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FIFTH
SECTION
CASE OF NOVIK v. UKRAINE
(Application
no. 48068/06)
JUDGMENT
STRASBOURG
18 December 2008
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Novik v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48068/06) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Belarusian national, Mr Valeriy Valeryevich
Novik (“the applicant”), on 4 December 2006.
- The
applicant was represented by Mr A. P. Bushchenko, a lawyer practising
in Kharkiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev, from the Ministry of
Justice.
- The
applicant alleged, in particular, that his detention awaiting
extradition was not lawful.
- On
13 March 2007 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning unlawfulness of
the applicant's detention to the Government. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Kyiv.
- On
30 November 2006 the applicant was apprehended by the
police in Kyiv under the international arrest warrant issued by the
General Prosecutor's Office of Belarus.
- On
1 December 2006 the Pechersky District Court of Kyiv
ordered the applicant's detention for forty days pending an official
request for his extradition to Belarus and in order to effect his
transfer to the law enforcement authorities of Belarus.
- On
4 December 2006 the applicant appealed against the decision
of 1 December 2006. He contended that the first instance
court had not taken into account his state of health and the fact
that he, together with his wife and three minor children, had been
residing in Ukraine for a long period of time, and that the court had
not examined the applicant's submissions concerning his political
persecution in Belarus.
- On
7 December 2006 the Kyiv City Court of Appeal rejected the
applicant's appeal against the decision of 1 December 2006.
It held that the first instance court had duly taken into account the
applicant's state of health. However, it took the view that his
family situation was irrelevant for the case and that the applicant's
allegations of political persecution in Belarus were unsubstantiated.
- On
8 December 2006 the Deputy Prosecutor of the Republic of Belarus
submitted an official request to the General Prosecutor's Office
of Ukraine, seeking the applicant's extradition to Belarus.
- By
letter of 25 December 2006 the Deputy Prosecutor General of
Ukraine informed the Belarusian Deputy Prosecutor General that the
applicant would not be extradited on the ground that, under Ukrainian
law, the charges against the applicant did not carry imprisonment.
- On
27 December 2006 the applicant was released from detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Relevant
domestic law and practice is summarised in the case of Soldatenko
(Soldatenko v. Ukraine, 2440/07, §§ 21-29 and 31, 23
October 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained about the unlawfulness of his detention. He
referred to Article 5 § 1 (f) of the Convention, which reads 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 ...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant complained that the domestic authorities did not act with
due diligence in extradition proceeding against him and that
Ukrainian law did not provide for clear and foreseeable procedure
governing detention awaiting extradition, as required by Article 5 §
1 (f) of the Convention.
- The
Government maintained that the domestic authorities acted with due
diligence, in particular, after receipt of the extradition request,
it took them only seventeen days to decide that the applicant should
not be extradited. They further contended that the clear and
foreseeable procedure for the applicant's detention awaiting
extradition was provided by the Constitution of Ukraine, the CIS
Convention on Legal Assistance and Legal Relations in Civil, Family
and Criminal Matters 1993 (“the Minsk Convention”), the
Code of Criminal Procedure and the Resolution no. 16 of the Plenary
Supreme Court of 8 October 2004 on certain issues relating to the
application of legislation governing the procedure and length of
detention (arrest) of persons awaiting extradition.
- The Court reiterates that any deprivation of liberty
is justified under Article 5 § 1 (f) only for as
long as deportation or extradition proceedings are in progress. If
the proceedings are not executed with due diligence, the detention
will cease to be permissible under that provision (see Chahal,
cited above, § 113; Quinn v. France, judgment of
22 March 1995, Series A no. 311, p. 19, § 48; and also
Kolompar
v. Belgium, judgment of 24 September 1992, Series A no.
235-C, p. 55, § 36).
- Furthermore,
it should be recalled that where deprivation of liberty is concerned,
it is particularly important that the general principle of legal
certainty be satisfied. The requirement of “quality of law”
in relation to Article 5 § 1 implies that where a
national law authorises a deprivation of liberty it must be
sufficiently assessable, precise and foreseeable in application, in
order to avoid all risk of arbitrariness (see Baranowski
v. Poland, no. 28358/95, § 50-52, ECHR
2000 III, and Khudoyorov v. Russia, no. 6847/02,
§ 125, ECHR 2005 ... (extracts)).
- The
Court considers that in the circumstances of the present case it
cannot be said that during the twenty-eight days of the applicant's
detention pending the extradition proceedings, the authorities did
not act with due diligence. In particular, as the Government
submitted, they resolved the applicant's legal status within
seventeen days upon receipt of the extradition request.
- Conversely,
as regards the quality of national law governing detention awaiting
extradition, the Court recalls that it has already faced a similar
issue in the case of Soldatenko v. Ukraine (cited above,
§§ 102, 112-114 and 126), in which the Government
referred to the same domestic law and practice as a basis for the
procedure for detention awaiting extradition, and found that
Ukrainian legislation did not provide for a procedure that was
sufficiently accessible, precise and foreseeable in its application
to avoid the risk of arbitrary detention. In the present case, the
Court does not find any reasons to deviate from the conclusions
reached in the Soldatenko judgment and confirms that the
relevant domestic legislation could not protect the applicant from
arbitrariness.
- There
has therefore been a violation of Article 5 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
unlawfulness of the applicant's detention admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
Done in English, and notified in writing on 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
