ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 08.02.2005<ДЕЛО БОРДОВСКИЙ (bordovskiy) ПРОТИВ РОССИИ> [англ.]

(Application No. 49491/99)
(Strasbourg, 8.II.2005)
In the case of Bordovskiy v. Russia,
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr {R. Turmen} <*>,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mr A. Kovler,
Mrs A. Mularoni, judges,
and Mrs {S. Dolle}, Section Registrar,
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 11 May and 18 January 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (No. 49491/99) against the Russian Federation lodged with the European Commission of Human Rights ("the Commission") under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Belarusian national, Mr Igor Aleksandrovich Bordovskiy ("the applicant"), on 19 October 1998.
2. The applicant was represented by Ms K. Moskalenko, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that his detention in Russia with a view to extradition to Belarus had been unlawful, that he had not been informed promptly of the reasons for his arrest, and that he had not been able to challenge his detention before a court.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. It has remained with that Section, differently composed on 1 November 2001 and 1 November 2004, since.
6. By a decision of 11 May 2004, the Court declared the application partly admissible.
7. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the applicant replied in writing to the Government"s observations.
I. The circumstances of the case
8. The applicant was born in 1967 and lives in Gomel, Belarus.
9. In 1995 the applicant worked in a private asset management company.
10. In 1996 the General Prosecutor"s Office of Belarus ("the Belarusian GPO") carried out a criminal investigation into the company"s business. The applicant was twice questioned in the course of the investigation.
11. In February 1997 the applicant quit his job and in July 1997 moved to St. Petersburg.
12. The Belarusian GPO considered the applicant"s departure as an attempt to abscond. For this reason, on 22 September 1997 the Belarusian GPO charged the applicant in his absence with large-scale fraud and embezzlement, and issued in his respect a detention order and an international search and arrest warrant.
13. On 9 July 1998 the Russian police arrested the applicant in St. Petersburg. According to the applicant, the policemen did not inform him of the reasons for his arrest and failed to produce any documents justifying it.
14. On 9 July 1998 the Russian National Bureau of Interpol sent an urgent wire to its Belarusian counterpart. The Russian Bureau requested confirmation that the applicant was still wanted by the Belarusian authorities and inquired whether the Belarusian authorities planned to request his extradition.
15. On 11 July 1998 the Russian authorities interviewed the applicant. In the course of the interview, the applicant wrote explanations in which he provided certain details about the investigation in Belarus, his questionings and departure to Russia. The applicant noted that, until his arrest, he had not known that the Belarusian authorities had been searching for him.
16. On 13 July 1998 the applicant was placed in a temporary detention unit of the St. Petersburg Police Department.
17. On 16 July 1998 the Belarusian GPO sent to the General Prosecutor"s Office of Russia ("the Russian GPO") a formal request for the applicant"s extradition, pursuant to Article 56 of the CIS <*> Convention on Legal Assistance in Civil, Family and Criminal Cases. On 4 August 1998 the Russian GPO received this request.
<*> The Commonwealth of Independent States.
18. On 27 July 1998 the Belarusian National Bureau of Interpol replied to its Russian partner"s wire of 9 July 1998 and requested the applicant"s detention pending the extradition proceedings.
19. On 13 August 1998 a senior investigator of the Belarusian GPO interrogated the applicant for the first time, having come for this purpose from Minsk. The investigator informed the applicant about the nature of the accusation against him but did not serve formal charges.
According to the applicant, it was not until then that he was for the first time informed - albeit only orally - about the charges.
20. On 20 August (19 August, according to the Government) 1998, the applicant was transferred to Remand Centre IZ-47/4 in St. Petersburg.
21. According to the applicant, in August - November 1998 his lawyer lodged three applications for his release: on 18 August 1998 with the Dzerzhinskiy District Court of St. Petersburg, on 27 August 1998 with the Kalininskiy District Court of St. Petersburg, and on 2 November 1998 with the St. Petersburg City Court. These applications were made pursuant to Article 220-1 of the Code of Criminal Procedure which provided for the judicial review of detention on remand.
According to the Government, the applicant"s lawyer did not lodge these applications.
22. On 25 September 1998 the Russian GPO agreed to extradite the applicant.
23. On 5 October 1998 the St. Petersburg Prosecutor"s Office informed the applicant"s lawyer that, on 11 August 1998, the Russian GPO had ordered the applicant"s continued detention pending the extradition proceedings, pursuant to the request of the Belarusian authorities and because the applicant was not a Russian citizen.
24. On 25 October 1998 the applicant was re-located to Remand Centre No. 1 in Smolensk.
25. On 17 November (12 November, according to the Government) 1998 he was handed over to the Belarusian authorities.
26. On 24 November 2000 the Zheleznodorozhnyi District Court of Gomel convicted the applicant and sentenced him to three years" suspended imprisonment with compulsory community work.
A. CIS Agreement on crime control
27. Russia and Belarus are members of the CIS. On 24 April 1992 the Ministries of Internal Affairs of the CIS signed an Agreement on Co-operation in the Sphere of Crime Control ("the Agreement on Crime Control"). Section 6 of that Agreement provides as follows:
"A Party shall, with regard to its internal legislation, assist another Party who requests:
(a) the arrest of a person who evades investigating authorities, trial or serving a sentence, or the detention of such a person if necessary;
(b) the extradition of a person for criminal prosecution or for serving a sentence."
B. CIS Convention on legal assistance
28. On 22 January 1993 the Independent States signed a Convention on Legal Assistance in Civil, Family and Criminal Cases ("the Convention on Legal Assistance"), which provided as follows:
Article 56. Obligation of extradition
"1. The Contracting Parties shall... on each other"s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving 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."
Article 58. Request for extradition
"1. A request for extradition (требование о выдаче) shall include the following information:
(a) the title of the requesting and requested authorities;
(b) the 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 his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information;
(d) information concerning the damage caused by the offence.
2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order. ..."
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. A petition for arrest... may be sent by post, wire, telex or fax.
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 case of [the person"s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately."
Article 61-1. Search for a person before receipt of the request for extradition
"1. The Contracting Parties shall... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party. ...
2. A request for the search... shall contain... a request for the person"s arrest and a promise to submit a request for his extradition.
3. A request for the search shall be accompanied by a certified copy of... the detention order. ...
4. The requesting Contracting Party shall be immediately informed about the person"s arrest or about other results of the search."
Article 62. Release of the person arrested or detained
"1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest.
2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest."
Article 67. Handing over the person to be extradited
"The requested Contracting Party shall inform the requesting Contracting Party about the place and time of the hand-over. If the requesting Contracting Party does not take the person to be extradited within 15 days after the fixed date for handing over, the person shall be released."
C. Code of Criminal Procedure
29. Pursuant to Article 220-1 of the Code of Criminal Procedure of 1960 ("the CCrP"), in force at the material time, a remand prisoner could apply for a judicial review of his pre-trial detention.
D. Criminal law of Belarus
30. Article 91 § 4 of the Criminal Code of Belarus 1960, in force at the material time, provided that appropriation or embezzlement of third parties" property of which the defendant had custody, or appropriation of the property by abuse of office, committed on several occasions, in concert with others and on a large scale, was punishable by 8 to 15 years" imprisonment, the confiscation of property and a prohibition on holding certain offices or on taking up certain activities for a period of 3 to 5 years.
I. Alleged violation of Article 5 § 1 of the Convention
31. The applicant complained under Article 5 § 1 of the Convention that his detention pending extradition was unlawful because the relevant domestic procedure had not been respected and because the procedure itself had not been sufficiently clear. Article 5 of the Convention, as far as relevant, reads as follows:
"1. 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:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
A. Arguments of the parties
1. The Government
32. The Government submitted that the applicant"s arrest and detention complied with this provision.
33. According to them, the applicant was detained pursuant to section 6 of the Agreement on Crime Control on the basis of a detention order issued by the Belarusian GPO. Since the applicant was a citizen of Belarus, he was extradited in accordance with the Convention on Legal Assistance. Pursuant to Article 56 § 2 of that Convention, a person could be extradited if he or she faced charges punishable with at least one year"s imprisonment. Pursuant to Article 60 of the Convention on Legal Assistance, the State had to arrest the person in question as soon as a request for extradition was received. The Russian authorities acted in full compliance with these provisions.
34. As to the clarity of the procedure, Article 62 § 1 of the Convention on Legal Assistance unequivocally fixed the maximum duration of a person"s detention pending extradition proceedings. According to this provision, the detainee had to be released if no request for extradition was received within 40 days of the arrest.
2. The applicant
35. The applicant insisted that his detention was not "lawful" within the meaning of the Convention case-law.
36. The conditions laid down in Articles 58 to 62 of the Convention on Legal Assistance were not fulfilled. In particular,

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