Communicated on 24 August 2015
FOURTH SECTION
Application no. 2669/13
Vitaliy ZHERNIN
against Poland
lodged on 10 December 2012
STATEMENT OF FACTS
The applicant, Mr Vitaliy Zhernin, is a Ukrainian national, who was born in 1985 and lives in Warsaw.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 11 April 2009 the applicant was detained on remand in connection with criminal charges against him.
On 15 December 2010 the Warsaw Regional Court convicted the applicant of homicide and sentenced him to twenty-five years of imprisonment. The judgment was upheld on appeal by the Warsaw Court of Appeal on 29 April 2011. It is final.
Subsequently the applicant applied to the court to be transferred to Ukraine in order to serve the remainder of his sentence.
On 17 July 2012 the Warsaw Regional Court gave a decision in which it agreed for transfer to the applicant to Ukraine. The court considered that the applicant was a Ukrainian national and at the time of his arrest he had not had a place of residence in Poland. The court concluded that the conditions for taking over execution of the Polish sentence were met and found no legal obstacles preventing the transfer.
On 19 November 2012 the Minister of Justice informed the applicant in a letter that the Minister objected to his transfer to Ukraine. The letter stated as follows:
“In connection with the proceeding concerning your transfer to Ukraine for the purpose of continuing to serve your prison sentence there, [I] inform you that the Minister of Justice did not agree to your transfer to Ukraine. Given the Minister’s position we consider the matter as finished.”
The applicant repeated his request for transfer.
On 28 November 2014 he received another letter from the Minister of Justice. The letter reads as follows:
“In connection with the proceeding concerning your transfer to Ukraine for the purpose of continuing to serve your prison sentence there, [I] inform you that the Minister of Justice did not agree to your transfer to Ukraine. There is no remedy to challenge the Minister’s decision.
The reason for [the Minister’s] refusal was the nature of the offence committed by you and the legal system in Ukraine which provides the maximum penalty of fifteen years’ imprisonment for the offence committed by you.”
The applicant continues serving his prison sentence in Poland.
B. Relevant domestic law and practice
1. The Code of Criminal Procedure
Article 160 of the Code of Criminal Procedure, in so far as relevant, reads as follows:
“1. If a foreign national has been validly and finally sentenced by a Polish court to a penalty of deprivation of liberty subject to execution ..., the Minister of Justice may request an appropriate agency of the foreign state whose national is the sentenced person ... to take him over with the purpose of serving his sentence.
2. The Minister of Justice before making the request referred to in § 1 above shall apply to the relevant court to issue a decision on whether the ruling may be executed abroad.”
2. The Convention on the Transfer of Sentenced Persons (ETS no. 112) and the Additional Protocol thereto (ETS no. 167)
The objectives of the 1983 Transfer Convention, including its Additional Protocol of 1997, are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. The Preamble to the Transfer Convention states that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society. Its provisions, in so far as relevant, read as follows:
Article 1 – Definitions
“For the purposes of this Convention: ...
c. “sentencing State” means the State in which the sentence was imposed on the person who may be, or has been, transferred;
d. “administering State” means the State to which the sentenced person may be, or has been, transferred in order to serve his sentence”.
Article 3 – Conditions for transfer
“1. A sentenced person may be transferred under this Convention only on the following conditions:
a. if that person is a national of the administering State; ...”
COMPLAINTS
The applicant complains, without relying on any Article of the Convention, about the Polish authorities’ refusal to transfer him to Ukraine. He submits that serving his sentence in Ukraine would allow him to have better and more frequent contacts with his family. Moreover the decisions of the Minister were taken without his participation and did not contain any reasoning.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings pending since 2012 concerning the applicant’s request for transfer to Ukraine (see Buijen v. Germany, no. 27804/05, 1 April 2010)?
If so, did the applicant have a fair hearing, in particular in the proceedings before the Minister of Justice, in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?
Was the non‑execution of the decision of 17 July 2012 compatible with the applicant’s rights guaranteed by Article 6 § 1 of the Convention?
2. Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. Has there been a failure by the State to comply with its positive obligations to protect the applicant’s right to respect for his private and family life under Article 8 of the Convention?
4. The Government are invited to submit copies of the applicant’s requests for transfer lodged with the Minister of Justice.
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