GORDYEYEV v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Vladimir Mikhaylovych Gordyeyev, is a Belarusian national who was born in 1957 and lives in Baranovitchi, Belarus. He was represented before the Court by Mr J. Woźniak and Mr W. Hermeliński, lawyers practising in Warsaw, Poland. The respondent Government were represented by their Agents, Mr K. Drzewicki, and subsequently by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 June 1997 the Prosecutor of the Republic of Belarus in the Brest Region (Следователь Прокуратуры Республики Беларусь Ђрестскoй области) ordered that the applicant be detained in connection with charges of forgery of documents and selling a stolen car that had meanwhile been laid against him. The prosecuting authorities further issued a search warrant in respect of the applicant. Having established that the applicant had left the country, the Belarusian authorities issued in his respect an international search and arrest warrant. On 7 July 1997 the Prosecutor of the Republic of Belarus, relying on Article 66 of the Agreement of 26 October 1994 between the Republic of Poland and the Republic of Belarus on Legal Assistance and Legal Relations in Civil, Family, Labour and Criminal Matters (Umowa między Rzecząpospolitą Polską a Republiką Białoruś o pomocy prawnej i stosunkach prawnych w sprawach cywilnych, rodzinnych, pracowniczych i karnych) (“the 1994 Agreement”), asked the Polish Ministry of Justice to extradite the applicant. On 18 July 1997 the applicant was arrested in Warsaw under the above-mentioned international search and arrest warrant and, on the next day, brought before the Warsaw District Court (Sąd Rejonowy). The court, having regard to the provisions of the 1994 Agreement, ordered that the applicant be detained pending extradition until 18 August 1997. On 29 July 1997 the District Court prolonged the applicant's detention until 18 October 1997. On 11 August 1997 the Warsaw Regional Prosecutor (Prokurator Wojewódzki) asked the Warsaw Regional Court (Sąd Wojewódzki) to issue a ruling as to whether the applicant's extradition to Belarus was permissible. On 9 September 1997 the applicant applied for asylum. On 15 September 1997 the applicant's lawyer requested the Regional Court to adjourn consideration of the extradition request until the termination of the asylum proceedings. Alternatively, the applicant's lawyer requested that the court rule against the applicant's extradition. He also requested the applicant's release. On 18 September 1997 the Regional Court considered the matter. In view of a formal shortcoming in the extradition request, it decided to ask the Belarusian authorities, through the Ministry of Justice, for rectification of that shortcoming. That request was submitted to the Ministry on 25 September 1997. The Regional Court further asked the Minister of the Interior and Administration for information on whether the applicant had applied for asylum in Poland. It also dismissed the applicant's request for release, considering that there was a risk that he would leave Poland. On 23 September 1997 the Regional Court requested the Ministry of the Interior and Administration to provide information on the asylum proceedings. On 28 September 1997 the applicant requested the Regional Court to release him on bail. He argued that the charges against him were unsupported by any evidence and that they in fact constituted a form of punishment for his political activities in a Belarusian opposition movement. That application was referred to the Warsaw Regional Prosecutor who, at that stage of the procedure, was competent to deal with it. On 8 October 1997 the Regional Prosecutor refused to release the applicant on the grounds that the charges against him had been sufficiently supported by evidence produced by the Belarusian authorities and that there was a risk that he would go into hiding. The applicant appealed to the Warsaw Prosecutor of Appeal (Prokurator Apelacyjny) on 17 October 1997. He argued that he had never gone into hiding, which, he added, was clearly shown by the fact that his stay in Poland was, and had been, legal, that he had had a place of residence and that he had worked in Poland. He also stressed that he had suffered from depression and had received treatment in Poland. On 3 December 1997 the Prosecutor of Appeal upheld the decision of the Regional Prosecutor. In the meantime, on 16 October 1997, the Warsaw Regional Court granted the Regional Prosecutor's application for the applicant's detention to be prolonged. The Court ordered that the applicant be held in custody until 18 January 1998. The applicant appealed on 23 October 1997. He submitted, inter alia, that, pursuant to Article 535 § 4 of the Code of Criminal Procedure (“the 1969 Code”), his detention should have been lifted because the requesting State had not produced the necessary evidence in support of the extradition request within one month. He stressed that the Regional Court's request for the rectification of formal shortcomings had still not been forwarded to the Belarusian authorities. It was posted, after 7 days, to the Ministry of Justice, which subsequently decided that it had no competence to deal with the matter and referred it to the State Prosecutor (Prokurator Krajowy). The State Prosecutor decided that he had no competence to handle it either. He referred it back to the Ministry of Justice on 20 October 1997. The applicant concluded that his detention was no longer lawful. On 31 October 1997 the contested decision was upheld by the Warsaw Court of Appeal (Sąd Apelacyjny). The court stressed that the applicant's detention was the only preventive measure which could ensure the proper conduct of the extradition proceedings. On 13 November 1997 the Regional Court again requested the Ministry of Justice to enquire with the Belarusian authorities about rectification of their extradition request. On 25 November 1997 the Ministry of the Interior and Administration informed the Regional Court that the asylum proceedings were pending. On 16 January 1998 the Regional Prosecutor submitted to the Warsaw Regional Court supplementary information produced by the Belarusian authorities. In the meantime, on 13 January 1998, the Warsaw Court of Appeal had prolonged the applicant's detention until 18 April 1998. It relied, inter alia, on the risk that the applicant would go into hiding. The applicant appealed to the Supreme Court (Sąd Najwyższy) on 19 January 1998. He asked to be released on bail and argued that his detention had been unlawful because the Belarusian authorities had not yet rectified shortcomings in their request for extradition. He alleged, inter alia, a violation of Article 535 § 4 of the 1969 Code and a breach of Article 5 § 3 of the Convention. On 24 March 1998 the Supreme Court rejected the appeal. It considered that the lifting of the applicant's detention was not, as he claimed, mandatory pursuant to Article 535 § 4 of the 1969 Code because the application of that provision was excluded by a special rule laid down in Article 541. In consequence, the applicable provision was Article 73 of the 1994 Agreement, under which the lifting of detention in such circumstances was optional. The Supreme Court also observed that the prolongation of detention was necessary in order to ensure the proper conduct of the extradition proceedings in view of the risk that the applicant would go into hiding. Lastly, the Supreme Court pointed out that there had been no circumstances in the case which would justify the applicant's release pursuant to Article 218 of the 1969 Code. On 3 April 1998 the Ministry of the Interior and Administration informed the Regional Court that the applicant's request for asylum was being examined by the Ministry of Foreign Affairs. On 9 April 1998 the Warsaw Court of Appeal prolonged the applicant's detention until 18 July 1998. It considered that the original grounds for keeping him in custody were still valid and that there were no grounds for releasing him, as provided in Article 218 of the 1969 Code. It stressed that there were justified fears that the applicant would go into hiding because he had already been wanted under the international search and arrest warrant. The applicant's appeal against that decision was dismissed by the Supreme Court on 27 May 1998. The Supreme Court considered that the applicant's continued detention was necessary in order to secure the proper conduct of the extradition proceedings, taking into account that the asylum proceedings were still pending. The Regional Court's session scheduled for 17 April 1998 was cancelled due to an illness of the presiding judge. On 16 June 1998 the Regional Court held a session. It adjourned its examination of the extradition request since the applicant had applied to the Minister of the Interior and Administration for reconsideration (wniosek o ponowne rozpatrzenie sprawy) of the decision refusing to grant him asylum. The court also dismissed the applicant's request for release. On 29 June 1998 the Ministry of the Interior and Administration notified the Regional Court that the asylum proceedings should be terminated by October 1998. On 9 July 1998 the Supreme Court prolonged the applicant's detention pending extradition until 31 December 1998. It emphasised that the asylum proceedings were still pending. On 23 October 1998 the Regional Court requested the Ministry of the Interior and Administration to provide information on the progress of the asylum proceedings. On 9 November 1998 the Ministry replied that the applicant's asylum request had been rejected by the final decision of 9 October 1998. The Regional Court's session scheduled for 7 December 1998 was cancelled. On 16 December 1998 the Regional Court held a session. It adjourned the consideration of the extradition request since the applicant had in the meantime applied for review of the unfavourable asylum decisions by the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 22 December 1998 the Supreme Court prolonged the applicant's detention pending extradition until 31 March 1999. It stressed that the delay in the extradition proceedings had been caused by circumstances which could not be attributed to the court before which those proceedings were pending. On 2 February 1999 the Supreme Administrative Court informed the Regional Court that the asylum proceedings were still pending. On 25 March 1999 the Supreme Court prolonged the applicant's detention until 18 July 1999. It considered that the extradition procedure had been prolonged on account of circumstances for which the Polish judicial authorities could not be held responsible. In particular, it emphasised that the need to await the outcome of the asylum proceedings brought by the applicant had made it impossible for them to rule on the extradition request. Were the applicant to be granted asylum, he could not be extradited pursuant to the relevant provisions of the Code of Criminal Procedure. The court went on to find that the relevant material strongly supported a reasonable suspicion that the applicant had committed the offences with which he had been charged and concluded that the previous reasons for his detention were still valid. On 20 April 1999 the Supreme Administrative Court informed the Regional Court that the asylum proceedings were still pending. On 14 July 1999 the Supreme Court ordered that the applicant be held in detention pending extradition until 18 January 2000. It considered, inter alia, that keeping him in detention was necessary pending the asylum proceedings. On 28 July 1999 the applicant requested the Regional Court to order his release. That request was rejected on 5 August 1999. On 30 December 1999 the Regional Court made an application to the Supreme Court for prolongation of the applicant's detention pending extradition until 30 April 2000. On 11 January 2000 the Supreme Court refused that application. On 17 January 2000 the Regional Court ruled that the applicant's extradition was permissible. It observed that the applicant had been charged with an ordinary criminal offence of appropriation of property. It also found that the applicant's allegations of his persecution on account of his activities in the Belarusian opposition group had not been corroborated by evidence. It also noted in this respect that the applicant's inconsistent submissions indicated that he had attempted to avoid criminal responsibility for the offence in question. On the same date the Regional Court prolonged the applicant's detention until 1 March 2000. The applicant appealed to the Court of Appeal on 22 January 2000. He alleged, among other things, a breach of Articles 3 and 6 § 1 of the Convention. He maintained that all available sources, for example reports of international human rights organisations and daily press materials, consistently showed Belarus as a country that did not respect fundamental human rights. Reported instances of unlawful arrests and unfair trials, as well as of beating and maltreatment were so wide-spread that they justified the applicant's fears that if he were extradited, he would be denied a fair trial and would be subjected to inhuman and degrading treatment in Belarusian prisons. Lastly, the applicant submitted that he had already informed the Polish authorities that between 10 and 20 October 1996 he had been arrested by the Belarusian police in connection with his participation in an anti-government demonstration. In his opinion, all those circumstances showed that the request for extradition was made for the purpose of punishing him for his political activities. The Court of Appeal upheld the contested decision on 18 February 2000. On the same day the applicant asked the Court to apply Rule 39 of its Rules of Procedure and to stop his extradition to Belarus. That application was rejected on 21 February 2000. On 23 February 2000 the Warsaw Court of Appeal gave a decision fixing the final deadline for the applicant's detention in the extradition proceedings for 31 July 2000. That decision was upheld on appeal on 18 April 2000. The applicant was extradited to Belarus on 28 April 2000. On 9 September 1997 the applicant, while in detention pending extradition, applied to the Minister of the Interior and Administration for asylum in Poland. He submitted that for many years he had been a member of a Belarusian dissident organisation, i.e. the People's Belarusian Front “Restitution” (Ludowy Front Białoruski “Odrodzenie”) and that, because of his political activity, he risked revenge from the State authorities. He further alleged that the charges against him were based on entrapment by a former officer of the KGB. The Minister of the Interior and Administration, pursuant to section 10 § 1 of the Aliens Act, requested the Minister of Foreign Affairs to issue an opinion on the applicant's request. On 24 August 1998 the Minister of Foreign Affairs objected to the grant of asylum. This decision was upheld on appeal on 29 September 1998. The Minister of Foreign Affairs, having made relevant inquiries, found no reliable evidence of the applicant's alleged activities in the opposition movement in Belarus. It also observed that the applicant had applied for asylum only after he had been detained with a view to extradition, while he had had sufficient time to do so earlier. On 21 April 1998 the Minister of the Interior and Administration rejected the applicant's request for asylum. He upheld his decision on 9 October 1998. The Minister found that the actions of the Belarusian prosecuting authorities against the applicant had not been politically motivated. He observed that there had been many inaccuracies in the applicant's account given in support of his asylum request. He also considered that the applicant lacked even basic knowledge about the opposition group of which he had allegedly been a member. The Minister further observed that the applicant had applied for asylum only after he had been placed in detention pending extradition despite the fact that during the period of his alleged persecution he had been in Poland on a few occasions. It noted that at the relevant time the applicant had left Belarus legally and that he had travelled back to his home country on two occasions. Furthermore, he did not apply for asylum immediately after he had entered Poland, but instead took steps to regularise his stay in Poland. Those facts indicated, in the Minister's view, that the applicant had no reason to fear for his life or limb and that his application for asylum constituted an abuse of the relevant procedures. On an unspecified date in October 1998 the applicant appealed to the Supreme Administrative Court against the unfavourable decisions of both Ministers. On 21 December 1999 the Supreme Administrative Court dismissed the applicant's appeal. It upheld the findings of the Ministers and considered that the applicant could not be granted asylum as he had not demonstrated that he had been persecuted in Belarus on account of his alleged political activities in the opposition movement. In his application of 18 February 2000 the applicant stated that during his detention his correspondence had been opened and intercepted by the Polish authorities. He has not submitted any documentary or other evidence in support of his submissions. In his application of 18 February 2000 the applicant submitted that if he were extradited to Belarus, he would be exposed to a serious risk of torture and be denied a fair trial. He relied on the fact that he was a member of the People's Belarusian Front “Restitution” and that he had received from that organisation a silver medal for his activity. He further produced a copy of the document entitled “Information of the Belarusian Helsinki Committee on Violation of Human Rights in December 1997- January 1998”. In the opinion of the authors of that document, the Belarusian authorities were responsible for several physical attacks on persons criticising President Lukashenko, as well as on independent journalists. Those attacks were carried out by unknown persons. Culprits had not been found. The authorities had also made some attempts to discredit their political opponents by, for instance, bringing criminal proceedings against them. That document also described the very difficult conditions of detention in Belarusian prisons. Until 1 September 1998, i.e. the date on which the Law of 6 June 1997 (commonly referred to as the “new Code of Criminal Procedure”) entered into force and repealed the 1969 Code, the rules governing detention and extradition proceedings were contained in the latter statute. Article 218 of the 1969 Code read: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1) it may seriously jeopardise the life or health of the accused; or (2) it would entail excessively serious repercussions for the accused or his family.” Article 534 § 1 read: “Extradition shall be refused if a person to be extradited is a Polish national or has been granted asylum in Poland.” Article 535 § 4 specified: “If information contained in a request for extradition is insufficient and the court or the prosecutor has asked for it to be supplemented and if, within one month following the date on which [the requesting State] has been served with the request for supplementary information, [that State] has not produced the necessary documents or information, detention shall be lifted.” Article 541 § 1 provided: “The provisions of this Chapter shall not apply if an international agreement, to which the Republic of Poland is a party, provides otherwise.” Article 66 of that Agreement reads, in so far as relevant: “1. Upon a request and subject to the provisions of this agreement, the Contracting Parties undertake to surrender to each other persons who are on their territory in order to proceed against them for an offence or to carry out a sentence.” Article 70 reads: “If the information communicated [by the requesting Contracting Party] is not sufficient to allow [the requested Contracting Party] to rule on a request for extradition, the requested Contracting Party may ask for the information to be supplemented. To this end, the requested Contracting Party may fix a time-limit of up to one month [for the receipt thereof]. If there are important grounds [for doing so], that time limit may be prolonged for a [further] month on the request of the requesting Contracting Party.” Article 71 provides: “After the receipt of the request for extradition, the requested Contracting Party shall promptly take steps to detain the person concerned. This shall not apply to cases where it is evident that extradition is not admissible under this agreement.” Article 73 lays down the following: “The requested Contracting party may release the person detained pursuant to Article 71 if no supplementary information has been produced within the time-limit laid down in Article 70.”