CASE OF KHOMULLO v. UKRAINE
Preliminary objection dismissed (Article 35-3 - Ratione personae);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
6. The applicant was born in 1976 and lives in Murmansk, Russia. 7. In November 2008 the Murmansk Regional Prosecutor’s Office in Russia instituted criminal proceedings against him on suspicion of fraud. The applicant had been working as a police officer and was suspected of having obtained by fraud a number of sick leave certificates justifying his absence from work. 8. On 24 November 2008 the applicant arrived in Ukraine. 9. On 1 December 2008 he was placed on the list of wanted persons by the Murmansk Regional Department of the Interior. 10. On 3 December 2008 the Oktyabrskiy District Court of Murmansk ordered the applicant’s arrest. On the same date an international arrest warrant was issued. 11. On 19 April 2010 the applicant was arrested by the Ukrainian police with a view to his extradition. 12. On 22 April 2010 the Prymorskyy District Court of Odessa (“the Prymorskyy Court”), following an application from the prosecution authorities, remanded the applicant in custody for forty days pending the extradition procedure. 13. On 29 or 30 April 2010 (both dates are mentioned in different case-file materials) the General Prosecutor’s Office of Ukraine (“the GPOU”) received a request from its Russian counterpart about the applicant’s extradition and the extension of his detention pending extradition. As noted in that request, there were criminal proceedings against the applicant pending in Russia on suspicion of fraud. The extradition request did not contain any further details in that regard, but mentioned that “a detailed description of the charges against [the applicant was] in the enclosed documents”. It is not known what enclosures were attached to the request in question. 14. It appears from the judicial ruling of 30 July 2010 (see paragraph 25 below) that on 11 May 2010 the GPOU received another request from the Russian prosecution authorities about the applicant’s detention and extradition. There is no mention of that request in any other documents in the case file. 15. On 19 May 2010 the Prymorskyy District Prosecutor’s Office applied to the Prymorskyy Court for an extension of the applicant’s detention “pending resolution of the issue of his extradition”. 16. On 21 May 2010 the Prymorskyy Court allowed that application. 17. On 26 May 2010 the applicant appealed. He complained that he had not been familiarised with the charges against him, that no time-limit for his detention had been set, and that the Prymorskyy Court had announced the contested decision following a hearing at which he had not been present. 18. On 3 June 2010 the Odessa Regional Court of Appeal examined the applicant’s appeal in a hearing at which two prosecutors were present, but in the absence of the applicant. The prosecutors submitted that the applicant’s extradition to Russia was all but settled and would take place shortly thereafter. Having regard to those arguments and noting that an international arrest warrant had been issued in respect of the applicant, the appellate court upheld the lower court’s decision extending his detention pending extradition. 19. On 21 June 2010 the Malynivskyy District Prosecutor’s Office applied to the Malynivskyy District Court of Odessa (“the Malynivskyy Court”) for an extension of the applicant’s “extradition detention” pursuant to the legislative amendments to the Code of Criminal Procedure in force since 17 June 2010 (see paragraph 37 below). 20. On 23 June 2010 the Malynivskyy Court allowed the above application and ordered that the applicant’s extradition detention be extended “pending resolution of the question of his extradition and the actual transfer”. 21. On 25 June 2010 the applicant appealed against the above ruling. He submitted that the time-limits for his detention remained unspecified, that he was still unaware of the charges against him, that his detention had been unreasonably long and that the court had not taken into account the fact that he had two young children. 22. On 8 July 2010 the Odessa Regional Court of Appeal allowed his appeal in part. It quashed the aforementioned ruling on the grounds that the respective provision of the Code of Criminal Procedure did not provide for any extension of extradition detention. The case was remitted to the first-instance court for a fresh examination. 23. On 21 July 2010 the Malynivskyy Court allowed the applicant’s request for a lawyer to be appointed for him. As a result, the hearing was adjourned till 30 July 2010. 24. On 27 July 2010 the Malynivskyy Prosecutor’s Office lodged a new application with the court for the applicant’s extradition detention pursuant to the amendments to the Code of Criminal Procedure. This time it concerned the imposition of such detention, rather than its extension. 25. On 30 July 2010 the Malynivskyy Court, following a hearing in the presence of the lawyer appointed for the applicant, allowed the prosecutor’s application. The ruling mentioned that the Russian prosecution authorities had lodged a request for the applicant’s extradition on 11 May 2010, without any reference to the similar request of 30 April 2010 (see paragraphs 13 and 14 above). The court relied on the aforementioned CCP amendments effective since 17 June 2010 and stated that the extradition inquiry case-file materials complied with the applicable legislation. Lastly, the court noted that it had not established any impediments to the applicant’s extradition to Russia. 26. On 21 August 2010 the applicant complained to the Malynivskyy Court that his detention was unlawful and asked to be released. The case file does not contain a copy of this complaint. 27. On 30 August 2010 the General Prosecutor’s Office of the Russian Federation sent an updated extradition request in respect of the applicant, of which there is no copy on the case file. It appears that, in addition to the initial fraud charge, six other counts of fraud were imputed to the applicant (see paragraph 28 below). 28. On 1 September 2010 the GPOU decided to extradite the applicant to Russia in connection with six episodes of fraud but rejected the extradition request in respect of one such episode. That decision was explained by the fact that Ukrainian criminal law normally does not prescribe imprisonment as a penalty for fraud. However, where fraud has been committed repeatedly, it can be punished by imprisonment. In the applicant’s case there were six “repeated fraud” episodes. The GPOU decision referred to two extradition requests relating to the applicant: one of 30 April 2010 regarding one episode of fraud and one of 30 August 2010 regarding six further episodes (see paragraphs 13 and 27 above). 29. On 10 September 2010 the applicant complained to the Malynivskyy Court that his detention was unlawful and had been unreasonably long. He argued that the Ukrainian authorities had not been diligent in dealing with the extradition requests in his respect, in contravention of Article 5 § 1 (f) of the Convention. The applicant further referred to Article 5 § 4 of the Convention and submitted that his earlier complaint, of 21 August 2010, had never been examined. 30. On 17 September 2010 the applicant lodged another complaint with the Malynivskyy Court concerning the alleged unlawfulness of his detention and asked to be released. 31. On 22 September 2010 the Malynivskyy Prosecutor’s Office applied to the Malynivskyy Court for an extension of the applicant’s extradition detention. It referred to the aforementioned decision of 1 September 2010 and noted that the issue of the applicant’s actual transfer back to Russia was being decided. 32. On 28 September 2010 the court granted that application in a hearing attended by the applicant. It noted that the GPOU’s decision of 1 September 2010 had not been challenged and had come into force. Furthermore, pursuant to the respective prosecutor’s instructions, the applicant was to be transferred to Russia by 29 October 2010. As reported in the minutes of the hearing, the judge read out the applicant’s complaints of 21 August and of 10 and 27 September 2010, and the applicant reaffirmed them. The court ruling did not, however, mention those complaints. 33. On 30 September 2010 the applicant challenged the above ruling on appeal. He noted that, while the Code of Criminal Procedure provided for extradition detention of up to eighteen months, it did not establish any time-limits for submitting and examining the associated extradition request. Accordingly, the applicant argued that the Ukrainian authorities should abide by the 1993 Minsk Convention, which provided for a one-month time-limit for submitting an extradition request once the person was detained and a maximum two-month extension of that time-limit for supplementing the extradition request if need be (see paragraph 38 below). He emphasised that in his case a duly completed extradition request had not been submitted until 30 August 2010, whereas he had been in detention since 19 April 2010. The applicant therefore argued that he should be released immediately. Lastly, he submitted that the charges against him were ridiculous and that it was in his own interests to go to Russia so that his trial could be completed without delay. 34. On 8 October 2010 the appellate court, while allowing the applicant’s appeal in part, modified the first-instance court’s ruling as follows: instead of the extension of the applicant’s extradition detention, which was not provided for in the legislation, his continued detention was found to be lawful, since its maximum time-limit of eighteen months had not been exceeded and there were no grounds for the applicant’s release. 35. On 12 October 2010 the applicant was extradited to Russia.