CASE OF DUBOVIK v. UKRAINE
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
5. The applicant was born in 1978 and lives in Kyiv. 6. In February 2005 the applicant left Belarus for Ukraine. From that time on she has been residing in Ukraine with her family. 7. On 10 March 2006 the Deputy Prosecutor General of Belarus issued an arrest warrant in respect of the applicant on suspicion of aggravated trafficking in human beings and organised crime. 8. On 26 July 2007 the applicant was apprehended in Kyiv under an international arrest warrant with a view to her extradition issued on 21 June 2007 and a Belarus Interpol Bureau letter of 15 July 2007 to the Ukrainian authorities informing them that the applicant was on the territory of Ukraine and requesting them to find and arrest her with a view to extradition. She was thus separated from her newly-born child, who was exactly one month old when the applicant was apprehended. 9. On 27 July 2007 the Golosiyivskyy District Court of Kyiv (“the District Court”) ordered the applicant's detention for forty days pending an official request for her extradition to Belarus. On 6 August 2007 the Kyiv City Court of Appeal upheld that decision. 10. On 29 July 2007 the applicant applied for refugee status in Ukraine. 11. On 27 August 2007 the General Prosecutor's Office of Ukraine (“the GPO”) received an official request from the Deputy Prosecutor General of Belarus for the applicant's extradition to Belarus with the aim of prosecuting her for aggravated trafficking in human beings and organised crime. The request contained detailed information about criminal acts of which the applicant was suspected by the Belarusian authorities, as well as assurances that the applicant would be prosecuted only for these crimes, that she would be free to leave Belarus after her trial and serving a sentence, and that she would not be deported or expelled to any third country without Ukraine's consent. No decision was taken with regard to the above request. 12. On 3 September 2007 the District Court ordered the applicant's continued detention without a fixed time-limit and until the GPO had decided on her extradition to Belarus. The Kyiv City Court of Appeal upheld this decision on 13 September 2007. 13. On 12 September 2007 the President of the Chamber decided to apply Rule 39, indicating to the Government that the applicant should not be extradited to the Republic of Belarus. 14. By letter of 21 September 2007, the Belarusian General Prosecutor's Office sent to the First Deputy Prosecutor General of Ukraine assurances that, if extradited to Belarus, the applicant would not be subjected to any kind of treatment prohibited by Article 3 of the Convention, that she would receive a fair trial, and that the death penalty would not be applied in her case. 15. On 5 March 2008 the State Migration Committee (“the Committee”) granted the applicant refugee status. 16. On 6 March 2008 the applicant received a refugee certificate. 17. On 7, 14 and 21 March 2008 the applicant's lawyer lodged applications for her release with the District Court on the ground that the applicant had refugee status and therefore could not be extradited. 18. By letters of 12 and 31 March 2008, the District Court refused to consider the applications for release on the ground that there was a final and binding court decision ordering the applicant's detention pending extradition and that it was the prosecution service that was competent to decide whether there were grounds or not for the applicant's detention. 19. On 18 April 2008 the GPO lodged an objection with the Committee against its decision of 5 March 2008. The objection had the effect of suspending the Committee's decision. 20. On 5 May 2008 the Committee rejected the GPO's objection and confirmed its decision of 5 March 2008. 21. On 20 May 2008 the GPO made an objection to the decision of the Committee on the applicant's refugee status to the Regional Administrative Court of Kyiv (“the Kyiv Court”) and requested the suspension of the Committee's decision. 22. On 26 June 2008 the applicant's lawyer lodged an application for the applicant's release with the Kyiv Court under the Code of Administrative Justice. No decision was taken on this application. 23. On 9 July 2008 the Kyiv Court rejected the request for suspension of the Committee's decision pending the administrative proceedings. 24. On 21 July 2008 the Kyiv Court rejected the GPO's objection and confirmed the lawfulness of the Committee's decision of 5 March 2008. 25. On 23 December 2008 the Kyiv Administrative Court of Appeal (the Court of Appeal) overruled the decision of 21 July 2008 and cancelled the Committee's decision of 5 March 2008. 26. On 28 January 2009 the Highest Administrative Court decided to initiate the examination of the administrative case in cassation and suspended execution of the decision of 23 December 2008. 27. On 23 February 2009 the General Prosecutor's Office of Belarus informed their Ukrainian counterpart that the maximum eighteen-month time-limit for the applicant's pre-trial detention had expired and therefore her detention was replaced by an obligation not to abscond. On this ground the Belarus authorities asked the GPO to leave the extradition request without consideration and to release the applicant. 28. On 25 February 2009 the Deputy Prosecutor General ordered the applicant's release on the basis of the above request of the Belarus General Prosecutor's Office. On the same day the applicant was released. 29. On 1 April 2009 the Highest Administrative Court upheld the decision of the Court of Appeal. 30. Article 248¹ of the Code (Chapter 31-A) provided in so far as relevant: “Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms” 31. The relevant provisions of the Code read as follows: Section 2 Task of the administrative justice system “1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ... 2. Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...” Section 17 Competence of the administrative courts in deciding administrative cases “1. The competence of the administrative courts shall cover: ... 3) disputes between public authorities ... 4) disputes following an application by a public authority in the situations set forth by the law... 2. The competence of the administrative courts shall not cover public law cases: ... 2. that shall be decided under the criminal justice procedure ...” Section 117 Securing an administrative claim “1. The court, upon the request of the claimant or of its own motion, can render a ruling on taking measures for securing an administrative claim ... 3. The lodging of the administrative claim or the initiation of administrative proceedings in the case does not suspend the challenged decision of the public authority, but the court may, in order to secure the claim,, suspend the decision by a ruling to that effect ... 6. A ruling on securing an administrative claim can be appealed against. An appeal against the ruling does not stop its enforcement, and does not prevent further examination of the case.” Final and transitional provisions “...7. After the entry into force of this Code applications and complaints that derive from administrative law relations ... (Chapters 29-32 of the Code of Civil Procedure, 1963) ... shall be considered under the procedure established by this Code ...” 32. The relevant provisions of the Prosecution Service Act provided: Section 19 “Supervision over the compliance and application of laws “Supervision over the compliance and application of laws covers: 1) compliance of acts issued by all bodies, enterprises, institutions, organisations and public officials with the requirements of the Constitution of Ukraine and laws in force ...” Section 20 Competences of the prosecutor “...Having established a violation of the law the prosecutor or his deputy shall be competent: 1) to make objections to acts of ... ministries and other central bodies of the executive power ...” Section 21 Objection by the Prosecutor “An objection to an act which contradicts the law may be submitted by the prosecutor or his or her deputy to the body that issued the act in question or to a higher body ... An objection by the prosecutor shall have the effect of suspending the act objected to, and shall be subject to compulsory consideration by the relevant body ... within ten days of its receipt. The prosecutor shall be informed of the results of the examination of his/her objection within the same time-limit. Should the objection be rejected ... the prosecutor may apply to a court to have the act declared unlawful. An application to a court may be lodged within fifteen days of receipt of the notification of rejection of the objection ... The lodging of such an application shall suspend the legal act in question.” 33. Section 3 of the Act read: Section 3 Prohibition of expulsion or forced return of a refugee to the country from which he came and where his life or freedom is endangered “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.” 34. The relevant provisions of the Act provide: Section 1 “Under the provisions of this Law a citizen is entitled to compensation for damage caused by: (1) unlawful conviction, unlawful indictment, unlawful arrest and detention, unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights; (2) unlawful imposition of administrative arrest or correctional labour, unlawful confiscation of property, unlawful imposition of a fine; (3) the unlawful conduct of search and seizure activities foreseen by the Laws of Ukraine “on Search and Seizure Activities”, “on Organisational Legal Basis for Combating Organised Crime” and other legal acts. In the cases indicated in part 1 of this Section, the damage sustained shall be compensated in full irrespective of the guilt of the officials of the bodies of inquiry, the pre-trial investigative authorities, prosecutors and courts.” Section 2 “The right to compensation for damage in the amount of and in accordance with the procedure established by this Law shall arise in cases of: (1) acquittal by a court; (1-1) the finding in a judgment by a court or other decision by a court (except a ruling or decision of a court on remittal of the case for further investigation or for retrial) of the fact of unlawful indictment, unlawful arrest and detention, unlawful conduct of search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights, unlawful conduct of search and seizure activities; (2) the termination of a criminal case on the grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused's participation in the commission of the crime; (3) the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph 2 of part 1 of this section; (4) the termination of proceedings for an administrative offence. The right to compensation for damage caused by the search and seizure activities indicated in section 1 of this Law, conducted prior to the institution of criminal proceedings, arises in the cases set out in paragraph 1(1) of part 1 of section 1, or in cases in which no decision was taken on instituting criminal proceedings within six months of the conduct of such activities, as a result of which such activities ... were cancelled.” Section 3 “In the cases referred to in section 1 of this Law the applicant shall be compensated for ... (5) non-pecuniary damage.” Section 4 “... Compensation for non-pecuniary damage shall be awarded in cases in which unlawful actions by bodies of inquiry, pre-trial investigative authorities, prosecutors and courts have caused non-pecuniary losses to a citizen, led to disruption of his or her usual relations and required additional efforts for the organisation of his or her life. Non-pecuniary damage shall be defined as the suffering caused to a citizen due to physical or psychological influence which resulted in a deterioration or deprivation of his or her ability to act in accordance with his or her usual habits and wishes, a deterioration of relations with the people around him or her, and other adverse effects of a non-pecuniary nature.” 35. Other relevant domestic law and practice is summarised in the judgments Soldatenko v. Ukraine (2440/07, §§ 21-29 and 31, 23 October 2008) and Svetlorusov v. Ukraine (2929/05, § 32-34, 12 March 2009).