Last Updated on May 20, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 2669/13
Vitaliy ZHERNIN
against Poland
The European Court of Human Rights (First Section), sitting on 25 September 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 10 December 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vitaliy Zhernin, is a Ukrainian national who was born in 1985 and is detained in Warsaw. He was represented before the Court by Mr L. Chojniak, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, who was later replaced by Ms A. Mężykowska, the Co-Agent, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 11 April 2009 the applicant was detained on remand in connection with criminal charges against him.
5. On 15 December 2010 the Warsaw Regional Court convicted the applicant of homicide and sentenced him to twenty-five years’ imprisonment. The judgment was upheld on appeal by the Warsaw Court of Appeal on 29 April 2011. It is final.
6. On 15 March 2012 the applicant requested the Polish authorities to be transferred to Ukraine in order to serve the remainder of his sentence.
7. On 2 May 2012 the Minister of Justice, on the basis of Articles 610 (2) and 611 of the Code of Criminal Procedure, applied to the court to establish whether it would have been admissible to transfer the applicant to Ukraine in order to serve the remainder of his sentence.
8. On 17 July 2012 the Warsaw Regional Court gave a decision in which it considered admissible such a transfer (“stwierdza dopuszczalność przekazania”). The court considered that the applicant was a Ukrainian national and, at the time of his arrest, he had no place of residence in Poland. The court concluded that the conditions for taking over execution of the Polish sentence were met and found no legal obstacles preventing the transfer.
9. On 19 November 2012 the applicant was informed in a letter that the Minister of Justice objected to his transfer to Ukraine. The letter stated as follows:
“In connection with the proceedings concerning your transfer to Ukraine for the purpose of continuing to serve your prison sentence there, [I] inform you that the Minister of Justice did not agree to your transfer to Ukraine. Given the Minister’s position we consider the matter closed.”
10. On an unspecified date the applicant repeated his request for transfer.
11. On 28 November 2014 the applicant received another letter informing him of the Minister’s decision. The letter reads as follows:
“In connection with the proceedings concerning your transfer to Ukraine for the purpose of continuing to serve your prison sentence there, [I] inform you that the Minister of Justice did not agree to your transfer to Ukraine. There is no remedy to challenge the Minister’s decision.
The reason for [the Minister’s] refusal was the nature of the offence committed by you and the legal system in Ukraine which provides the maximum penalty of fifteen years’ imprisonment for the offence committed by you.”
12. The applicant repeated his request for transfer.
13. On 29 October 2015 the Minister of Justice refused his request on the same grounds as before.
14. The applicant continues to serve his prison sentence in Poland.
B. Relevant law
1. The Code of Criminal Procedure
15. Article 610 of the Code of Criminal Procedure, in so far as relevant, reads as follows:
“1. If a foreign national has been validly and finally sentenced by a Polish court to a penalty of deprivation of liberty subject to execution …, the Minister of Justice may request an appropriate agency of the foreign state whose national is the sentenced person … to take him over with the purpose of serving his sentence.
a. if that person is a national of the administering State; …”
2. The Minister of Justice, before making the request referred to in § 1 above, shall apply to the relevant court to issue a decision on admissibility of the transfer of the ruling to be executed abroad.”
16. Article 611 of the Code indicates which court is competent to deal with the Minister’s request.
2. The Convention on the Transfer of Sentenced Persons (ETS no. 112) and the Additional Protocol thereto (ETS no. 167)
17. The objectives of the 1983 Transfer Convention, including its Additional Protocol of 1997, are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. The Preamble to the Transfer Convention states that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.
18. Its provisions, in so far as relevant, read as follows:
Article 1 – Definitions
“For the purposes of this Convention: …
c. “sentencing State” means the State in which the sentence was imposed on the person who may be, or has been, transferred;
d. “administering State” means the State to which the sentenced person may be, or has been, transferred in order to serve his sentence”.
Article 3 – Conditions for transfer
“1. A sentenced person may be transferred under this Convention only on the following conditions:
a. if that person is a national of the administering State; …”
COMPLAINT
19. The applicant complained under Articles 6 and 8 of the Convention of the authorities’ refusal to transfer him to Ukraine to serve the remainder of his sentence.
THE LAW
20. The applicant complained that the Minister of Justice had arbitrarily refused his request to serve the remainder of his sentence in Ukraine. The Polish authorities’ refusals amounted to a breach of Articles 6 and 8 of the Convention. The applicant further complained that the situation amounted to a breach of his right to respect for his family life as, due to the distance between his home town in Ukraine, where his family resided, and the prison in Poland, he had not seen his family often enough. These provisions read as follows, in so far as relevant:
Article 6
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
21. The Government submitted firstly that Article 6 of the Convention was not applicable to the proceedings under the Transfer Convention. Moreover they argued that the complaint under Article 8 was manifestly ill‑founded. As regards the refusal to transfer the applicant to Ukraine, the Government stated that the decision on admissibility of the transfer issued by a domestic court was a necessary prerequisite for it; however, there had been no obligation for the authorities to follow that decision. The Minister of Justice remained the sole authority responsible for requesting a foreign State to accept its national for the purpose of serving his sentence. The Minister of Justice would take his decision taking into account particular considerations related to national and foreign policy and principles of criminal law. In this connection, the Government underlined that the applicant had been convicted for brutal homicide and sentenced to twenty‑five years’ imprisonment. However, that offence was punishable in Ukraine by a maximum penalty of fifteen years, thus upon his transfer the applicant would obtain an automatic reduction of his sentence by at least 40%. Such reduction of a custodial punishment would be in breach of the principles of the Polish criminal system. The Government concluded that the Polish authorities were under no obligation to allow the transfer of the applicant to Ukraine and their refusal to do so had been justified.
22. As regards the applicant’s complaint that the distance from his family breached his right to respect for family life, the Government underlined that the authorities had been regularly granting him family visits. He received visits from his friends several times per month and from his relatives several times per year. The Government stated that the applicant had not applied to be transferred to a prison closer to the Ukrainian-Polish border, which could make the travelling easier for his family. Finally they submitted that the applicant was fluent in Polish and had some friends in Poland.
23. The applicant submitted that he should be allowed to serve the remainder of his sentence in Ukraine, where all his family live. He raised his complaints under Articles 6 and 8 of the Convention. He submitted that the costs and effort of travel from his home town to the place of his detention in Poland made it difficult for his mother, sister and fiancée to visit him. That difficulty would not be significantly lower if he were transferred to another prison closer to the Polish-Ukrainian border as transport connections could be worse than in the case of the prison in Warsaw where he had recently been detained. He referred to the Government’s contention that he had failed to apply to be transferred to another prison in Poland. The applicant submitted that detaining him in a facility far from his family might amount to interference with his family life.
24. The applicant maintained that the procedure by which the Minister decided on his transfer, without any possibility to appeal, had been arbitrary and in breach of Article 6 of the Convention. In his case, in spite of the positive decision of a court and his multiple requests, the minister had arbitrarily objected to his transfer to Ukraine. The applicant also argued that the circumstances pertaining to his final conviction should not be raised as a ground for refusing his requests to serve the remainder of his sentence in Ukraine.
2. The Court’s assessment
25. As far as the applicant’s complaint under Article 6 of the Convention is concerned, the Court has previously held that Article 6 § 1 was not applicable to proceedings under the Transfer Convention (see Csoszánski v. Sweden (dec.), no. 22318/02, 27 June 2006; Szabo v. Sweden (dec.), no. 28578/03, 27 June 2006; and Veermae v. Finland (dec.), no. 38704/03, 15 March 2005). The Court notes that neither the Transfer Convention nor its Additional Protocol stipulates that proceedings relating to a transfer should meet the requirements of Article 6 of the Convention (see Csoszánski, citedabove).
26. The Court is aware of the fact that the decision taken by the Minister of Justice on the transfer request does not solely depend on the domestic court’s recommendations and on considerations regarding the execution of sentence, but also on considerations of foreign policy which fall within the core area of public law. It is therefore acceptable if those decisions are not subject to judicial review (see, Smith v. Germany, no. 27801/05, § 42, 1 April 2010).
27. The Court also considers that in the instant case there was no exceptionally close connections between the criminal proceedings and the proceedings concerning the applicant’s transfer request, which could justify applicability of Article 6 § 1 of the Convention under its criminal head (compare and contrast, Buijen v. Germany, no. 27804/05, §§ 40-45, 1 April 2010). The criminal proceedings against the applicant ended in 2011 and the transfer matters were not relied on during the trial or fixing of the sentence. The proceedings concerning the applicant’s transfer request did not relate to any assurance given by the public prosecution during the criminal proceedings and could not be regarded as an integral part of the criminal proceedings.
28. Accordingly, in so far as the applicant relies on Article 6 of the Convention his complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
29. The applicant also complained that the facts of the case gave rise to a violation of Article 8 of the Convention. The Court reiterates that placing a person who has been convicted in a particular prison may potentially raise an issue under Article 8 if the effect on the applicant’s private and family life goes beyond the “normal” hardships and restrictions inherent to the very concept of imprisonment (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 837, 25 July 2013). Furthermore, the right to respect for family life imposes upon states a positive obligation to assist prisoners in maintaining effective contact with their close family members (see X. v. the United Kingdom, no. 9054/80, Commission decision of 8 October 1982, DR 30, p. 115).
30. In this connection, the Court notes that the applicant did not claim that the Polish authorities had been limiting his right to family visits. Indeed there is no evidence of a single refusal of a family visit during the applicant’s imprisonment. The applicant argued that the rarity of family visits had been caused by the distance between his home town in Ukraine and the prison in Poland.
31. The Court notes that while such travel clearly entailed costs and effort on the part of the applicant’s family, there was no evidence that these had been excessive or prohibitive. A Schengen area visa was necessary to cross the Ukrainian–Polish border, however the applicant had not submitted that his family had been refused one.
32. The applicant did not apply to be transferred to a facility closer to the Polish-Ukrainian border, claiming that it would not have changed substantially his situation. Given the large margin of appreciation granted to the authorities in such matters, and in the light of the reasons provided by them for the refusals to transfer the applicant to Ukraine, the result of the instant case cannot be considered incompatible with the respect for the applicant’s private and family live (compare and contrast, Khodorkovskiy and Lebedev, cited above, § 850).
33. The Court finds therefore that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
34. Accordingly, this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Renata Degener Aleš Pejchal
Deputy Registrar President
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