Conseil de L'Europe Council of Europe Cour Européenne Des Droits de L'Homme European Court of Human Rights
Conseil de L'Europe Council of Europe Cour Européenne Des Droits de L'Homme European Court of Human Rights
DE L’EUROPE OF EUROPE
FIRST SECTION
JUDGMENT
STRASBOURG
8 January 2009
FINAL
08/04/2009
This judgment may be subject to editorial revision.
KHUDYAKOVA v. RUSSIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 13476/04) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by Ms Svetlana Nikolayevna Khudyakova (“the
applicant”), on 16 March 2004.
2. The applicant was represented by Mr A. Fleganov, a lawyer practising
in Petrozavodsk. The Russian Government (“the Government”) were
represented by Mr P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
3. On 14 June 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the Convention,
it decided to examine the merits of the application at the same time as its
admissibility.
4. The Government objected to the joint examination of the admissibility
and merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
final decision on her extradition had been taken, as neither the Minsk
Convention, nor the Code of Criminal Procedure set any time-limit for the
examination of an extradition request. The Town and Supreme courts found
accordingly that the applicant’s detention and the actions of the Prosecutor’s
Office were in accordance with law.
22. On 10 September 2004 the Petrozavodsk Town Court dismissed the
applicant’s complaint about the unlawfulness of her detention, relying on
the same grounds as in its decision of 17 December 2003.
23. On 14 October 2004 the Supreme Court of Karelia amended the
decision of the Petrozavodsk Town Court of 10 September 2004 and
ordered the applicant’s release. The Supreme Court found as follows:
“According to Article 109 § 3 of the Code of Criminal Procedure detention over
twelve months may be extended only in exceptional circumstances if the person is
charged with a serious or particularly serious criminal offence. This extension is to be
granted following a request filed by an investigator with the consent of the Prosecutor
General of Russia or his Deputy.
Taking into consideration Article 466 § 1 of the Code of Criminal Procedure the
issue of subsequent extension of detention may be decided by a court only in
exceptional circumstances prescribed by law and on a request lodged by a prosecutor.
It appears from the material of the case-file that the prosecutor has not lodged such a
request.
The offence of which the applicant has been accused does not relate to particularly
serious offences ...”
24. The Supreme Court concluded as follows:
“The reasonable time for the applicant’s detention (fourteen months) had expired ...
The Town Court’s referral to the fact that no time-limit was set, either by the 1993
Minsk Convention or by the Code of Criminal Procedure, for the examination of an
extradition request was of no relevance to the rights and freedoms of the applicant,
who had been held in detention without being charged and without any decision on
her extradition for more than one year.”
25. According to the applicant, she was released on 18 October 2004.
The Government did not comment on this issue.
26. On 8 September 2005 the Office of the Prosecutor General of Russia
informed the Deputy Prosecutor General of Kazakhstan that it was not
possible to grant the extradition request in respect of the applicant, since the
time-limit for criminal prosecution for the offence (two years) had expired.
KHUDYAKOVA v. RUSSIA JUDGMENT 5
B. Other proceedings
2. Arrest, placement in custody and detention are only permitted on the basis of a
judicial decision. Prior to a judicial decision, an individual may not be detained for
longer than forty-eight hours.”
6 KHUDYAKOVA v. RUSSIA JUDGMENT
“1. When executing a request for legal assistance, the requested authority applies
the laws of its own State ...”
“1. The Contracting Parties shall ... on each other’s request extradite persons who
find themselves in their territory, for criminal prosecution or to serve a sentence.
2. Extradition for criminal prosecution shall extend to offences which are criminally
punishable under the laws of the requesting and requested Contracting Parties, and
which entail at least one year’s imprisonment or a heavier sentence.”
“1. A request for extradition (требование о выдаче) shall include the following
information:
(b) a description of the factual circumstances of the offence, the text of the law of
the requesting Contracting Party which criminalises the offence, and the punishment
sanctioned by that law;
(c) the [name] of the person to be extradited, the year of birth, citizenship, place
of residence, and, if possible, a description of his appearance, his photograph,
fingerprints and other personal information;
“Upon the receipt of a request for extradition the requested Contracting Party takes
immediate measures aiming at detaining or arresting the person whose extradition is
sought ...”
KHUDYAKOVA v. RUSSIA JUDGMENT 7
Article 61. Arrest or detention before the receipt of a request for extradition
“1. The person whose extradition is sought may also be arrested before receipt of a
request for extradition, if there is a related petition (ходатайство). The petition shall
contain a reference to a detention order ... and shall indicate that a request for
extradition will follow.
2. The person may also be detained without the petition referred to in point 1 above
if there are legal grounds to suspect that he has committed, in the territory of the other
Contracting Party, an offence entailing extradition.
3. In the event of [the person’s] arrest or detention before receipt of the request for
extradition, the other Contracting Party shall be informed immediately.”
“1. A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request
for extradition is received by the requested Contracting Party within 40 days of the
arrest ...”
“1. Where there is urgency, the competent authorities of the requesting Party may
request the provisional arrest of the person sought. The competent authorities of the
requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within a period of 18 days after arrest,
the requested Party has not received the request for extradition and the documents
mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of
such arrest. The possibility of provisional release at any time is not excluded, but the
requested Party shall take any measures which it considers necessary to prevent the
escape of the person sought.”
THE LAW
...
(f) the lawful arrest or detention of ... a person against whom action is being taken
with a view to ... extradition.”
A. Admissibility
50. The Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further finds that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
56. The applicant submitted that provisions of the Russian criminal law
on detention of persons with a view to extradition fell short of the
requirement of legal certainty and the Convention principles. Although
Chapter 13 of the Code of Criminal Procedure, and in particular its
Articles 108 and 109, contained precise and detailed norms on the
application of measures of restraint and set specific time-limits, the absence
of an explicit reference to these provisions in Article 466 of the Code of
Criminal Procedure had led to confusion. Moreover, the 1993 Minsk
Convention on Legal Assistance did not set any time-limits for detention
pending extradition.
provided for application by the requested Contracting Party of its own law
for execution of requests for legal assistance, such as a request for
extradition (see paragraphs 34 and 42above). A similar provision can be
found in Article 16 of the European Convention on Extradition, which
establishes that provisional arrest of the person whose extradition is sought
shall be decided upon by the requested Party in accordance with its law.
Thus, the international instrument first required compliance with the
domestic procedure which, as the Court has found above, was breached in
this case.
65. Furthermore, the Court considers that Article 62 of the Minsk
Convention cannot be considered as justifying detention for an initial forty-
day period. Like paragraph 4 of Article 16 of the European Convention on
Extradition, Article 62 of the Minsk Convention establishes an additional
guarantee against the excessive duration of provisional arrest pending
receipt of a request for extradition. It does not indicate that a person may be
detained for forty days but rather requires that the person should be released
at the end of the fortieth day if the request has not been received in the
meantime. In other words, even though under domestic law detention could
be ordered for a period exceeding forty days (for instance, Article 108 of the
Russian Code of Criminal Procedure provides for an initial two-month
period of detention), Article 62 of the Minsk Convention requires the
domestic authorities to release anyone who has been detained for more than
forty days in the absence of a request for extradition. Thus, the Minsk
Convention could not have been a legal basis for the applicant’s detention
either (see, by analogy, Shchebet v. Russia, no. 16074/07, § 68, 12 June
2008).
66. The Government’s argument that the lawfulness of the applicant’s
detention was reviewed upon her complaints filed in 2003-2004 and found
lawful cannot be accepted as a justification of the applicant’s continued
detention. The Court has previously held that review of the applicant’s
detention following complaints about its unlawfulness and applications for
release cannot be regarded as a sufficient legal basis for the continued
detention of the applicant (see, by analogy, Melnikova v. Russia,
no. 24552/02, §§ 57-62, 21 June 2007, and Fursenko v. Russia,
no. 26386/02, §§ 91-96, 24 April 2008).
67. Finally, the Government’s argument that the applicant and her
lawyer had contributed to the prolongation of her detention and were
directly responsible for the applicant’s continued detention is regrettable.
Shifting the responsibility for detention to the applicant when she was under
the full control of the authorities is neither relevant, nor reasonable. Even
assuming that the applicant’s actions did protract the extradition procedure
as the authorities were under obligation to examine her applications for
asylum and her self-incriminating statements in respect of a crime
committed in Russia, at this juncture two separate issues should be
16 KHUDYAKOVA v. RUSSIA JUDGMENT
A. Admissibility
76. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
had only been examined on 2 September 2003, that is eighteen days later.
She relied on Article 5 § 4 of the Convention which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.”
A. Admissibility
85. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
21 October 1986), and 17 days for one level of jurisdiction (see Kadem v.
Malta, no. 55263/00, § 44, 9 January 2003).
95. The Court reiterates that the question whether a person’s right under
Article 5 § 4 has been respected has to be determined in the light of the
circumstances of each case (see Rehbock, cited above, § 84).
(b) Application of the general principles in the present case
96. Turning to the present case, the Court observes that the applicant’s
counsel and the applicant herself asked the Petrozavodsk Town Court to
review the lawfulness of her detention on 15 August 2003. That complaint
was examined and dismissed by the Town Court on 2 September 2003. On
9 October 2003 the Supreme Court of Karelia upheld that decision. The
Government did not contest that the complaint had been lodged on
15 August 2003. Moreover, they acknowledged the violation of the five-day
time-limit provided for in the Russian Code of Criminal Procedure, noting,
however, that the delay of eighteen days could not have affected the
applicant’s situation.
97. There are two aspects to the requirement that “the lawfulness of the
detention shall be decided speedily”. First, the opportunity for legal review
must be provided soon after the person is taken into detention; secondly, the
review proceedings must be conducted with due diligence.
98. The applicant had the opportunity to contest the lawfulness of her
detention from the outset. The first aspect of the “speedily” requirement was
thus satisfied in the present case.
99. As to the question whether the review proceedings were conducted
with due diligence, the Court notes that the applicant filed her complaint on
15 August 2003. It took the Petrozavodsk Town Court eighteen days to
examine it. It appears that the court protracted the examination of the
complaint about the unlawfulness of the applicant’s detention, as it needed
first to confirm the detention itself (see paragraphs 14 and 15 above). The
examination of the applicant’s appeal took another 36 days. Thus, fifty-four
days elapsed from the date the application was lodged until the final
decision of the appeal court. The Government did not plead that complex
issues had been involved in the determination of the lawfulness of the
applicant’s detention, or otherwise seek to justify the delay, apart from their
contradictory statement that the review of the applicant’s detention could
not have affected her situation as the detention had been authorised by the
court and should thus be considered lawful.
100. The Court finds that the period in question does not suggest that
the proceedings were conducted with due diligence. Consequently, the
Court finds that the application for release introduced by the applicant on
15 August 2003 was not examined “speedily” as required by Article 5 § 4.
101. There has, consequently, been a violation of Article 5 § 4 of the
Convention.
24 KHUDYAKOVA v. RUSSIA JUDGMENT
4. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement, plus any tax that may be
chargeable on that amount;
(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.