![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
. The case concerns the applicant\u2019s complaint that his detention in Ukraine in the context of the examination of the Turkish authorities\u2019 request for his extradition had been in breach of Article 5 \u00a7 1 (f) of the Convention.<\/p>\n. The case concerns the applicant\u2019s complaint that his detention in Ukraine in the context of the examination of the Turkish authorities\u2019 request for his extradition had been in breach of Article 5 \u00a7 1 (f) of the Convention.<\/p>\n
FIFTH SECTION
\nCASE OF BAZ v. UKRAINE
\n(Application no. 40962\/13)
\nJUDGMENT
\nSTRASBOURG
\n5 November 2020<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Baz v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n M\u0101rti\u0146\u0161 Mits, President, Having regard to:<\/p>\n the application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Turkish national, Mr MekhmetTakh\u0131r D\u0131no Baz (\u201cthe applicant\u201d), on 15 June 2013;<\/p>\n the decision to give notice to the Ukrainian Government (\u201cthe Government\u201d) of the complaint under Article 5 \u00a7 1 of the Convention and to declare inadmissible the remainder of the application;<\/p>\n the parties\u2019 observations;<\/p>\n the decision of the Turkish Government not to exercise their right to intervene in the proceedings under Article 36 \u00a7 1 of the Convention;<\/p>\n Having deliberated in private on 6 October 2020,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. The case concerns the applicant\u2019s complaint that his detention in Ukraine in the context of the examination of the Turkish authorities\u2019 request for his extradition had been in breach of Article 5 \u00a7 1 (f) of the Convention.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicant was born in 1976 and lives in Mykolayiv. The applicant, who had been granted legal aid, was represented by Mr\u00a0O.\u00a0Ovchynnykov, a lawyer practising in Strasbourg.<\/p>\n 3. The Government were represented by their Agent, Mr I.\u00a0Lishchyna.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n A. The applicant\u2019s arrival in Ukraine and the proceedings concerning asylum and subsidiary protection status<\/strong><\/p>\n 5. In September 1998 the applicant left Turkey for an unspecified country. In 2004 he arrived in Ukraine and on 23 March 2011 he was granted refugee status.<\/p>\n 6. On 18 October 2012 the State Migration Service revoked his refugee status on the grounds that he had provided false information. The applicant had stated that he had been persecuted in Turkey on political grounds, concealing the fact that he had been wanted by the law-enforcement authorities on suspicion of a criminal offence.<\/p>\n 7. The Ukrainian courts at three levels of jurisdiction rejected the applicant\u2019s claim challenging the revocation decision. The final decision was handed down by the High Administrative Court on 3 April 2013.<\/p>\n 8. Meanwhile, on 14 March 2013 the applicant applied to the immigration authorities for subsidiary protection.<\/p>\n 9. On 13 August 2013 the Kharkiv regional department of the State Migration Service rejected his application as inadmissible on the grounds that his refugee status had been revoked.<\/p>\n 10. On 27 February 2014 the Odessa Circuit Administrative Court quashed that decision following an administrative claim by the applicant and directed the immigration authorities to examine his application for subsidiary protection on the merits.<\/p>\n 11. The migration service appealed.\u00a0There is no information in the case file on subsequent developments.<\/p>\n B. Criminal proceedings against the applicant in Ukraine<\/strong><\/p>\n 12. On 25 September 2012 the applicant was detained on suspicion of using documents he knew to be forged (no further details are available in the case file). On an unspecified date he was released, subject to an undertaking not to abscond.<\/p>\n 13. On 14 March 2013 the KharkivLeninsky District Court found the applicant guilty as charged and sentenced him to two months\u2019 imprisonment.<\/p>\n 14. The applicant appealed. There is no information in the case file on the outcome of those proceedings.<\/p>\n C. Extradition proceedings and the applicant\u2019s detention with a view to extradition<\/strong><\/p>\n 15. On 20 June 2011 the Istanbul 13th Higher Criminal Court (\u201cthe Istanbul Court\u201d) issued a warrant for the applicant\u2019s arrest on suspicion of participation in terrorist and separatist activities on 5 August 1998.<\/p>\n 16. On 3 October 2012 the Istanbul Court sent a request to \u201cthe authorised judicial authorities of Ukraine\u201d, seeking the applicant\u2019s extradition to Turkey in connection with the criminal proceedings against him. It was specified in the request that the criminal charge in question was to become time-barred on 15\u00a0August 2013. The Turkish court assured the Ukrainian authorities that the applicant\u2019s rights and freedoms under the Convention would be respected.<\/p>\n 17. On 14 November 2012 the applicant was detained by the State Security Service of Ukraine with a view to his extradition.<\/p>\n 18. On 15 November 2012 the Mykolaiv regional department of the State Migration Service informed the State Security Service that the applicant had not applied for Ukrainian nationality (Ukrainian law bars the extradition of Ukrainian nationals).<\/p>\n 19. On 16 November 2012 the Mykolaiv Tsentralny District Court, following an application from the prosecution authorities, placed the applicant in detention pending his extradition.<\/p>\n 20. On 17 June 2013 the Istanbul Court issued another warrant for the applicant\u2019s arrest on the same criminal charge as before.<\/p>\n 21. The applicant was transferred from Mykolaiv to Kharkiv in connection with the criminal proceedings against him in Ukraine (see paragraphs 12 and 13 above), making the KharkivZhovtnevy District Court (\u201cthe Zhovtnevy Court\u201d) the competent court in matters of his detention.<\/p>\n 22. On 17 July 2013 the Zhovtnevy Court examined the matter of the applicant\u2019s detention and held that his continued detention was justified. The court referred to the two arrest warrants and the extradition request issued by the Istanbul Court. The\u00a0Kharkiv regional prosecutor\u2019s office had received the documents in question from the Ministry of Justice of Ukraine. Furthermore, the prosecution authorities had carried out an extradition inquiry (\u0435\u043a\u0441\u0442\u0440\u0430\u0434\u0438\u0446\u0456\u0439\u043d\u0430 \u043f\u0435\u0440\u0435\u0432\u0456\u0440\u043a\u0430) and had concluded that there were no impediments to the applicant\u2019s extradition. The court also noted the applicant\u2019s conviction by the judgment of 14\u00a0March 2013, but specified that it had not yet become final.<\/p>\n 23. On 30 August 2013 the Zhovtnevy Court released the applicant. It noted that the limitation period in respect of the criminal offences of which the applicant was accused had expired on 15 August 2013. The court referred in this connection to Article\u00a010 of the European Convention on Extradition, pursuant to which extradition could not be granted in such circumstances (see paragraph 29 below).<\/p>\n 24. On 23 September 2013 the Ministry of Justice of Ukraine rejected the extradition request of 3 October 2012.<\/p>\n RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n I. Relevant domestic law<\/p>\n A. 1960 Code of Criminal Procedure (repealed and replaced by the 2012 Code of Criminal Procedure with effect from 19\u00a0November 2012)<\/strong><\/p>\n 25. The relevant provisions of the Code are quoted in the Court\u2019s judgment in Molotchko v. Ukraine (no. 12275\/10, \u00a7 91, 26 April 2012).<\/p>\n B. 2012 Code of Criminal Procedure<\/strong><\/p>\n 26. Article 584 of the 2012 Code of Criminal Procedure provides that a request to detain a person pending extradition must be submitted by a prosecutor after receipt of an extradition request from the competent authority of a foreign State. Detention pending extradition is imposed for such time as is necessary to take a decision on the person\u2019s extradition and for the extradition itself; however, the period must not exceed twelve months (Article\u00a0584 \u00a7 10). If there is a complaint by a detainee or his or her lawyer, the investigating judge must check whether there are any grounds for the person\u2019s release (Article\u00a0584 \u00a7 12), but this may not happen more than once a month.<\/p>\n 27. Article 589 \u00a7 2 provides that extradition of a refugee or a person under subsidiary or temporary protection is prohibited.<\/p>\n 28. Under Article 590 \u00a7 4, no decision on a person\u2019s extradition can be taken if that person has applied for refugee status or for subsidiary protection and there has been no final decision in that regard.<\/p>\n II. Relevant international material<\/p>\n 29. The 1957 European Convention on Extradition entered into force in respect of Turkey on 18 April 1960 and in respect of Ukraine on 9\u00a0June 1998. Its Article\u00a010 reads as follows:<\/p>\n Lapse of time<\/strong><\/p>\n \u201cExtradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 5 \u00a7 1 OF THE CONVENTION<\/p>\n 30. The applicant complained that his detention in connection with the examination by the Ukrainian authorities of the Turkish authorities\u2019 extradition request had been in breach of Article 5 \u00a7 1 (f) of the Convention, the relevant parts of which read as follows:<\/p>\n \u201c1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:<\/p>\n …<\/p>\n (f) the lawful arrest or detention of a person … against whom action is being taken with a view to … extradition.\u201d<\/p>\n A. The parties\u2019 submissions<\/strong><\/p>\n 31. The applicant submitted that his detention had been contrary to Article 5 \u00a7 1 (f) for the following reasons: (i) until 3 April 2013 his appeals against the revocation of his refugee status had still been pending (see paragraph 7 above), meaning that he could not be extradited; (ii) on 14\u00a0March 2013 he had applied for subsidiary protection and so could not be extradited while those proceedings had been pending; and (iii) from 15\u00a0August 2013 onwards his detention had also become unlawful since his prosecution in Turkey had become time-barred.<\/p>\n 32. The Government did not submit observations on the admissibility and merits of the case within the time-limits set.<\/p>\n B. Admissibility<\/strong><\/p>\n 33. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n C. Merits<\/strong><\/p>\n 34. A summary of the relevant general principles of the Court\u2019s case-law can be found in Khomullo v. Ukraine (no. 47593\/10, \u00a7\u00a7\u00a051-53, 27\u00a0November 2014).<\/p>\n 35. The Court notes at the outset that there is no indication that the legal framework under which the applicant was detained pending his extradition was deficient in any way or that the authorities did not pursue the proceedings for his extradition with requisite diligence.<\/p>\n 36. As to the arguments raised by the applicant (see paragraph\u00a031 above), the Court notes that he did not point to any provision of domestic law which would support his submissions that he had retained his refugee status in Ukraine while his appeals against the decision to revoke that status had been pending. Likewise, no provision of domestic law prevented his extradition detention while his application for subsidiary protection was pending. While those two sets of proceedings may well have constituted a bar to his actual extradition to Turkey while they were pending, there was no bar to extradition once they were concluded in a manner unfavourable to the applicant. Therefore, the mere fact that those proceedings were pending does not put in doubt the compliance of the applicant\u2019s detention with the requirements of domestic law and with Article 5 \u00a7 1 of the Convention.<\/p>\n 37. By contrast, from 15 August 2013 (when the applicant\u2019s prosecution in Turkey became time-barred) the applicant\u2019s extradition became definitively impossible under the European Convention on Extradition, which is binding on Ukraine. Despite that fact, the applicant was not released until 30\u00a0August 2013 (see paragraphs 23 and 29 above). The Court has already found violations of Article 5 \u00a7 1 of the Convention in similar circumstances (see, for example, Dubovik v. Ukraine, nos.\u00a033210\/07 and 41866\/08, \u00a7\u00a7 61 and 62, 15 October 2009; Garkavyy v. Ukraine, no.\u00a025978\/07, \u00a7\u00a7\u00a070 and 75, 18 February 2010; and Mokallal\u00a0v. Ukraine, no.\u00a019246\/10, \u00a7 44, 10 November 2011). It sees no reason to find otherwise in the present case.<\/p>\n 38. There has accordingly been a violation of Article\u00a05\u00a0\u00a7 1 of the Convention on account of the applicant\u2019s detention from 15 to 30\u00a0August 2013.<\/p>\n II. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 39. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n 40. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.<\/p>\n 41. The Government did not comment.<\/p>\n 42. The Court, ruling on an equitable basis, awards the applicant EUR\u00a04,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicant.<\/p>\n 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 5 \u00a7 1 of the Convention on account of the applicant\u2019s detention from 15 to 30 August 2013;<\/p>\n 3. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b) 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;<\/p>\n 4. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 5 November 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Anne-Marie Dougin \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 M\u0101rti\u0146\u0161 Mits
\nLatif H\u00fcseynov,
\nMattias Guyomar, judges,
\nand Anne-Marie Dougin, Acting Deputy Section Registrar,<\/p>\n<\/p>\n
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n