KULEVSKIY v. RUSSIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos
1. The applicant, Mr Igor Anatolyevich Kulevskiy, is a Belarusian national, who was born in 1966 and lived in Gomel, Belarus. He is represented before the Court by Mr V.S. Korchevskiy, a lawyer practising in Tula, Russia. 2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 2004 the applicant left Belarus for Russia. 4. In the same year the Prosecutor General’s Office of the Republic of Belarus started an investigation of the activities of a criminal gang which operated in 1989-2004 in the Gomel region. As a result of the investigation fortysix members of the gang stood trial before the Supreme Court of the Republic of Belarus. Proceedings against the remaining alleged members of the gang, including the applicant, whose whereabouts could not be established, were separated. 5. On 12 January 2005 the Prosecutor General’s Office charged the applicant in absentia, issued an order for him to be remanded in custody and declared him a wanted person. The charges against the applicant, as amended on 15 March 2007, included, in particular, attacks on businesses and citizens (under Article 286 of the Criminal Code of the Republic of Belarus), acquisition, transfer, storage, transportation and carrying of firearms (under Article 295 § 4 of the Criminal Code), murder of one person in February 1994, murder with particular cruelty of four persons in September 1994 and three more persons in April 1995 (under Article 100 of the 1960 Criminal Code punishable by fifteen to twenty-five years’ imprisonment, life imprisonment or death). 6. On 6 August 2010 the applicant was arrested in the Tula region in Russia. 7. On 16 August 2010 a deputy Prosecutor General of Belarus, relying on Articles 56 and 80 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the 1993 Minsk Convention”), requested a deputy Prosecutor General of the Russian Federation to extradite the applicant to Belarus so that he could be prosecuted for the offences with which he was charged. The Prosecutor General’s Office of Belarus guaranteed that the applicant would only be prosecuted for offences in connection with which he would be extradited, that after his trial or after serving his sentence, if convicted, he would be free to leave Belarus and that he would not be transferred to a third state without the Russian Federation’s consent. It was stated further that the request was not aimed at persecuting the applicant on the grounds of his race, religion, ethnic origin or political convictions, and that the statute of limitation for his prosecution had not expired. 8. On 28 October 2010 the Aleksin Town Court, Tula region, convicted the applicant of forgery of a Russian passport, using which he had lived in Russia under a false name, and sentenced him to one year’s imprisonment. A decision on the applicant’s extradition was postponed. His conviction became final on 6 April 2011. 9. On 23 May 2011 the deputy Prosecutor General of the Russian Federation (“the RF”), relying in particular on Articles 56 and 66 of the 1993 Minsk Convention and Articles 462463 of the RF Code of Criminal Procedure, granted the request for the applicant’s extradition. The decision noted that the offences with which the applicant had been charged in Belarus constituted crimes under the Russian criminal law punishable with more than one year’s imprisonment, and that the statute of limitation for their prosecution had not expired. The applicant was a Belarusian national and did not have Russian citizenship. 10. On the same day the RF deputy Prosecutor General communicated his decision to the Belarus Deputy Prosecutor General, inviting the latter to inform him, under Article 69 of the 1993 Minsk Convention, of the outcome of the criminal proceedings against the applicant. The extradition was to take place once the applicant’s sentence for passport forgery had been served and the extradition decision had entered into force. 11. On 8 July 2011 the Belarus Deputy Prosecutor General, in reply to the RF Deputy Prosecutor General’s inquiry, supplemented his request for the applicant’s extradition with additional assurances, notably that in the event of the applicant’s extradition to Belarus the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms would be observed, the applicant would not be subjected to torture, inhumane or degrading treatment or punishment. If convicted, he would not be sentenced to death. He would be given a fair trial and, if necessary, provided with appropriate medical care. 12. The applicant appealed against the extradition decision to the Tula Regional Court. A judge to whom the case had been allocated enquired with the RF Prosecutor General about the possibility of obtaining additional assurances from Belarus, to the effect that the relevant court there would not impose the death penalty on the applicant, or that the death penalty would not be carried out. Following that inquiry the RF Ministry of Foreign Affairs obtained a Note of 26 July 2011, no. 04-21/1379-k, of the Embassy of the Republic of Belarus in the Russian Federation which states as follows: “The Embassy of the Republic of Belarus in the Russian Federation presents its compliments to the Ministry of Foreign Affairs of the Russian Federation and, in reply to Note no. 8372/2 дснг of 19 July 2011, has the honour to present the following information. The Embassy of the Republic of Belarus in the Russian Federation confirms that compliance by all Belorussian law-enforcement organs, including courts and organs of execution of sentences, with the undertakings given by the Republic of Belarus Prosecutor General’s Office on behalf of the Republic of Belarus of the nonapplication of the death penalty to Igor Anatolyevich Kulevskiy, is both lawful and compulsory. By virtue of the law of the Republic of Belarus, in particular Article 494 § 4 of the Code of Criminal Procedure of the Republic of Belarus, only the Republic of Belarus Prosecutor General’s Office has the power to give a written undertaking on behalf of the Republic of Belarus of the nonapplication of the death penalty to a person whose extradition is being sought. In this connection, the written undertaking by the Republic of Belarus Prosecutor General’s Office on behalf of the Republic of Belarus of the non-application of the death penalty to Igor Anatolyevich Kulevskiy has in essence the force of an international legal obligation of the Republic of Belarus which is subject to rigorous observance. Taking into account the aforementioned circumstances, the written undertaking by the Republic of Belarus Prosecutor General’s Office specifically indicates that in the event of delivery of a “guilty” verdict a court with jurisdiction to examine the case will not sentence I.A. Kulevskiy to death («... в случае вынесения обвинительного приговора в нем компетентным судом Республики Беларусь не будет назначено наказание И.А. Кулевскому в виде смертной казни ...»). That court will be bound to examine that undertaking at the [Kulevskiy’s] trial and regard it as an obligation of the Republic of Belarus not to apply the death penalty to him. We should also inform you that the Ministry of Foreign Affairs of the Republic of Belarus and its diplomatic representation offices are not vested by Belorussian law with powers to give additional legally binding guarantees of non-application of the death penalty. The Embassy of the Republic of Belarus in the Russian Federation avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the Russian Federation the assurances of its highest consideration.” 13. From 15 September 2011, after serving his sentence for the passport forgery, the applicant was in custody pending extradition. He was released on 22 September 2012 when the maximum time-limit for detention had been reached. 14. The applicant’s request for refugee status was refused by a final decision of the Russian Federal Migration Service on 29 November 2011; on an appeal by the applicant that decision was upheld by the Moscow Basmanniy District Court on 11 January 2012 and the Moscow City Court on 24 February 2012. 15. On 6 March 2012 the Tula Regional Court, sitting in a panel of three judges, held an open hearing. Having heard the applicant, his counsel and the prosecutor and having examined other evidence, the Regional Court upheld the extradition decision, which it found to be in compliance with the European Convention on Extradition of 1957, the Minsk 1993 Convention and the RF Code of Criminal Procedure. The Regional Court examined the assurances given by the Belarus Prosecutor General’ 16. In particular, as regards the applicant’s argument that three leaders of the gang convicted of the murders, which offences formed part of the charges against him, had been sentenced to death and executed, the Regional Court established, on the basis of official information from the Belarusian authorities, that those individuals had never been extradited; they had been arrested in Belarus in 2004 and detained there until their conviction and execution. 17. The applicant’s allegations that he had been persecuted in Belarus for his political activity, detained unlawfully and illtreated were found by the Regional Court to be incoherent, unsubstantiated and lacking essential details. No evidence of his detention or illtreatment had been provided. Political motives for leaving his home country had for the first time been raised at the last hearing before the Regional Court, without any details being provided. He had stated to the court previously that he had left Belarus to find a job. He admitted at the hearing that he was not a member of any political, religious, non-governmental or military organisation, and had never distributed materials or appeals in the context of agitation. He had made the same statements when detained with a view to extradition. His wife, daughter and sister were Belarusian nationals, resided in Belarus and had never been persecuted. Upon arrival in Russia he had not applied for refugee status or for Russian citizenship, but had lived under a forged Russian passport. 18. The Regional Court examined human rights organisations’ reports submitted by the defence, which indicated that the human rights situation in Belarus was unstable. Relying on the Convention case-law, the Regional Court noted that the reference to a general problem concerning human rights observance in a particular country could not alone serve as a basis for refusal of extradition. The charges against the applicant did not relate to political activity. The applicant’s allegation that any detainee would be subjected to ill-treatment in Belarus was too general. He was accused of banditry, illegal weapons trafficking and the murder of eight people with aggravating circumstances. There was no evidence that the applicant had engaged in any political activity. His allegations of earlier instances of illtreatment in Belarus were vague, totally unsubstantiated and unconvincing. The Regional Court concluded that there were no grounds to believe that the applicant would be subjected to treatment dangerous to his health or life, or that his trial would be unfair. The applicant had no health issues requiring him to stay in Russia on humanitarian grounds. 19. On 26 April 2012 the Supreme Court of the Russian Federation dismissed the applicant’s appeal against the Regional Court’s judgment, having endorsed the Regional Court’s findings. 20. On 21 May 2012 the Court, acting upon the applicant’s request, decided to apply Rule 39 of the Rules of Court, indicating to the Government of the Russian Federation that the applicant should not be extradited to Belarus until further notice by the Court. 21. The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Belarus are parties, provides as follows: “1. The Contracting Parties shall ... on each other’s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” “1. Extradition shall not be carried out if: (a) the person whose extradition is being requested is a citizen of the requested Contracting Party; (b) At the moment of receipt of the request criminal prosecution cannot be initiated according to the legislation of the requested Contracting Party ... as a result of the expiry of the statute of limitations or on another legal ground; (c) a judgment or a decision on termination of proceedings have been delivered and entered into force on the territory of the requested Contracting Party in respect of the person whose extradition is being requested for the same crime; (d) in accordance with the legislation of the requesting and requested Contracting Parties the crime is being prosecuted by way of private prosecution (on a victim’s request) ...” “1. A request for extradition shall include the following information: (a) the title of the requesting and requested authorities; (b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order ...” “1. Without the requested Contracting Party’s consent the extradited person must not be prosecuted or punished for the crime committed before his extradition for which he had not been extradited. 2. Furthermore, without the requested Contracting Party’s consent the person cannot be transferred to a third state ...” “The Contracting Parties shall notify each other of the outcome of the criminal proceedings against the extradited person. On request, a copy of the final judgment shall be sent. ” “Relations concerning extradition and criminal prosecution are performed by Prosecutor Generals (prosecutors) of the Contracting Parties.” 22. Similar provisions are contained in chapter 54 (Articles 460-468) of the Code of Criminal Procedure of the Russian Federation, which governs the procedure to be followed in the event of extradition. Under Article 462 § 4 of the Code, the extradition decision is taken by the Prosecutor General of the Russian Federation or his deputy. 23. Under Article 59 of the Criminal Code of the Republic of Belarus, the death penalty is applied, until its abolition, as an exceptional punishment for certain very grave crimes. The death penalty cannot be imposed on anyone who has committed offences when under the age of eighteen, on women, or on men who have reached the age of 65 by the date of delivery of a judgment. The death penalty can be replaced by a life sentence by way of clemency. The last two executions reportedly took place in March 2012. 24. Under Article 494 § 4 of the Code of Criminal Procedure of the Republic of Belarus, the Prosecutor General’s Office of the Republic of Belarus encloses with a request for extradition a written undertaking on behalf of the Republic of Belarus that the death penalty will not be applied to a person whose extradition is being sought, if such an undertaking is a condition of the requested state’s granting the extradition request. 25. Under Article 34 of the Code of Criminal Procedure of the Republic of Belarus, prosecution in criminal proceedings and the bringing of criminal charges before the courts are carried out by prosecutors on behalf of the State. Under Article 17 of the 2007 Law on the Prosecutor’s Office of the Republic of Belarus, the Prosecutor General’s Office supervises the activities of all prosecutors’ offices in the Republic of Belarus. 26. The Coordination Council of the Prosecutor Generals of States Parties to the Commonwealth of Independent States (CIS) was created in 1995 and given the status of CIS interstate organ in 2000. One of its tasks is to assess the efficiency of the CIS 1993 Minsk Convention and to propose measures for improvement of regulation of the relations governed by that Convention. It organises cooperation between the prosecutors of the States members and facilitates the defence of rights of their citizens.