CASE OF MOKALLAL v. UKRAINE
Remainder inadmissible;Violation of Art. 5-1;No violation of Art. 5-1
Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
6. The applicant was born in 1971 and lives in Odessa. 7. The applicant has been living and working in Ukraine since 1995. He has a partner and five minor children. All his family are Ukrainian nationals. 8. In 2007, following media coverage of the applicant’s successful business, he was approached by representatives of the Iranian Embassy. They invited him to meet the President of Iran to receive an award for his business success. The applicant refused, as he disagreed with the domestic and foreign policies of the President. 9. In 2009 the applicant financially supported one of the opposition candidates in the Presidential elections. He submits that supporters of opposition candidates were prosecuted in Iran. 10. On an unknown date criminal proceedings for embezzlement were instituted against the applicant in Iran. 11. On 31 June 2009 the applicant was placed on the list of wanted persons by the Tehran Prosecutors’ Office. An international arrest warrant was issued. 12. On 11 February 2010 the applicant applied for refugee status in Ukraine. 13. On 2 March 2010 the UNHCR Regional Representation for Ukraine, Belarus and Moldova wrote a letter to the General Prosecutor’s Office of Ukraine (“the GPO”). They noted that the applicant was officially an asylum-seeker in Ukraine and therefore his status should be taken into account if the GPO examined any request for his extradition to Iran. 14. On 3 April 2010 the applicant was arrested by the Tairovskiy Police Department with a view to his extradition. 15. On 6 April 2010 Odessa Kyivskiy District Court remanded the applicant in custody pending the extradition procedure. 16. On 14 April 2010 the Odessa Regional Court of Appeal upheld the decision of the first-instance court. 17. On 19 April 2010 the GPO replied to the UNHCR letter of 2 March 2010, assuring them that the applicant would not be extradited until his application for refugee status had been examined on the merits. 18. On 17 June 2010 amendments to the Code of Criminal Procedure entered into force. They supplemented the Code with a new chapter, which set forth the extradition procedure to be followed and established a special procedure for detention with a view to extradition. They provided, in particular, that a person could be temporarily detained for forty days or another term envisaged in international treaties while awaiting formal request for extradition. Once a formal extradition request has been received, the court may order the detention of the person for a maximum of eighteen months with the possibility of further detention (see paragraph 28 below). 19. On 22 June 2010 the Odessa Malinovskiy District Prosecutor requested the Odessa Malinovskiy District Court to extend the extradition detention of the applicant. 20. On 23 June 2010 the applicant requested the Odessa Malinovskiy District Prosecutor to order his release due to lack of grounds to keep him in detention any longer. 21. On 29 June 2010 Odessa Malinovskiy District Court extended the applicant’s detention until a decision had been taken on his extradition. 22. On 12 July 2010 the GPO received a note from the Iranian Embassy, informing that the applicant’s detention was no longer required, due to a friendly settlement which had been reached between the applicant and one of the aggrieved parties in the case. 23. The next day the GPO ordered the Odessa Regional Prosecutor’s Office to take the necessary measures to have the applicant released from detention. 24. On 14 July 2010 the Deputy Prosecutor of the Odessa Region ordered the termination of the applicant’s detention. The applicant was released the same day and the GPO terminated the examination of the request for the applicant’s extradition to Iran. 25. On 16 July 2010 the Odessa Regional Court of Appeal discontinued examination of the applicant’s appeal against the decision of 29 June 2010, given that the applicant had been released. 26. On 9 December 2010 the State Committee for Nationalities and Migration rejected the applicant’s request for granting him the refugee status. The applicant was notified about this decision on 1 July 2011. He challenged it before the Odessa Regional Administrative Court on 10 July 2011. 27. The domestic law and practice concerning detention with a view to extradition as it stood prior to 17 June 2010 is summarised in the judgment Soldatenko v. Ukraine (2440/07, §§ 21-29 and 31, 23 October 2008), 28. The Code of Criminal Procedure (Amendment) Act, which came into force on 17 June 2010, introduced a new chapter into the Code of Criminal Procedure regulating proceedings for extradition to and from Ukraine. The Act contained no transitional provisions. Relevant articles of this new chapter provide, among other things, as follows: “... Extradition detention - taking a person into custody to ensure his extradition. Provisional detention - taking a person, who has been detained on suspicion of committing crime outside Ukraine, into custody for a period determined by this Code or the international treaty of Ukraine until receipt of extradition request ...” “Taking into detention on the territory of Ukraine of a person who is wanted by a foreign State in connection with the commission of a crime, shall be carried out by a body of inquiry. The body of inquiry that carries out the detention shall immediately inform the prosecutor who supervises the observance of laws that it has been done. The notification of the prosecutor, accompanied by the record of the arrest, shall contain detailed information on the reasons and motives for the taking into detention. Upon receipt of notification, the prosecutor shall check the legality of the detention of the person who is wanted by the competent authorities of foreign States, and immediately inform the regional prosecutor. Within seventy-two hours of the arrest, the regional prosecutor’s office shall inform the central authority, which shall inform the competent authority of the foreign State within three days. Every case of detention of a foreign national who has committed crimes outside Ukraine shall also be reported by the regional prosecutor’s office to the Ministry of Foreign Affairs of Ukraine. The person detained shall be released immediately if: 1) Within seventy-two hours of the arrest he or she has not been served with a substantiated decision of the court on application of extradition detention or provisional detention; 2) it has been established that there are circumstances applying to the case under which extradition may not be carried out. The procedure of detention of such persons and examination of complaints about their detention shall be performed in accordance with Article 106 of the Code, taking into account the peculiarities established by this Chapter.” “A detained person who has committed a crime outside Ukraine shall be subject to provisional detention for forty days, or another period of time set out in the relevant international treaty of Ukraine, until an extradition request has been received. If the maximum period of provisional detention envisaged by paragraph 1 of this Article has expired, and no extradition request has been received in respect of this person, the person shall be released from custody immediately. The body of inquiry which arrested the person shall lodge, with the prosecutor’s approval, with the court local to the place of detention a warrant for provisional detention. The prosecutor shall be also entitled to lodge such a warrant. The warrant shall be accompanied by: 1) the record of the arrest of the person; 2) documents containing information about the crime or crimes committed by the person on the territory of a foreign State and the preventive measures used in respect of that person by the competent authority of the foreign State; 3) the detained person’s identity documents. The warrant shall be examined within seventy-two hours of the detention of the person. When examining the warrant, a judge shall establish the identity of the detained person, shall invite him or her to make a statement, shall check the presence of the documents envisaged by subparagraph 2 of paragraph 3 of this Article, shall hear the opinion of the prosecutor and of other participants and shall make a ruling on: 1) application of provisional detention; 2) refusal to apply provisional detention if there are no grounds for its application. The judge’s ruling can be appealed against to the court of appeal by the prosecutor, the person placed under provisional detention, or his or her counsel or legal representative, within three days of the date of the ruling. The lodging of an appeal against the judge’s ruling shall not suspend its entry into force or its execution. The ruling of the court of appeal shall not be subject to appeal, nor may the prosecutor appeal on points of law. The release of a person from provisional detention due to the belated arrival of an extradition request at the central authority shall not prevent the imposition of extradition detention if such a request is received later. If an extradition request is received prior to the expiry of the period of provisional detention fixed by the court, the judge’s ruling on the application of provisional detention becomes void from the date of the court ruling on the application of extradition detention to the person concerned.” “Upon receipt of an extradition request from the competent authority of a foreign State, the prosecutor, on the instruction (at the request) of the central authority, shall deposit a warrant for the extradition arrest of the person with the court at the place of the person’s detention. The warrant shall be submitted for examination by the court, with the following attachments: 1) a copy of the extradition request from the competent authority of the foreign State, certified by the central authority; 2) documents confirming the person’s nationality; 3) available materials from the extradition inquiry. Materials submitted to the court shall be translated into the official language, or another language as provided by an international treaty of Ukraine. On receipt of the warrant, the judge shall establish the identity of the person concerned, shall offer him or her the opportunity to make a statement, shall check the extradition request and the available materials from the extradition inquiry, shall hear the opinion of the prosecutor and of other participants, and shall make a ruling which will: 1) order extradition detention; 2) refuse to apply extradition detention if there are no grounds for its application. When examining the warrant, the judge does not examine the issue of guilt and does not review the lawfulness of procedural decisions taken by the competent authorities of the foreign State in the proceedings against the person whose extradition is requested. The judge’s ruling can be appealed against to the court of appeal by the prosecutor, the person placed under extradition detention, or his or her counsel or legal representative, within three days of the date on which the ruling was made. The lodging of an appeal against the judge’s ruling shall not suspend its entry into force or its execution. A ruling of the court of appeal shall not be subject to appeal, nor may the prosecutor appeal on points of law. Extradition detention shall be applied until the decision on the extradition of the person concerned and his actual surrender (extradition), but shall not last more than eighteen months. Within this period, and not less than once every two months , the judge at the place of the person’s detention shall examine, at the instigation of the prosecutor, what grounds there may be for further detention of the person or for his or her release. If the person placed under extradition detention, or his or her counsel or legal representative, makes a complaint, the judge at the place of the person’s detention shall check, but not more often than once a month, what grounds there may be for the person’s release. If the maximum period of extradition detention provided in paragraph 7 of this article has expired, and the issue of the person’s extradition and actual surrender has not been resolved by the central authority, the person shall be released immediately. The fact that the person has been released from extradition detention by the court does not preclude a new order for the detention of the person, for the purpose of actual surrendering that person to a foreign State in execution of the decision on extradition, unless otherwise stipulated by an international treaty of Ukraine. If person has been released from custody by the court, the regional prosecutor or his deputy, in agreement with the competent central authority, makes an order to apply other necessary measures to prevent the person from absconding and to ensure he is surrendered later. Such measures shall be sufficient to ensure that the decision to extradite can be put into effect, and can, in particular, include bail, restrictions on the person’s movement and control over his or her movements. Application of bail and of restrictions on the person’s movements shall be carried out in accordance with the procedure envisaged by Articles 98-1, 151 and 154-1 of this Code, taking into account the special aspects of this Chapter. The regional prosecutor or his deputy shall notify the person concerned and his or her counsel or legal representative of the order issued in respect of the person. The regional prosecutor or his deputy may entrust the body of inquiry with the execution of the order.” “A Provisional detention or extradition detention shall be terminated if: 1) the central authority, within the time-limits provided for by an international treaty of Ukraine, has not received a request for the person’s extradition; 2) an extradition inquiry reveals circumstances which preclude the person’s extradition; 3) The competent authority of a foreign State has refused to seek the person’s extradition; 4) the central authority decides to refuse the person’s extradition. The person’s release shall be carried out by the regional prosecutor or his deputy on the instruction at the (request) of the central authority and in the circumstances provided for in paragraph 2 of this Article, in agreement with the relevant central authority. A copy of the release decision shall be sent to the head of the pre-trial detention institution and to the court which decided on the application of provisional detention or extradition detention.” “... A person who has been granted refugee status may not be extradited to a foreign state where his health, life, or freedom is endangered for reasons of race, faith (religion), ethnicity, citizenship (nationality), membership of a particular social group or political opinion, unless otherwise provided by an international treaty to which Ukraine is a party. In the event of refusal of extradition on grounds of nationality, refugee status or other grounds that do not exclude proceedings in the case, at the request of the competent authority of a foreign state the General Prosecutor’s Office of Ukraine instructs a pre-trial investigation body to carry out an investigation of the criminal case against that person in accordance with the procedure prescribed by this Code.” 29. Section 3 of the Act reads: “No refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion. No refugee may be expelled or forcibly returned to a country where he or she may suffer torture and other severe, inhuman or degrading treatment or punishment, or to a country from where the refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion. This Article shall not apply to refugees convicted of a serious crime in Ukraine.”