Last Updated on May 23, 2019 by LawEuro
Communicated on 13 September 2018
FIRST SECTION
Application no. 78575/16
Zdislav TANKOVIC
against Poland
lodged on 20 December 2016
STATEMENT OF FACTS
The applicant, Mr Zdislav Tankovic, is a Lithuanian national who was born in 1983. He is currently detained in Suwałki Remand Centre. The applicant is represented before the Court by Mr B. Zygmont, a lawyer practising in Warsaw.
A. The circumstances of the case
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. On 23 February 2016 the applicant was arrested by Polish border guards on the basis of a “wanted” notice issued by the Belarusian authorities.
3. On 24 February 2016 the Belarusian authorities requested their Polish counterparts to have the applicant detained. The applicant was sought in connection with a case concerning trafficking in narcotic drugs pending against him in Belarus. The offence was punishable by up to 15 years’ imprisonment.
4. On 25 February 2016 the Suwałki Regional Court ordered the applicant’s detention until 23 March 2016 with a view to extraditing him. It noted that there was a strong suspicion that the applicant had committed the offence for which he was to be extradited, having regard to the application made by the Belarusian authorities. It also found that, given the heavy penalty for the offence, and the fact that the applicant had fled Belarus, there was a risk of his absconding.
5. On 22 March 2016 the Belarusian Deputy Prosecutor General’s Office requested the Polish authorities to have the applicant extradited. It submitted that in June 2009, criminal proceedings had been instituted against the applicant and another person on suspicion of drug dealing. The applicant had been put under house arrest. On 26 June 2009 the applicant had been charged. On 24 August 2009 an order for the applicant’s detention and a “wanted” notice had been issued following his disappearance.
6. On 25 March 2016 the prosecutor filed an application with the Suwałki Regional Court to issue an opinion on the admissibility of the applicant’s extradition.
7. By the Regional Court’s decisions of 23 March and 22 May 2016, the applicant’s detention pending extradition was extended until 22 May and 22 June 2016 respectively.
8. On 21 June 2016 the Regional Court held that there were no obstacles to the applicant’s extradition. It had regard to the relevant provisions of the Code of Criminal Procedure (“the CCP”) and 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. The court noted that the charge against the applicant was not of a political nature. It found that there was no evidence in the case demonstrating a real risk that the applicant’s Convention rights would be violated if he were to be extradited.
9. In the same decision, the court ordered the extension of the applicant’s detention until 21 August 2016 with a view to ensuring the proper conduct of the extradition proceedings.
10. The applicant appealed. On 28 July 2016 the Białystok Court of Appeal set aside the Regional Court’s decision in part concerning the applicant’s extradition. The Court of Appeal found that the lower court should have considered whether the applicant’s extradition to Belarus would not be contrary to the provisions of the Treaty on the Functioning of the EU, given that the applicant was a national of Lithuania, another EU member State.
11. The Court of Appeal further noted that there had been some doubts concerning the charges against the applicant. It observed that on 3 March 2016, that is, after the applicant had been arrested in Poland, the Belarusian authorities had issued an order concerning the charges against the applicant. However, it was not clear whether the order of 3 March 2016 had concerned the same offence in connection with which the Belarusian authorities had requested the applicant’s extradition. Lastly, the Court of Appeal held that the lower court had not properly examined the risk of exposing the applicant to treatment prohibited by Article 3 of the Convention if he were to be extradited.
12. On 12 August 2016 the Suwałki Regional Court extended the applicant’s detention until 20 October 2016. It noted that there was a risk of the applicant’s absconding, given the serious nature of the charges against him. On 14 September 2016 the Regional Court dismissed the applicant’s request to release him on bail.
13. On 17 October 2016 the Suwałki Regional Court held that there were no obstacles to the applicant’s extradition. Having regard to additional information obtained from the requesting State, it found that the order of 3 March 2016 had not concerned new charges against the applicant, but supplemented the initial charge made in June 2009. The order added that the applicant had committed a drug trafficking offence while acting in an organised group.
14. The Regional Court further established that there was no real risk of infringement of the applicant’s Convention rights if he were to be extradited. It found that the evidence adduced did not substantiate that risk specifically with regard to the applicant, who had been charged with an ordinary offence. The reports regarding non-observance of human rights in Belarus related primarily to cases involving political opponents of the authorities. The applicant had submitted that, during his questioning in June 2009, he had been ill-treated by the officers. Assuming that the alleged event had taken place, the Regional Court noted that it should be considered as an abuse on the part of the officers involved and should be examined by the Belarusian authorities.
15. In the same decision, the Regional Court further ordered the extension of the applicant’s detention until 19 December 2016.
16. The applicant appealed against the decision finding no obstacles to his extradition. He requested leave to be present at the appellate hearing. However, on 2 December 2016 the Court of Appeal refused his request, finding that the presence of his lawyer would be sufficient.
17. On 14 December 2016 the Białystok Court of Appeal upheld the Regional Court’s decision on the applicant’s extradition. Having regard to the Treaty on the Functioning of the EU and the Court of Justice of the EU’s judgment of 6 September 2016 (case C-182/15), it found that the Lithuanian authorities had been notified by the Polish authorities about the applicant’s arrest in Poland on the basis of a “wanted” notice issued by the Belarusian authorities. However, the Lithuanian authorities had not wished to seek the applicant’s surrender.
18. The Court of Appeal agreed with the lower court’s analysis regarding the order of 3 March 2016 supplementing the original charge of drug trafficking. It further approved its findings that the applicant’s extradition would not expose him to the risk of infringement of his Convention rights.
19. On 15 December 2016 the Court of Appeal extended the applicant’s detention pending extradition until 20 February 2017.
20. On 22 December 2016 the case file was transmitted to the Minister of Justice, who has the ultimate competence to grant or refuse extradition.
21. On 14 February 2017 the Regional Court ordered the extension of the applicant’s detention until 20 May 2017. Relying on the material in the extradition request, it found that there was a strong suspicion that the applicant had committed the offence for which he was to be extradited. Furthermore, it found there was a likelihood of his absconding, having regard to the heavy penalty for the offence with which he had been charged and the fact that he had fled the requesting State. Accordingly, the extension of detention was necessary to ensure the proper conduct of the extradition proceedings.
22. The applicant appealed against the extension of 14 February 2017. He alleged a breach of the CCP in that his detention had been extended by the Regional Court of its own motion, without an application to that effect submitted by the competent authority. He submitted that, since the issue of his extradition was now before the Minister of Justice, the latter was the sole authority competent to request an extension of his detention.
23. On 24 March 2017 the Court of Appeal upheld the decision of 14 February 2017, having altered only certain provisions relied on as a basis for that decision. It dismissed the applicant’s arguments concerning the lack of the Minister’s application for extension of the detention. It found that Article 605 § 1 of the CCP authorised the Regional Court to act in such cases ex officio or on an application of a prosecutor.
24. On 17 May 2017 the Suwałki Regional Court extended the applicant’s detention until 18 August 2017. It had regard, inter alia, to a certificate issued by a doctor of the remand centre, attesting that the applicant’s health was compatible with his detention. The applicant appealed. He argued, inter alia, that he should have been released on grounds of ill-health as he suffered from depression. On 19 June 2017 the Court of Appeal upheld the decision.
25. On 26 July 2017 the Ombudsman lodged a cassation appeal against the Court of Appeal’s decision of 14 December 2016 regarding the admissibility of the applicant’s extradition. The Ombudsman argued, inter alia, that the court had not properly examined the risk of infringement of the applicant’s rights if he were to be extradited.
26. On 17 August 2017 the Regional Court refused the applicant’s request to lift his detention. It further extended his detention until 18 December 2017. The court noted that the extradition proceedings had been extended due to the activity of the applicant’s lawyer. The applicant’s lawyer, for example, had filed with the Supreme Court an application for reopening the proceedings terminated by the Court of Appeal’s decision of 14 December 2016. On 5 April 2017 the Supreme Court rejected that application.
27. The applicant appealed. He submitted, inter alia, that the Regional Court had not been competent to rule on the extension of the applicant’s detention since, following the Ombudsman’s cassation appeal, the proceedings had been pending before the Supreme Court and it was that latter court that had been competent in the matter. It appears that the applicant’s appeal was dismissed.
28. On 1 December 2017 the Regional Court ordered further extension of the applicant’s detention until 23 February 2018. The Court of Appeal upheld this decision on 21 February 2018. It found that it had not been established that the continued detention amounted to a risk to the applicant’s health.
29. On the same day, the Court of Appeal extended the applicant’s detention until 30 April 2018.
30. On 4 April 2018 the Supreme Court set aside the Court of Appeal’s decision of 14 December 2016 on the applicant’s extradition. It held that the Court of Appeal had not properly examined the applicant’s argument regarding the risk of infringement of his rights if he were to be extradited. It referred, in particular, to the manner in which the Court of Appeal had analysed the allegation of the applicant’s ill-treatment during his questioning in Belarus in June 2009.
31. It appears that on 18 June 2018 the Białystok Court of Appeal upheld the Regional Court’s decision on the applicant’s extradition.
B. Relevant domestic law
32. The extradition procedure is regulated by Articles 602-607 of the Code of Criminal Procedure (“CCP”). Under Article 603 § 5 of the CCP, the regional court, having ruled on the extradition request of a foreign state, shall transfer its binding decision, together with the case file, to the Minister of Justice. The Minister of Justice shall then decide on the request and communicate this decision to the competent authority of the foreign state.
COMPLAINT
The applicant complains under Article 5 § 1 (f) of the Convention that his detention pending extradition was unjustified and lengthy.
QUESTION TO THE PARTIES
Was the applicant deprived of his liberty in breach of Article 5 § 1 (f) of the Convention?
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