ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 08.02.2005<ДЕЛО БОРДОВСКИЙ (bordovskiy) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF BORDOVSKIY v.
RUSSIA
(Application No. 49491/99)
JUDGMENT <*>
(Strasbourg,
8.II.2005)
In the case of Bordovskiy v. Russia,
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<*> 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,
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<*> 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:
PROCEDURE
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.
THE
FACTS
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.
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<*> 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.
II. RELEVANT DOMESTIC LAW
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.
THE LAW
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,
