulness of the detention can further be seen as having been incorporated in the Harju County Court’s decision of 13 November 2008 by which the applicant’s detention was extended (see paragraph 8 above). The Court notes that by the latter decision no time-limit was set for the applicant’s detention – the County Court ordered his detention until his extradition or until a decision to refuse to extradite him. Despite the lack of a fixed time-limit in the latter judicial decision, the Court is satisfied that Article 447 § 7 of the Code of Criminal Procedure set one year as the maximum length of detention pending extradition and it notes that in fact the applicant’s detention in Estonia came to an end on 25 August 2009 (eleven months and one week after his arrest), when he was extradited.
51. The Court next proceeds to examine whether in the present case the applicant was entitled to initiate proceedings for review of the lawfulness of his detention under Article 5 § 4, bearing in mind the judicial review incorporated in the initial decisions and the maximum period of detention having been established by law.
52. The Court has found in its case-law under Article 5 § 4 concerning “persons of unsound mind” that such persons detained for an indefinite or lengthy period are in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of their detention (see Stanev v. Bulgaria [GC], no. 36760/06, § 171, 17 January 2012). Long intervals in the context of automatic periodic review may give rise to a violation of Article 5 § 4 (see, among others, Herczegfalvy, cited above, § 77). In cases of detention on remand falling under Article 5 §§ 1 (c) and 3, periodic review “at short intervals” has been called for owing to the strictly limited duration of such detention (see Assenov and Others v. Bulgaria, 28 October 1998, § 162, Reports of Judgments and Decisions 1998‑VIII, and Bezicheri v. Italy, 25 October 1989, § 21, Series A no. 164). Thus, the question that needs to be answered in the present case is whether the applicant’s request of 25 May 2009 for the review of the lawfulness of his arrest and release was lodged after the passing of a “reasonable interval” from the judicial decisions authorising his detention.
53. In assessing the reasonableness of the period after which the applicant sought to have the lawfulness of his detention reviewed, the Court has had regard to the nature of the review required under Article 5 § 4 in respect of the particular kind of deprivation of liberty in question as well as the specific circumstances of the case. The scope of the review (see paragraph 49 above) is, in particular, related to the circumstances that may evolve and the assessment of which may change over time, giving rise to a need for a periodic review (compare Gaforov v. Russia, no. 25404/09, § 176, 21 October 2010). Some grounds for the deprivation of liberty and some circumstances of a particular case may call for a more frequent review of the lawfulness of detention than others. In respect of the review of the lawfulness of detention pending extradition, as in the present case, the Court is of the view that the scope of the review need not be as wide and as frequent as, for example, in cases of deprivation of liberty under Article 5 § 1 (c).
54. The Court observes that the judicial decisions concerning the applicant’s remand in custody were made on 18 September, 8 October and 13 November 2008. The courts taking these decisions found that the ongoing extradition proceedings warranted the applicant’s detention. By the last decision the applicant’s detention was extended until his extradition or until a decision to refuse to extradite him was made. The applicant’s request, on 25 May 2009, for review of the lawfulness of his detention was made more than six months after the last judicial decision ordering his custody. By that time, his extradition had already been decided by the Government (on 12 December 2008) and his continuing detention mainly resulted from his challenging the Government’s extradition decision and also his attempt to challenge the Harju County Court’s decision concerning the legal admissibility of his extradition.
55. Keeping in mind that the rather limited scope of the review of the lawfulness of detention required under Article 5 § 4 in extradition cases – which does not extend, for example, to the questions whether the detention was “necessary” for the prevention of crime or fleeing (see paragraphs 41 and 49 above) –, the Court notes that the applicant has not called into question that his extradition proceedings were in progress at the time he sought to have the lawfulness of his detention reviewed. The Court further notes that the extradition proceedings were under permanent control of the judicial authorities – the Tallinn Administrative Court delivered its judgment on the Government’s extradition decision on 29 December 2008, the Tallinn Court of Appeal delivered its judgment on the applicant’s appeal on 19 June 2009 and the Supreme Court’s decision not to hear the applicant’s appeal was dated 5 August 2009. In the meantime, the Court of Appeal had suspended the proceedings at the applicant’s request pending the outcome of separate proceedings where he sought to challenge the Harju County Court’s decision of 13 November 2008. In these proceedings, the Tallinn Court of Appeal made its decision on 29 December 2008 and the Supreme Court on 15 May 2009. The Court is satisfied that the judicial review of the lawfulness of the applicant’s detention was in substance also incorporated in this sequence of judicial decisions which all dealt with one aspect or another of the lawfulness of the applicant’s extradition. Had the courts found that the applicant’s extradition had become legally impossible – as he continued to argue –, or had the authorities been unable to conclude his extraction within one year from his arrest, he would have been released pursuant to Article 447 of the Code of Criminal Procedure.
56. In conclusion, having regard to the circumstances of the present case where the applicant’s detention pending extradition was ordered and extended by judicial authorities, his extradition was decided speedily by the Government and in the subsequent judicial proceedings initiated by the applicant the courts at no point cast doubt on the lawfulness of his extradition and considering, furthermore, the speed with which the authorities dealt with the matter as well as the fact that the maximum duration of the applicant’s detention was set at one year by law, the Court considers that the review of the lawfulness of the applicant’s detention was in conformity with the requirements of Article 5 § 4 of the Convention.
57. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Other alleged violations of the Convention
58. The applicant also made a number of further complaints related to his extradition to the United States of America. He cited the preamble to the Convention and Article 6 §§ 1 and 3 (b), (c), Article 7 § 1 and Articles 8 and 13 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application 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.
Søren NielsenNina Vajić
RegistrarPresident
Full & Egal Universal Law Academy