Communicated on 18 January 2014
SECOND SECTION
Application no. 74785/10
Demyan YANKOVOY and Rezzak ALIYEV against Turkey
lodged on 22 December 2010
STATEMENT OF FACTS
The applicants, Demyan Yankovoy and Rezzak Aliyev, are Ukrainian and Azerbaijani nationals, who were born in 1976 and 1974, respectively. At the time of their application to the Court, the applicants were detained in Metris prison, in Istanbul. They are represented before the Court by Mr A. Yılmaz, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2001 the Ukrainian authorities issued a search warrant against the applicants on suspicion of murder. When it was found out that the applicants were in Turkey, the Ukrainian authorities requested their extradition from the Turkish authorities.
On 15 October 2001 the applicants were arrested and detained for 18 days on the basis of Articles 16 and 18 of the Convention on Extradition pending the extradition procedure.
On 31 October 2001 in compliance with the provisions of the aforementioned Convention as well as Articles 100 and 108 of the Criminal Code, their detention was extended to forty days.
On 21 November 2001 their detention was authorised until the extradition proceedings were finalised.
On 4 February 2002 the Council of Ministers approved their extradition to Ukraine. It reached the conclusion that the applicants were not wanted in connection with a military or a political offence.
On 3 February 2002, the night before their extradition was enforced, the applicants committed murder in prison. As a result, all the extradition proceedings were suspended and a criminal investigation was launched against the applicants. At the end of the criminal proceedings the applicants were convicted of murder and sentenced to a term of imprisonment.
After they had served their sentences, the applicants’ release was set for 27 November 2010. In an effort to resume the extradition proceedings and pursuant to the extradition decision rendered on 4 February 2002, the prosecutor in charge requested the Istanbul Magistrates’ Court to issue an order for the applicants’ provisional arrest, which would take effect from 27 November 2010 until the decision on their extradition was fully enforced.
On 25 November 2010 the first applicant Demyan Yankovoy lodged an application for asylum with the domestic authorities. In his application, he maintained that he would be at a real risk of ill-treatment if he was extradited to Ukraine. He further contended that that risk was so real that they had felt forced to take the risk of committing a serious crime attracting a life sentence rather than be extradited to Ukraine. No answer was received to this petition.
On 26 November 2010 the first applicant lodged an objection with the Istanbul Magistrates’ Court, requesting his release.
On 14 December 2010 the second applicant applied for asylum on the same grounds. His application was rejected.
On 2 December 2010 the first applicant’s lawyer repeated the request for release.
On 22 December 2010 the applicants’ representative lodged the present application with the Court requesting under Rule 39 of the Rules of Court that the applicants’ extradition be stopped. The President of the Chamber to which the case was allocated decided not to indicate an interim measure to the respondent Government.
On 11 January 2011 the first applicant was extradited to Ukraine.
On 12 January 2011 in order to prevent the extradition of the second applicant, the applicants’ representative made a second application to the Court under Rule 39. The President of the Chamber decided to maintain her initial decision not to indicate an interim measure to the Government.
On 19 January 2011 the decision rejecting the second applicant’s request for asylum was served on him. Subsequently, he filed an objection against that decision.
On 23 February 2011 the Ministry of the Interior informed the second applicant that his request for asylum and subsidiary protection had been dismissed and as a result his case had been closed.
On 28 February 2011 the second applicant was extradited to Ukraine.
Based on the information provided by the applicants’ representative, both applicants are incarcerated in a prison in the Odessa region.
COMPLAINTS
The applicants complain under Article 5 of the Convention that the decisions of the Istanbul Magistrates’ Court setting the deadline for their provisional arrest with a view to extradition at the end of the proceedings violated their right to liberty and security.
QUESTIONs TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? What was the legal basis for the applicants’ detention after 27 November 2010? In particular, regard being had to the European Convention on Extradition, which provides that provisional arrest cannot, in any case, exceed forty days, and the relevant national legislation, was the decision of the Magistrates’ Court authorising the detention of the applicants until the end of the extradition proceedings lawful?
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