AS TO THE ADMISSIBILITY OF
Application No. 17811/91
by Mihail VARFOLOMEJEV
against Finland
The European Commission of Human Rights sitting in private
on 2 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 August 1990
by Mihail VARFOLOMEJEV against Finland and registered on 15 February
1991 under file No. 17811/91;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the Soviet Union, born in 1969
and resident in Nikolski near Leningrad. Before the Commission he is
represented by Mr. Ulf Månsson, a lawyer practising in Helsinki.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
In 1986 the applicant was called up for military service. In
the Soviet Union there is no right to exemption from military service
on the ground of conscientious objection. The applicant refused
military service, referring to his pacifist views and the Soviet
military involvement in Afghanistan. As a result he was threatened
with punishment and subsequently taken from his home to a mental
hospital, where he was detained for 17 days. At the hospital he was
diagnosed a paranoid schizophrenic. At his discharge he received a
medical certificate prescribing that he was to remain under constant
supervision by his family and that, whenever necessary, he could be
re-detained.
The authorities subsequently, without hearing the applicant,
put a stamp in his military passport stating that he was an invalid of
the first degree. As a result he was not allowed to work, to
study, to marry, to found a family, to vote or to participate in
political activities, nor could he be granted a passport for
travelling abroad.
In order to obtain work the applicant subsequently forged his
military passport to indicate that he was an invalid of the third
degree.
On 24 June 1990 the applicant hijacked a Soviet aeroplane on
its way from Tallinn to Helsinki demanding that it land in Sweden.
The plane landed in Helsinki, where the applicant gave up and was
arrested. He was found to have been unarmed during the hijacking.
The applicant immediately lodged a request with the Ministry
of the Interior that he be granted political asylum in Finland,
referring to his treatment in the Soviet Union. He further presented
his military passport, alleging that the forgery of his invalidity
classification could easily be noticed.
On 25 June 1990 the Soviet Government, referring to the 1974
Bilateral Agreement between Finland and the Soviet Union on the
Prevention of Hijacking of Civil Aircraft (hereinafter "the 1974
Agreement"), requested the applicant's extradition, as he was
suspected of having hijacked an aeroplane as well as having illegally
left the Soviet Union. In an annex to the request issued by a K.G.B.
official it was stated that the applicant suffered from paranoid
schizophrenia and was an invalid of the first degree.
On 27 June 1990 the applicant was remanded for trial by the
City Court (raastuvanoikeus, rådstuvurätten) of Helsinki suspected of
having hijacked an aeroplane. The Court had regard to the applicable
penalty for hijacking, the risk that the applicant might abscond and
the need for ensuring his presence at the trial. The City Court
decided that the trial would take place before the District Court
(kihlakunnanoikeus, häradsrätten) of Vantaa on 24 July 1990.
On 2 July 1990 the Ministry of Justice asked the Supreme Court
(korkein oikeus, högsta domstolen) to give its opinion on the
extradition request.
On 3 July 1990 the United Nations High Commissioner for
Refugees submitted an opinion to the Ministry of the Interior on
the considerations UNHCR would normally take into account in cases
such as the applicant's. It stated inter alia
"... As to exclusion, hijacking is generally regarded as a
serious crime. However, there have been cases where the
refugee status of an applicant has been recognized even
where the applicant hijacked a plane to leave the country of
origin. These cases have differed in their factual
situations but have in common the absence of any serious
violence accompanying the hijacking and the fact that the
hijacking was the only available means of escaping
persecution on the grounds of political opinion. In other
words, hijacking is not always a serious crime or a
non-political crime in the sense meant in the exclusion
clauses. It is not automatically a bar to refugee status.
Where there is a well-founded fear of persecution on
political grounds, where escape from persecution was not
reasonably possible by any other means and where no violence
or serious danger to others accompanied the act, the
hijacking of a plane in order to leave [the country of origin]
should not render an otherwise clearly includable person
excluded from refugee status..."
Between 5 an 9 July 1990 the applicant, at his own request, was
examined separately by a specialist in internal medicine, another
doctor, a psychologist and a social worker. The examination was
directed by a Chief Psychiatrist. The applicant was considered
mentally healthy, and there was no indication that he had previously
suffered from paranoid schizophrenia. However, he was found to suffer
from a personality disturbance with passive-aggressive features.
On 24 July 1990 the District Court, at the prosecutor's
request, postponed the trial to 6 August 1990 stating that under
Sections 2 and 7, para. 3, of the Act on the Returning in Certain Cases
of Persons Guilty of Hijacking Civil Aircraft (laki 336/75
siviili-ilma-aluksen kaappaukseen syyllistyneiden henkilöiden
palauttamisesta, lag 336/75 om återförande i vissa fall av personer
som gjort sig skyldiga till kapning av civilt luftfartyg; hereinafter
"the 1975 Act") the presentation of charges in Finland was a
subsidiary measure in relation to the extradition proceedings and
would thus come into play where no extradition was granted. As the
examination of the extradition request was still pending there was a
particularly weighty reason for the postponement of the trial. It
further had regard to the serious character and the public importance
of the case and the fact that the prosecutor had received the
pre-trial records only on 18 July 1990, the short time not allowing
him to consider the evidence and to prepare the indictment.
On 2 August 1990 the Ministry of the Interior rejected the
applicant's request for asylum, stating that he had not submitted any
plausible evidence showing that he had been persecuted in the Soviet
Union because of his political views, or was in need of protection.
Furthermore, according to the United Nations Convention Relating to the
Status of Refugees he had no right to asylum, since this Convention
was not to be applied to a person suspected of having committed a
serious non-political crime outside the country he has fled from. The
decision was not subject to appeal.
On 6 August 1990 the District Court, at the prosecutor's
request, postponed the trial to 17 August 1990, as the examination of
the extradition request was still pending and the applicant could in any
case have been detained under the Extradition Act (laki 456/70
rikoksen johdosta tapahtuvasta luovuttamisesta, lag 456/70 om
utlämning för brott) pending the outcome of the extradition procedure.
Having regard to the risk that the applicant might abscond, the
District Court further rejected his request to be released from
detention on remand.
On 9 August 1990 the Supreme Court delivered its opinion on
the extradition request, noting inter alia that under the applicable
provision in the Estonian Penal Code the applicant could not be
sentenced to capital punishment, as the hijacking had caused no
casualties. It further found that
"having regard to the facts submitted neither the [United
Nations] Covenant on Civil and Political Rights, nor the
European Convention for the Protection of Human Rights and
Fundamental Freedoms constitute an obstacle to the
extradition of Varfolomejev to the Soviet Union".
The Supreme Court found, however, that extradition could not
be granted in regard to the applicant's offence of having illegally
left the Soviet Union.
On 17 August 1990 the District Court, at the prosecutor's
request, again postponed the trial, this time to 31 August 1990. The
applicant's request to be released from detention on remand was
rejected. The District Court referred to the reasons stated in its
decision of 6 August 1990.
On 20 August 1990 the Ministry of Justice decided to
extradite the applicant to the Soviet Union under the condition that
without the consent of the Finnish Ministry of Justice the applicant
could not be prosecuted or punished for any offence other than the
hijacking committed prior to his extradition, nor be further
extradited to a third country. The extradition decision was not
subject to appeal. Previously, an agreement had been reached with the
Soviet authorities that a Finnish psychiatrist would be allowed to
participate in a possible mental examination to be conducted on the
applicant in the Soviet Union.
On 23 August 1990 the applicant was handed over to the Soviet
authorities. Subsequently, he was taken to a prison in Tallinn on the
basis of a previous decision to remand him for trial. A Finnish
psychiatrist participated in a subsequent mental examination
conducted on the applicant, at which he was again found to be
mentally healthy.
The trial took place on 7 and 8 January 1991 before the Court
of the Region of Meri. The applicant was convicted of hijacking and
sentenced to four years' suspended imprisonment. He was immediately
released. The minimum penalty applicable on the hijacking offence
was five years' imprisonment, but the Court made an exception in the
applicant's case, having regard to the extenuating circumstances, that
is his detention in the mental hospital, the incorrect psychiatric
diagnosis and the invalidity classification. It was further noted
that the applicant had been deprived of his human rights such as the
right to work and to study. The public prosecutor appealed against
the judgment to the Supreme Court of Estonia. On 15 April 1991 the
judgment was upheld after a hearing, at which the prosecutor argued
that the applicant's diagnosis of 1986 should be considered valid.
The applicant's invalidity classification has not been revoked
by the Expert Commission for the Establishment of Fitness for Work.
He is being paid invalidity pension, which he refuses to receive.
Relevant domestic law and practice
According to the 1974 Agreement a person suspected of having
hijacked a civil aeroplane registered in one of the two countries and
which has landed in the other country shall be returned to the country
of registration if the suspect is a citizen of that country. However,
according to Article 11 of the 1974 Agreement the provisions of the
Agreement are without prejudice to the rights and considerations of
a Contracting State in matters regarding inter alia the right to
asylum. Extradition based on the 1974 Agreement is regulated by the
1975 Act, as well as by the Extradition Act. In extradition cases
which fall under the 1975 Act Sections 13 to 25 and 34 of the
Extradition Act are, insofar as they are applicable, to be applied.
Under Section 2 of the 1975 Act measures shall be taken
immediately upon a request for extradition. Under Section 7 para. 3
of the same Act the Ministry of Justice shall, provided that it does
not allow an extradition, refer the matter to the prosecutor for the
purpose of presenting charges.
Section 16 para. 1 of the Extradition Act reads:
"If the person whose extradition is requested, during
the investigation or in a petition submitted to the
Ministry of Justice before the decision, alleges that
lawful conditions for the extradition are not fulfilled, the
Ministry shall, if the extradition request is not immediately
rejected, before its decision ask for the opinion of the
Supreme Court. The Ministry may also otherwise ask for an
opinion, if necessary."
Section 17 reads:
"The Supreme Court examines, having regard to Sections 1-10
or other provisions in international treaties binding upon
Finland, whether the request for extradition may be granted.
If the Supreme Court finds an obstacle to the extradition
the request may not be granted."
Under Section 12 para. 4 of the Extradition Act the Government
may, when granting an extradition request, state the conditions under
which the extradition shall take place. However, in cases which fall
under the 1975 Act the Government may only state conditions in order
to prevent the extradited person from being prosecuted or punished for
any offence other than the hijacking committed prior to his extradition
or the further extradition of the person to a third country.
According to Chapter 1, Section 21, of the Coercive Criminal
Investigation Means Act (pakkokeinolaki 450/87, tvångmedelslagen
450/87) the Court shall, when remanding a suspect for trial
and provided the examination of the charges has not already started,
decide when the trial is to take place. It has to take place within
four weeks, but the Court may for particularly weighty reasons
postpone the trial for two weeks at a time, provided this is requested
by the prosecutor before the day of the trial. The postponement is
not subject to ordinary appeal. However, under Chapter 1, Section 27
para. 2 of same Act it is possible to lodge an extraordinary appeal
(kantelu, klagan) on the basis of an alleged procedural fault by the
Court.
COMPLAINTS
1. The applicant complains that the denial of asylum in Finland
and his extradition violated Article 3 of the Convention. He submits
that, although he has always been mentally sound, he has already been
detained against his will in a mental hospital and subjected to
inhuman and degrading treatment. Abuse of psychiatry in order to
suppress dissidents still exists in the Soviet Union, according to
inter alia Amnesty International. When asylum was refused it was
known to the Finnish authorities that the psychiatric diagnosis and
the invalidity classification were still considered valid in the
Soviet Union, although a mental examination in Finland had shown that
the applicant was not, and had never been, mentally ill. The
Government took a great risk that he could again be subjected to
treatment contrary to Article 3 of the Convention, as they did not
stipulate, as a condition for the extradition, that the diagnosis as a
paranoid schizophrenic and the invalidity classification be revoked.
Moreover, the revocation as such of the diagnosis does not guarantee
that the invalidity classification will be changed, as a decision in
the latter regard is made by completely separate authorities.
Especially having regard to the situation in the beginning of 1991, of
which there were clear indications already at the time of the
extradition, there were no guarantees that the abuse of psychiatry in
the Soviet Union would end.
2. The applicant further complains that the District Court's
decisions to postpone his trial and to keep him remanded for trial,
although no charges had been presented, violated Article 5 paras. 2, 3
and 4, and Article 6 paras. 1 and 3 (a) of the Convention. The
pre-trial investigation was concluded and the records were ready for
examination already on 12 July 1990. However, no charges were
presented before the District Court, although the applicant continued
to be detained on remand. The applicant furthermore claims
compensation from the Government under Article 5 para. 5 of the
Convention.
3. The applicant finally complains that the reasons invoked by
the prosecutor in support of the requests for a postponement of the
trial violated Article 18 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 August 1990 and registered
on 15 February 1991.
On 3 August 1990 the applicant requested that the Commission
under Rule 36 of its Rules of Procedure indicate to the Government
that the decision on the extradition or, alternatively, the
enforcement of such a decision, be suspended.
On 20 August 1990 the Acting President of the Commission
decided to reject the request.
THE LAW
1. The applicant complains that the denial of asylum and his
extradition violated Article 3 (Art. 3) of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that according to its established
case-law the right to asylum and the right not to be expelled or
extradited are not as such included among the rights and freedoms
mentioned in the Convention but that the expulsion or extradition of a
person may nevertheless, in certain exceptional circumstances, raise
an issue under the Convention and in particular under Article 3 (Art.
3). In the Soering case, the European Court of Human Rights stated as
follows (Eur. Court H.R., Soering judgment of 7 July 1989, Series A
No. 161, pp. 35-36, para. 91):
"In sum, the decision by a Contracting State to extradite a
fugitive may give rise to an issue under Article 3 (Art. 3), and hence
engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that
the person concerned, if extradited, faces a real risk of
being subjected to torture or to inhuman or degrading
treatment or punishment in the requesting country. The
establishment of such responsibility inevitably involves an
assessment of conditions in the requesting country against the
standards of Article 3 (Art. 3) of the Convention."
According to the Court's case-law, ill-treatment, including
that in connection with punishment, must attain a minimum level of
severity if it is to fall within the scope of Article 3 (Art. 3) of the
Convention. The assessment of this level depends on all the
circumstances of the case, such as the nature and context of the
treatment or punishment, the manner and method of its execution, its
duration, its physical or mental effects and, in some instances, the
sex and state of health of the victim (above-mentioned Soering
judgment, p. 39, para. 100). For punishment or for treatment
associated with it to be "inhuman" or "degrading", the suffering or
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation inherent in a given form of
legitimate punishment (Eur. Court H.R., Tyrer judgment of 25 April
1978, Series A No. 26, pp. 14-15, paras. 29-30).
The Commission further recalls that the existence of a risk of
ill-treatment in a case of extradition should be assessed primarily
with reference to those facts which were known or ought to have been
known to the Contracting State at the time of the extradition.
However, regard can also be had to information which has come to light
after the extradition, as such information may be of value in
confirming or refuting the appreciation made by the Contracting State
or the well-foundedness of the fears of the extradited person (cf. Eur.
Court H.R., Cruz Varas and Others judgment of 20 March 1991, para. 76,
to be published in Series A as No. 201).
In the present case the Commission observes that the
Government, in their extradition decision, noted the Supreme Court's
opinion according to which under Estonian law the applicant could not
be sentenced to death. Moreover, the Government noted the Supreme
Court's finding that the Convention did not hinder extradition. It
appears from the file that an agreement had been reached with the
Soviet authorities that a Finnish psychiatrist be allowed to
participate in a possible mental examination in the Soviet Union.
This agreement was subsequently complied with by the Soviet
authorities to which the result of the examination carried out in
Finland had been submitted. It further appears from the file that the
Government, in connection with the extradition, requested to receive
information regarding the further proceedings in the applicant's case
following his extradition. Thus, the Government took considerable
care in order to preclude a real risk that the applicant would be
exposed to treatment contrary to Article 3 (Art. 3) of the Convention.
In view of the above the Commission considers that the information
available to the Finnish Government at the time of the extradition
with regard to the personal situation of the applicant and the
development in the Soviet Union did not show that the applicant, upon
his extradition, would run a substantial risk of being exposed to such
treatment. The information which has subsequently been provided by
the applicant's lawyer about the applicant's trial and present
situation is not such as to refute the appreciation made by the
Government at the time of the extradition.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that the decisions to postpone
his trial and to keep him remanded for trial, although no charges were
presented, violated Article 5 paras. 2, 3 and 4, and Article 6 paras.
1 and 3 (a) (Art. 5-2, 5-3, 5-4, 6-1, 6-3-a) of the Convention. He
furthermore claims to be entitled to compensation from the Finnish
Government under Article 5 para. 5 (Art. 5-5) of the Convention.
(a) The Commission has first considered the complaint under
Article 5 para. 2 (Art. 5-2) of the Convention, which reads:
"Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest
and of any charge against him."
Article 5 para. 2 (Art. 5-2) of the Convention contains the
elementary safeguard that any person arrested should know why he is
being deprived of his liberty. Whilst the information in this regard
must be conveyed "promptly" it need not be related in its entirety by
the arresting officer at the very moment of the arrest. Whether the
content and promptness of the information conveyed were sufficient is
to be assessed in each case according to its special features (Eur.
Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990,
Series A No. 182, p. 19, para. 40, with further reference).
The Commission considers that, in view of the circumstances,
the applicant must have been immediately aware of the reasons for his
arrest, as well as of the nature of the charges against him.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
(b) The Commission has secondly examined the complaint under
Article 5 para. 3 (Art. 5-3) of the Convention, which reads:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1(c) of this Article shall be
brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for
trial."
The Commission does not find it necessary to consider whether
the possibility to appeal under Chapter 1, Section 27, second
paragraph of the Coercive Criminal Investigation Means Act constitutes
a remedy which the applicant should have used in order to exhaust
domestic remedies as required by Article 26 (Art. 26) of the
Convention, as the complaint is manifestly ill-founded for the
following reasons.
The applicant was brought before the City Court of Helsinki on
27 June 1990. Thus, he was brought "promptly before a judge" (cf.
Eur. Court H.R., Brogan and Others judgment of 29 November 1988,
Series A No. 145-B, p. 33-34, para. 62).
As regards the reasonableness of the applicant's detention
pending trial the period to be considered under this provision started
on the day of the arrest, that is 24 June 1990, and ended not later
than 23 August 1990. The Commission observes that, when postponing
the applicant's trial and maintaining his detention on remand, the
District Court of Vantaa had regard, on the one hand, to the
subsidiary role of the domestic criminal proceedings in relation to
the proceedings regarding the extradition request, and, on the other,
to the risk that the applicant might abscond, as well as to the
gravity of the offence and the public importance of the case. In
these circumstances the length of the applicant's detention cannot be
regarded as unreasonable for the purposes of Article 5 para. 3
(Art. 5-3) of the Convention.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
(c) The Commission has thirdly examined the complaint under
Article 5 para. 4 (Art. 5-4) of the Convention which reads:
"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."
The Commission observes that the City Court of Helsinki on
27 June 1990 remanded the applicant for trial. The District Court of
Vantaa on 24 July, 6 August and 17 August 1990 decided to continue the
detention on remand. At least on the two last-mentioned occasions the
applicant challenged the lawfulness of his detention. Furthermore,
there is no indication that the applicant could not have challenged
the lawfulness of his detention before the City Court on 27 June 1990
and before the District Court on 24 July 1990. Thus, he was entitled
to take proceedings with a view to having the lawfulness of his
detention being decided speedily.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
(d) The applicant further claims compensation from the Finnish
Goverment in accordance with Article 5 para. 5 (Art. 5-5) of the
Convention which reads:
"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."
The Commission does not consider it necessary to examine
whether the applicant has exhausted domestic remedies in respect of
this complaint, as it has found no violation of Article 5 paras. 2, 3
and 4 (Art. 5-2, 5-3, 5-4) of the Convention. Consequently, no
violation can be found under Article 5 para. 5 (Art. 5-5) of the
Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
(e) The applicant further complains of violations of Article 6
paras. 1 and 3 (a) (Art. 6-1, 6-3-a) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar
as it is relevant:
"In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law..."
Article 6 para. 3 (a) (Art. 6-3-a) of the Convention reads:
"Everyone charged with a criminal offence has the following
minimum rights:
... to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;"
The Commission recalls that the reasonableness of the length
of proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the Court's case-law, in particular the complexity of the case and
the conduct of the applicant and of the relevant authorities (see, as
the most recent authority, Eur. Court H.R., Vernillo judgment of
20 February 1991, para. 30, to be published in Series A as No. 198).
In the present case the Commission notes that, while a
procedure for prosecution in Finland was initiated, it was interrupted
by the applicant's extradition to the Soviet Union. In the light of
the case-law of the Convention organs the Commission finds no
violation of the applicant's right to a trial within a reasonable time
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Furthermore, there is no substantiation of the applicant's complaints
under Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains that the reasons invoked by
the prosecutor in support of the requests for a postponement of the
trial violated Article 18 (Art. 18) of the Convention which reads:
"The restrictions permitted under this Convention to
the said rights and freedoms shall not be applied for any
purpose other than those for which they have been
prescribed."
The Commission finds no appearance of a violation of Article
18 (Art. 18) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy