Last Updated on April 28, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 34508/17
Yury PASTUKHOV
against Poland
The European Court of Human Rights (First Section), sitting on 4 February 2020 as a Committee composed of:
Pere Pastor Vilanova, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 1 May 2017,
Having regard to the declaration submitted by the respondent Government on 19 June 2018 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Yury Pastukhov, is a Russian national, who was born in 1977 and lives in Prague, Czech Republic. He was represented before the Court by Mr J. Lewandowski, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs.
3. The applicant complained that his detention pending extradition had been in breach of Article 5 § 1 (f) of the Convention. He also made complaints related to the risks entailed in the decision to have him extradited to Russia. To that end he essentially complained under Articles 2, 3 and 8 of the Convention, and under article 4 of Protocol No. 7 to the Convention
4. The part of the application concerning the complaints under Article 5 § 1 (f) of the Convention had been communicated to the Government. The reminder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE LAW
A. The Government’s unilateral declaration
5. The applicant complained under Article 5 § 1 (f) of the Convention, that his detention from 9 December 2015 until 13 October 2017 had been unjustified and lengthy; that the extradition proceedings had been conducted with unnecessary delays and without the due diligence and special expedition required for this type of case; and that he had not been able to attend the appellate court hearing at which the interlocutory appeal against the extradition decision of 23 November 2016 had been examined.
6. He also complained under the same provision that his detention, from the transfer of his extradition case to the Minister of Justice until his release, had been unlawful. In particular, the applicant argued that the Suwałki Regional Court extended the measure in question of its own motion, whereas the law required that such an extension be sought by the Minister of Justice (Articles 250 § 2 (1) and (2) and 603 § 5 of the Code of Criminal Procedure).
7. After the failure of attempts to reach a friendly settlement, by a letter of 19 June 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
8. The declaration provided as follows:
“The Government hereby wish to express – by way of unilateral declaration – their acknowledgement that the applicant was deprived of liberty in breach of Article 5 § 1 (f) of the Convention. Simultaneously, they declare that they are ready to pay the applicant the sum of 12,000 Polish zlotys (twelve thousand Polish zlotys) which they consider to be reasonable in the light of the individual circumstances of the present case, as well as the Court’s case-law in similar cases (…). The sum referred to above, which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. …
The Government respectfully suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention …”
9. By a letter of 19 July 2018, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the grounds that the amount proposed by the Government was unacceptably low as it did not cover his non-pecuniary damage or the costs and expenses which he and his family had necessarily incurred.
10. As to the latter, the applicant submitted itemised particulars of his Polish lawyer’s fees related to the proceedings before the Polish courts, together with relevant supporting documents. According to the bills in question the applicant and his mother, were billed 27,300 United States dollars (approximately 24,300 euros (EUR)) by a lawyer in Poland.
11. The applicant also submitted two invoices for a total of 700,000 Russian rubels (approximately 9,430 EUR). These were issued by a private company in 2016. The applicant claimed that the invoices in question corresponded to the fees of his Russian lawyer.
12. Lastly, the applicant stated that the travelling expenses borne by his mother who went to see him twice a month in connection with the proceedings, and some related expenses of his other relatives, amounted to EUR 23,000. Submitted to the Court is also a written statement made by the applicant’s mother estimating the above-mentioned travelling costs at EUR 12,750 (including, estimated EUR 50 per day for accommodation and EUR 250 for each journey). No documents have been furnished in support of this part of the claim.
13. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
14. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
15. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
16. The Court has established in a number of cases its practice concerning complaints about the violation of Article 5 § 1 (f) of the Convention (see, mutatis mutandis, Suso Musav. Malta, no. 42337/12, §§ 89-107, 23 July 2013; Amie and Others v. Bulgaria, no. 58149/08, §§ 71‑79, 12 February 2013; and A.N. and Others v. Russia, nos. 61689/16, §§ 31-35, 23 October 2018).
17. Having regard to the nature of the admissions contained in the Government’s declaration, the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
18. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
19. The Court considers that this amount should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
20. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
21. In view of the above, it is appropriate to strike the case out of the list.
B. Costs and expenses
22. Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court …”
23. The applicant made a claim for costs and expenses incurred in the proceedings before the domestic courtsamounting to approximately EUR 33,730. That sum included costs of legal representation by lawyers practising in Poland and in Russia. Copies of relevant invoices have been provided.
24. The Government did not comment on this claim.
25. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.
26. The Court observes that the costs of the applicant’s legal representation before the Polish courts costs, which were claimed and documented by the applicant, were incurred for the purpose of fighting the applicant’s extradition from Poland. The present decision does not relate to the merits of the impugned extradition proceedings, that part of the applicant’s original application having been declared inadmissible (see paragraphs 3 and 4 above). It follows that, in so far as the present ruling only concerns the applicant’s detention pending those extradition proceedings, the Court considers that only a part of the above-mentioned costs was actually and necessarily incurred in relation to the subject matter at hand (compare with mutatis mutandis, Ahmed v. United Kingdom (dec), no. 31668/05, 14 October 2008; Meriakri v. Moldova (strike out), no. 53487/99, § 33, 1 March 2005; and Gil v. Poland (strike out), no. 46161/11, 4 June 2013; and Hernandez v. Poland (strike-out), 56876/13,13 October 2015). The same cannot be said in respect of the fees of a lawyer in Russia or the travelling expenses of the applicant’s relatives.
27. Regard being had to the information in its possession, and the above criteria and considerations, the Court considers it reasonable to award the applicant the sum of EUR 8,100 covering the costs of the legal representation for the purpose of the proceedings before the domestic courts in so far as they related to the applicant’s extradition detention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 5 § 1 (f) of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Holds that the respondent State is to pay the applicant, within three months, EUR 8,100 (eight thousand one hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into Polish zlotys at the rate applicable at the date of settlement;
Holds that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on27 February 2020.
Renata Degener Pere Pastor Vilanova
Deputy Registrar President
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