I correctly predicted that there was a violation of human rights in BAZ v. UKRAINE.

Information

  • Judgment date: 2020-11-05
  • Communication date: 2016-01-12
  • Application number(s): 40962/13
  • Country:   UKR
  • Relevant ECHR article(s): 5, 5-1-f
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.826811
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Mekhmet Takhir Dino Baz, is a Turkish national who was born in 1976 and lives in Odessa.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
In September 1998 the applicant left Turkey for an unspecified country.
In 2004 he arrived in Ukraine and two years later he married a Ukrainian national.
The couple had two children, born in 2008 and 2010.
1.
Asylum proceedings On 23 March 2011 the applicant was granted refugee status in Ukraine.
On 18 October 2012 the State Migration Service withdrew his refugee status on the grounds that he had provided false information.
The applicant had stated that he had been persecuted in Turkey on political grounds, concealing the fact that he had been wanted by the law-enforcement authorities on suspicion of a criminal offence.
The Ukrainian courts at three levels of jurisdiction rejected the applicant’s administrative claim in that regard.
The final decision was handed down by the Higher Administrative Court on 3 April 2013.
Meanwhile, on 14 March 2013 the applicant applied to the immigration authorities for subsidiary protection.
On 13 August 2013 the Kharkiv regional department of the State Migration Service rejected his request for leave to lodge the application in question on the grounds that his refugee status had been withdrawn.
On 27 February 2014 the Odessa District Administrative Court quashed that decision following an administrative claim by the applicant and directed the immigration authorities to examine his application for subsidiary protection on the merits.
The migration service appealed.
It appears from the case file that the appellate court scheduled a hearing for 3 June 2014 to examine the appeal, but there is no information on subsequent developments.
2.
Criminal proceedings against the applicant in Ukraine On 25 September 2012 the applicant was detained in Ukraine on suspicion of using documents he knew to be forged (no further details are available in the case file).
On an unspecified date he was released, subject to an undertaking not to abscond.
On 14 March 2013 the Leninskyy District Court of Kharkiv (“the Leninskyy Court”) found the applicant guilty of the charge and sentenced him to two months’ imprisonment.
The undertaking not to abscond remained in place as a preventive measure pending the judgment becoming final.
The applicant appealed.
There is no information in the case file on the outcome of those proceedings.
3.
Extradition proceedings and the applicant’s detention with a view to his extradition On 20 June 2011 the Istanbul 13th Higher Criminal Court (“the Istanbul Court”) issued a warrant for the applicant’s arrest on suspicion of participation in terrorist and separatist activities on 5 August 1998.
On 3 October 2012 the Istanbul Court sent a request to “the authorised judicial authorities of Ukraine” seeking the applicant’s extradition to Turkey in connection with the criminal proceedings against him.
As noted in the request, the criminal charge in question was to become time-barred on 15 August 2013.
The Turkish court assured the Ukrainian authorities that the applicant’s rights and freedoms under the Convention would be respected.
On 14 November 2012 the applicant was detained by the State Security Service of Ukraine with a view to his extradition.
On 15 November 2012 the Mykolayiv regional department of the State Migration Service informed the State Security Service that the applicant had not applied for Ukrainian nationality.
On 16 November 2012 the Tsentralnyy District Court of Mykolayiv (“the Tsentralnyy Court”), following an application from the prosecution authorities, remanded the applicant in custody pending his extradition, but for no longer than eighteen months.
On 11 March 2013 the Kharkiv regional prosecutor applied to the Zhovtnevyy District Court of Kharkiv (“the Zhovtnevyy Court”) to approve the applicant’s continued detention, in accordance with Article 584 of the new Code of Criminal Procedure (see “Relevant domestic law” below).
The prosecutor applied to the Zhovtnevyy Court because the applicant had by that time been transferred from Mykolayiv to Kharkiv in the context of his trial in Ukraine (see above).
On 16 May 2013 the Zhovtnevyy Court approved the applicant’s continued detention, pending his extradition to Turkey.
The applicant appealed.
He submitted that the court had not verified whether the extradition request had been made by the competent Turkish authorities or whether it had been sent to the competent Ukrainian authorities.
The applicant also complained that the case file had contained no description of the criminal offence he was accused of or any information that he had been duly served with notice that he was a suspect.
Furthermore, he alleged that no assessment had been made of his statement that his extradition had in fact been requested with a view to his being persecuted on political and ethnic grounds, which should have warranted its refusal by the Ukrainian authorities.
The applicant also complained that the Zhovtnevyy Court had referred to the judgment of the Leninskyy Court of 14 March 2013 against him, although it had not become final.
He also contended that there had been no analysis of his health and family situation.
The applicant observed that the documents enclosed with the extradition request had only been photocopies and had lacked any official stamps.
Lastly, he complained that no Turkish or Kurdish interpreter had been provided for him.
On 30 May 2013 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) allowed the applicant’s appeal in part.
As a result, it quashed the ruling of 16 May 2013 and remitted the case to the Zhovtnevyy Court for fresh examination.
The appellate court noted that although all the arguments raised by the applicant in his appeal had been advanced before the investigating judge previously, none of them had been examined or received any response.
In fact, the Zhovtnevyy Court had merely reiterated the reasoning of the prosecutor.
On 17 June 2013 the Istanbul Court issued another warrant for the applicant’s arrest on the same criminal charge as before.
On 17 July 2013 the investigating judge of the Zhovtnevyy Court again examined the prosecutor’s application and decided that the applicant’s continued detention was justified.
The judge referred to the two arrest warrants and the extradition request issued by the Istanbul Court.
The Kharkiv regional prosecutor’s office had received the documents in question from the Ministry of Justice of Ukraine.
Furthermore, the prosecution authorities had carried out an extradition inquiry (екстрадиційна перевірка) and had concluded that there were no impediments to the applicant’s extradition.
The judge also noted the applicant’s conviction by the judgment of 14 March 2013, but specified that it had not yet become final.
Lastly, reference was made to a medical certificate issued by doctors at the pre-trial detention centre (SIZO), which stated that the applicant’s health was satisfactory.
On 1 August 2013 the Court of Appeal rejected the applicant’s request for leave to appeal.
It noted that the decision of 17 July 2013 was not amenable to appeal and that the indication to the contrary therein had been a mistake.
The applicant complained to the Zhovtnevyy Court that there were no grounds for his continued detention and requested to be released.
On 30 August 2013 the Zhovtnevyy Court allowed his request and released him.
It noted that, under Article 590 § 4 of the Code of Criminal Procedure, no decision on a person’s extradition could be taken if that person had applied for refugee status or had sought subsidiary protection, and where there was no final decision in that regard.
The Ministry of Justice of Ukraine had not taken any decision on the Turkish authorities’ request for the applicant’s extradition.
Furthermore, such a decision could not be taken until the completion of the asylum proceedings.
In addition, the limitation period in respect of the criminal offences of which the applicant was accused had expired on 15 August 2013.
The judge referred in this connection to Article 10 of the European Convention on Extradition, pursuant to which extradition could not be granted in such circumstances (see “Relevant international material” below).
On 23 September 2013 the Ministry of Justice of Ukraine rejected the extradition request of 3 October 2012.
B.
Relevant domestic law 1.
Law on refugees and persons requiring subsidiary or temporary protection (enacted on 4 August 2011) This law repealed the previous Law on Refugees, of 21 June 2001, which did not provide for subsidiary or temporary protection.
Section 1(13) of the new Law defines subsidiary protection as protection afforded to a person who does not qualify as a refugee, but who requires protection because he or she has been forced to go to Ukraine or remain there as a result of threats to his or her life, safety or liberty existing in his or her country of origin owing to fears of the death penalty, torture, or inhuman or degrading treatment or punishment.
2.
Code of Criminal Procedure 1960 (repealed with effect from 19 November 2012) The relevant provisions are quoted in the Court’s judgment in Molotchko v. Ukraine (no.
12275/10, § 91, 26 April 2012).
3.
Code of Criminal Procedure 2012 (enacted on 19 November 2012) Article 541 provides definitions of terms used in the Code in the context of international cooperation on criminal matters.
In accordance with this provision, the extradition procedure includes: the submission of an official request to establish the whereabouts of the person to be extradited on the territory of the requested State; the submission of an official request for the extradition of such a person; an inquiry into any circumstances which might prevent extradition; the adoption of a decision on the extradition request; and the surrender of the person to the requesting State.
The same Article defines “extradition arrest” (екстрадиційний арешт) as placing a person in detention to ensure his or her extradition.
Article 548 § 5 provides that a competent central authority of Ukraine may consider a request for international cooperation which is submitted by fax, email or other means of communication.
A measure in respect of such a request may only be taken upon confirmation of the posting or submission of the original request.
Article 584 provides that a request to detain a person pending extradition should be submitted by a prosecutor after the receipt of an extradition request from the competent authority of a foreign State.
The prosecutor is obliged to submit a copy of the extradition request certified by a central Ukrainian authority, documents pertaining to the person’s citizenship and the available materials of the extradition inquiry (§§ 1 and 2).
The detention pending extradition is applied for the period necessary to take a decision on the person’s extradition and for the extradition itself; however, it cannot exceed twelve months (§ 10).
During this period, and not less than once every two months, the investigating judge shall examine, at the request of the prosecutor, whether there are grounds for keeping the person in detention or for his or her release (§ 11).
If there is a complaint by a detainee or his or her lawyer, the investigating judge must check whether there are any grounds for the person’s release (§ 12), but this cannot happen more than once a month, Article 589 sets out the grounds for rejecting an extradition request.
One of them is the expiry of the limitation period under Ukrainian legislation for the criminal offences for which a person’s extradition has been requested (§ 1 (3)).
Furthermore, extradition of a refugee or a person under subsidiary or temporary protection is prohibited (§ 2).
Under Article 590 § 4, no decision on a person’s extradition can be taken if that person has applied for refugee status or has sought subsidiary protection and there has been no final decision in that regard.
C. Relevant international material The European Convention on Extradition (1957), which entered into force in respect of Ukraine on 9 June 1998, reads as follows: Article 10 – Lapse of time “Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.” COMPLAINT The applicant complains under Article 5 § 1 (f) of the Convention that his detention pending his extradition was unlawful.

Judgment

FIFTH SECTION
CASE OF BAZ v. UKRAINE
(Application no.
40962/13)

JUDGMENT
STRASBOURG
5 November 2020

This judgment is final but it may be subject to editorial revision.
In the case of Baz v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,Latif Hüseynov,Mattias Guyomar, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to:
the application 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 Turkish national, Mr Mekhmet Takhır Dıno Baz (“the applicant”), on 15 June 2013;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaint under Article 5 § 1 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision of the Turkish Government not to exercise their right to intervene in the proceedings under Article 36 § 1 of the Convention;
Having deliberated in private on 6 October 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1.
The case concerns the applicant’s complaint that his detention in Ukraine in the context of the examination of the Turkish authorities’ request for his extradition had been in breach of Article 5 § 1 (f) of the Convention. THE FACTS
2.
The applicant was born in 1976 and lives in Mykolayiv. The applicant, who had been granted legal aid, was represented by Mr O. Ovchynnykov, a lawyer practising in Strasbourg. 3. The Government were represented by their Agent, Mr I. Lishchyna. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In September 1998 the applicant left Turkey for an unspecified country. In 2004 he arrived in Ukraine and on 23 March 2011 he was granted refugee status. 6. On 18 October 2012 the State Migration Service revoked his refugee status on the grounds that he had provided false information. The applicant had stated that he had been persecuted in Turkey on political grounds, concealing the fact that he had been wanted by the law-enforcement authorities on suspicion of a criminal offence. 7. The Ukrainian courts at three levels of jurisdiction rejected the applicant’s claim challenging the revocation decision. The final decision was handed down by the High Administrative Court on 3 April 2013. 8. Meanwhile, on 14 March 2013 the applicant applied to the immigration authorities for subsidiary protection. 9. On 13 August 2013 the Kharkiv regional department of the State Migration Service rejected his application as inadmissible on the grounds that his refugee status had been revoked. 10. On 27 February 2014 the Odessa Circuit Administrative Court quashed that decision following an administrative claim by the applicant and directed the immigration authorities to examine his application for subsidiary protection on the merits. 11. The migration service appealed. There is no information in the case file on subsequent developments. 12. On 25 September 2012 the applicant was detained on suspicion of using documents he knew to be forged (no further details are available in the case file). On an unspecified date he was released, subject to an undertaking not to abscond. 13. On 14 March 2013 the Kharkiv Leninsky District Court found the applicant guilty as charged and sentenced him to two months’ imprisonment. 14. The applicant appealed. There is no information in the case file on the outcome of those proceedings. 15. On 20 June 2011 the Istanbul 13th Higher Criminal Court (“the Istanbul Court”) issued a warrant for the applicant’s arrest on suspicion of participation in terrorist and separatist activities on 5 August 1998. 16. On 3 October 2012 the Istanbul Court sent a request to “the authorised judicial authorities of Ukraine”, seeking the applicant’s extradition to Turkey in connection with the criminal proceedings against him. It was specified in the request that the criminal charge in question was to become time-barred on 15 August 2013. The Turkish court assured the Ukrainian authorities that the applicant’s rights and freedoms under the Convention would be respected. 17. On 14 November 2012 the applicant was detained by the State Security Service of Ukraine with a view to his extradition. 18. On 15 November 2012 the Mykolaiv regional department of the State Migration Service informed the State Security Service that the applicant had not applied for Ukrainian nationality (Ukrainian law bars the extradition of Ukrainian nationals). 19. On 16 November 2012 the Mykolaiv Tsentralny District Court, following an application from the prosecution authorities, placed the applicant in detention pending his extradition. 20. On 17 June 2013 the Istanbul Court issued another warrant for the applicant’s arrest on the same criminal charge as before. 21. The applicant was transferred from Mykolaiv to Kharkiv in connection with the criminal proceedings against him in Ukraine (see paragraphs 12 and 13 above), making the Kharkiv Zhovtnevy District Court (“the Zhovtnevy Court”) the competent court in matters of his detention. 22. On 17 July 2013 the Zhovtnevy Court examined the matter of the applicant’s detention and held that his continued detention was justified. The court referred to the two arrest warrants and the extradition request issued by the Istanbul Court. The Kharkiv regional prosecutor’s office had received the documents in question from the Ministry of Justice of Ukraine. Furthermore, the prosecution authorities had carried out an extradition inquiry (екстрадиційна перевірка) and had concluded that there were no impediments to the applicant’s extradition. The court also noted the applicant’s conviction by the judgment of 14 March 2013, but specified that it had not yet become final. 23. On 30 August 2013 the Zhovtnevy Court released the applicant. It noted that the limitation period in respect of the criminal offences of which the applicant was accused had expired on 15 August 2013. The court referred in this connection to Article 10 of the European Convention on Extradition, pursuant to which extradition could not be granted in such circumstances (see paragraph 29 below). 24. On 23 September 2013 the Ministry of Justice of Ukraine rejected the extradition request of 3 October 2012. RELEVANT LEGAL FRAMEWORK
25.
The relevant provisions of the Code are quoted in the Court’s judgment in Molotchko v. Ukraine (no. 12275/10, § 91, 26 April 2012). 26. Article 584 of the 2012 Code of Criminal Procedure provides that a request to detain a person pending extradition must be submitted by a prosecutor after receipt of an extradition request from the competent authority of a foreign State. Detention pending extradition is imposed for such time as is necessary to take a decision on the person’s extradition and for the extradition itself; however, the period must not exceed twelve months (Article 584 § 10). If there is a complaint by a detainee or his or her lawyer, the investigating judge must check whether there are any grounds for the person’s release (Article 584 § 12), but this may not happen more than once a month. 27. Article 589 § 2 provides that extradition of a refugee or a person under subsidiary or temporary protection is prohibited. 28. Under Article 590 § 4, no decision on a person’s extradition can be taken if that person has applied for refugee status or for subsidiary protection and there has been no final decision in that regard. 29. The 1957 European Convention on Extradition entered into force in respect of Turkey on 18 April 1960 and in respect of Ukraine on 9 June 1998. Its Article 10 reads as follows:
Lapse of time
“Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.”
THE LAW
30.
The applicant complained that his detention in connection with the examination by the Ukrainian authorities of the Turkish authorities’ extradition request had been in breach of Article 5 § 1 (f) of the Convention, the relevant parts of 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 ... against whom action is being taken with a view to ... extradition.”
31.
The applicant submitted that his detention had been contrary to Article 5 § 1 (f) for the following reasons: (i) until 3 April 2013 his appeals against the revocation of his refugee status had still been pending (see paragraph 7 above), meaning that he could not be extradited; (ii) on 14 March 2013 he had applied for subsidiary protection and so could not be extradited while those proceedings had been pending; and (iii) from 15 August 2013 onwards his detention had also become unlawful since his prosecution in Turkey had become time-barred. 32. The Government did not submit observations on the admissibility and merits of the case within the time-limits set. 33. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 34. A summary of the relevant general principles of the Court’s case-law can be found in Khomullo v. Ukraine (no. 47593/10, §§ 51-53, 27 November 2014). 35. The Court notes at the outset that there is no indication that the legal framework under which the applicant was detained pending his extradition was deficient in any way or that the authorities did not pursue the proceedings for his extradition with requisite diligence. 36. As to the arguments raised by the applicant (see paragraph 31 above), the Court notes that he did not point to any provision of domestic law which would support his submissions that he had retained his refugee status in Ukraine while his appeals against the decision to revoke that status had been pending. Likewise, no provision of domestic law prevented his extradition detention while his application for subsidiary protection was pending. While those two sets of proceedings may well have constituted a bar to his actual extradition to Turkey while they were pending, there was no bar to extradition once they were concluded in a manner unfavourable to the applicant. Therefore, the mere fact that those proceedings were pending does not put in doubt the compliance of the applicant’s detention with the requirements of domestic law and with Article 5 § 1 of the Convention. 37. By contrast, from 15 August 2013 (when the applicant’s prosecution in Turkey became time-barred) the applicant’s extradition became definitively impossible under the European Convention on Extradition, which is binding on Ukraine. Despite that fact, the applicant was not released until 30 August 2013 (see paragraphs 23 and 29 above). The Court has already found violations of Article 5 § 1 of the Convention in similar circumstances (see, for example, Dubovik v. Ukraine, nos. 33210/07 and 41866/08, §§ 61 and 62, 15 October 2009; Garkavyy v. Ukraine, no. 25978/07, §§ 70 and 75, 18 February 2010; and Mokallal v. Ukraine, no. 19246/10, § 44, 10 November 2011). It sees no reason to find otherwise in the present case. 38. There has accordingly been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 15 to 30 August 2013. 39. 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.”
40.
The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 41. The Government did not comment. 42. The Court, ruling on an equitable basis, awards the applicant EUR 4,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicant. 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4.Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginMārtiņš MitsActing Deputy RegistrarPresident