ITEMID: 001-95771
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KABOULOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed;No violation of Art. 2 (in case of extradition to Kazakhstan);Violation of Art. 3 (in case of extradition to Kazakhstan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-1-f;Violation of Art. 5-2;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 34;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 10. The facts of the case, as submitted by the parties, may be summarised as follows.
11. The applicant was born on 14 August 1979. The applicant claims to be Mr Amir Damirovich Kubulov, a citizen of the Russian Federation. He also claims that he has citizenship of the Republic of Kazakhstan. The applicant is currently detained in the Poltava pre-trial detention (“the Poltava SIZO”) of the State Department for Enforcement of Sentences.
12. On 16 June 2003 an unidentified person murdered Zh.U.Zh. On the same date the Ministry of the Interior of Kazakhstan launched a criminal investigation into the murder.
13. On 28 June 2003 the applicant was accused in Kazakhstan, in his absence, of having committed a crime under Article 96(1) of the Criminal Code of Kazakhstan (murder). On the same date an investigator the Ministry of the Interior decided that the applicant should be detained.
14. On 4 July 2003 the Ministry of the Interior of Kazakhstan (“the MIK”) issued an international search warrant for the applicant on suspicion of his having committed aggravated murder, involving capital punishment as a sanction (Article 96(2) of the Criminal Code of Kazakhstan).
15. The facts surrounding the applicant's initial detention may be summarised as follows.
16. It was agreed by the parties that the applicant had been picked up at 9.20 p.m. on 23 August 2004 and detained thereafter, although there was no agreement as to where and why the applicant was detained. They provided various documents certifying what happened in the period from 9.20 p.m. on 23 August 2004 to 7.30 p.m. 25 August 2004, which can be summarised as follows.
17. According to a document entitled “Record of arrest based on suspicion of involvement in a crime” (“Протокол о задержании по подозрению в совершении преступления”; hereafter - the “detention record”), issued by Major Tsarruk of the Dniprovsky District Police Department of Kyiv, a police patrol stopped the applicant, described as Amir Damirovich Kubulov, born on 14 August 1979, residing at 86, Zenkova Street, Almaty, Kazakhstan, on 23 August 2004 at 9.20 p.m. The detention record was dated with the same date and time.
18. In smaller print, in what appear to be standard blocks of text, the following grounds for arrest (основания задержания) are set out:
“(...) 1. Person had been arrested at the moment of committing a crime or in flagranto;
2. The witnesses of a crime and its victims have identified this person as an offender;
3. Traces of crime were found on the suspect or his clothes, with him or in his place of residence;
4. [There is] other data, giving grounds to suspect the person in committing a crime, if he/she tried to escape or has no permanent place of residence or when the identity of the suspect has not been established.”
19. The detention record also set out, again in small print, reasons for the applicant's arrest (мотивы задержания):
“To prevent crime.
1. To prevent a possibility of disappearing from the investigation and the court, ensuring enforcement of a criminal sentence.
2. To prevent events which would hinder the establishment of objective truth in the criminal case.”
20. The detention record then noted, in large print, that the applicant was suspected of involvement in the crime envisaged in Article 96 § 1 of the Criminal Code of Kazakhstan. The detention record was signed by Major Tsarruk and stated that the applicant had been “familiarised” with the reasons for his detention (the applicant signed it and marked it stating that he familiarised with it in Russian language - “ознакомлен”), and with his rights and duties, as it was provided by Article 10 of the Regulation “On temporary detention of persons suspected in committing of crime”. It contained no exact date and time when the applicant had been familiarised with the reasons for his detention. After the applicant's signature, the record stated that the prosecutor had been informed about the applicant's arrest at 10.00 p.m. on 23 August 2004.
21. In their further observations of 13 March 2007 the Government contended that after his apprehension at 9.20 p.m. on 23 August 2004 under Article 115 of the Code of Criminal Procedure and Article 10 of the Regulation of 13 July 1976 “On the temporary detention of persons suspected of having committed a criminal offence” (see paragraphs 65 - 67 below), the applicant stayed at the Dniprovsky District Police Station. In particular, they referred to the aforementioned detention record. The Government also stated that the applicant had been familiarised with the reasons for his detention after 10.00 p.m. on the same day. They did not specify when.
22. In their further observations of 23 May 2007 the Government stated that the applicant was taken to the sobering up facility at 9.25 p.m. on 23 August 2004. They referred to a written reply of 4 April 2007 to a request of the Dniprovsky Prosecutor dated 28 March 2007. In reply the centre's director informed the District Prosecutor that the applicant arrived at the facility at 9.25 p.m. on 23 August 2004 and left it at 7.30 a.m. on 24 August 2004. The director also stated that the applicant had been diagnosed with acute alcohol intoxication with perception, psychic and behavioural disorders.
23. According to the medical card concluded by the sobering up facility (Kyiv City Narcological Clinical Hospital “Sociotherapy” of the Ministry of Health), the applicant arrived there at 9.25 p.m. on 23 August 2004. The medical card also provided that the applicant's diagnosis of alcohol intoxication and respective disorders had been established on 24 August and that he had stayed in the facility for two nights. The centre's contemporaneous records note the applicant as having been brought to the centre from Malyshka street in the Dniprovsky District of Kyiv by a Mr Kolomiyets. The card states that the applicant stayed at the sobering up facility from 9.25 p.m. on 23 August 2004 to 7.30 a.m. on 25 August 2004, that is, for two nights.
24. On 24 August 2004 the MIK, in reply to request of the Ministry of the Interior of Ukraine, confirmed to the Kyiv Department of the Interior that the applicant was wanted as a murder suspect.
25. The applicant, through his mother's submissions to the Kyiv City Court of Appeal (Апеляційний суд міста Києва) on 13 September 2004, contended that he had been taken directly to the sobering up facility on 23 August 2004 as he had no identity papers with him, and, in his observations of 21 October 2005 he stated that the detention record dated 9.20 p.m. on 23 August 2004 had been prepared only after his identity had been established and the authorities were aware that the applicant was wanted by the law enforcement authorities of Kazakhstan.
26. On 3 September 2004 the MIK established that Mr Kaboulov was a citizen of Kazakhstan.
27. On the same date the General Prosecutor's Office (“GPO”) of Ukraine informed the Kazakhstan GPO that the applicant had been apprehended in Ukraine and asked whether Kazakhstan intended to seek the applicant's extradition.
28. After his return to the police station, the applicant made an “explanatory statement” to a prosecutor, dated 8 September 2004, which was written for him in Ukrainian by the senior assistant of Kyiv prosecutor. The applicant confirmed its contents in Russian (“записано верно”). After stating that he had not committed any criminal offences, he added without mentioning any exact times, that he had been stopped by police officers on 23 August 2004, who took him to the sobering-up facility and after that to the police station, where he remained.
29. On 10 September 2004 the Deputy Prosecutor of Kyiv informed the Extradition Department of the GPO of Ukraine of the details as to the applicant's identity. In particular, it was established that the applicant's name was Mr Amir Damirovich Kaboulov and that he was a citizen of Kazakhstan only. The information also stated that he committed no crimes on the territory of Ukraine and did not have refugee status.
30. On 13 September 2004 the Dniprovsky prosecutor and the head of the Dniprovsky District Department of the Interior lodged a petition with the Dniprovsky District Court of Kyiv (“the Dniprovsky Court”; Дніпровський районний суд міста Києва) seeking a warrant for the applicant's detention in SIZO no. 13 of the State Department for Enforcement of Sentences.
31. On the same day the Dniprovsky Court, in the presence of the prosecutor and after having heard the applicant, issued a warrant for the applicant's detention on the grounds that there was a search warrant in respect of him in Kazakhstan and that the Ukrainian authorities were awaiting documents from the Kazakh authorities for his extradition to Kazakhstan. The court found that the applicant had been picked up drunk at Malyshka street by the police at 9.20 p.m. on 23 August 2004. The court noted that the applicant had explained to the police officers at the time of his arrest that he resided in Kyiv without registration. The court decided to detain the applicant in SIZO no. 13, and also ruled that the applicant's detention was not to exceed 30 days (that is, until 12 October 2004). The сourt further decided that the applicant should be detained on the basis of Articles 60 – 62 of the Minsk Convention, as he was to be extradited to Kazakhstan. The Court also referred to Articles 165 §§ 1 and 2 of the Code of Criminal Procedure. The applicant was informed of the possibility of lodging an appeal.
32. On 16 September 2004 the GPO of Kazakhstan requested the GPO of Ukraine to detain the applicant pending extradition.
33. On 18 September 2004 the GPO of Kazakhstan, by letter, confirmed the search warrant in respect of the applicant and requested his extradition to Kazakhstan on the grounds that on 30 June 2003 the applicant had been charged with non-aggravated murder (Article 96 § 1 of the Criminal Code) of Zh.U.Zh. They also stated that criminal proceedings had been pending against the applicant since 16 June 2003 and he had been on the wanted list since 28 June 2003. The GPO of Kazakhstan assured the Ukrainian authorities that the applicant would not be prosecuted for criminal offences different from those mentioned in the extradition proceedings without the consent of the Ukrainian authorities.
34. On 2 December 2004 the GPO of Kazakhstan, again by letter, gave additional assurances confirming that the applicant would not be liable to the death penalty in Kazakhstan and that his rights and lawful interests in the course of criminal proceedings would be adequately protected. They mentioned inter alia a moratorium on executions imposed by the Presidential Decree of 17 December 2003 until full abolition of the death penalty.
35. On 23 and 24 September 2004 the applicant's mother and his advocate in the domestic proceedings (Mr Priduvalov), respectively, appealed against the order of the Dniprovsky Court of 13 September 2004. They requested that the applicant be released subject to an undertaking not to abscond, until the applicant's identity had been verified. In particular, they claimed that the applicant was not a citizen of Kazakhstan, but a citizen of the Russian Federation and that the order referred to a different person. They also requested an extension of the time-limit for lodging an appeal as the applicant had not been informed about the possibility of doing so in good time.
36. On 27 September 2004 the Deputy Prosecutor General of Ukraine informed the GPO of Kazakhstan that the GPO of Ukraine agreed to extradite the applicant. The letter mentioned the need to organise the applicant's transfer to Kazakhstan. By a separate letter written on the same date, the Deputy Prosecutor General informed the Ministry of the Interior, the SDES and the Deputy Prosecutor of Kyiv that he approved the applicant's extradition and his transfer to Kazakhstan under guard.
37. On 5 and 10 October 2004 the applicant's lawyers (Mr Priduvalov and Ms Shevchenko) appealed against the failure of the judge of the Dniprovsky Court to pursue the appeal proceedings asked for by the applicant's mother and lawyer on 23 and 24 September 2004. On 7 October 2004 the Kyiv City Court of Appeal refused to consider the appeal on the grounds that it had been lodged out of time, and remitted it for a decision on its admissibility to the first-instance court (Articles 165 (2), sub-paragraphs 7 and 353 of the Code of Criminal Procedure), which on 16 November 2004 rejected the appeals lodged by the applicant's mother and Mr Priduvalov as his mother had no standing in the proceedings and the appeal had been lodged out of time, respectively. This ruling was not appealed.
38. On 14 October 2004 the applicant's mother requested the Governor of SIZO no. 13 to release the applicant from detention on the grounds that he was detained unlawfully.
39. On 15 October 2004 the applicant's advocate lodged a complaint with the Shevchenkivsky District Court of Kyiv (“the Shevchenkivsky Court”; Шевченківський районний суд міста Києва) requesting that the applicant be released from SIZO no. 13.
40. On 23 October 2004 the applicant was transferred to Kharkiv SIZO no. 27 with a view to his further transfer to the competent authorities of the Russian Federation which were to hand the applicant over to the law-enforcement authorities of Kazakhstan.
41. On 24 November 2004 the applicant's extradition was suspended by the GPO of Ukraine, following the interim measure indicated to the Government of Ukraine under Rule 39 of the Rules of Court on 23 November 2004.
42. On 6 January 2005 the applicant lodged complaints with the Dniprovsky Court seeking a finding that his detention in Kharkiv SIZO no. 27 was unlawful. On 18 January 2005 the court refused to accept the applicant's complaint as it had been lodged with the wrong court, contrary to the requirements as to territorial jurisdiction.
43. On 11 April 2005 the applicant's lawyer, Mr Bushchenko, informed the Court that the applicant had requested refugee status in Ukraine and that this request was being examined.
44. On 30 November and 1 December 2004 the applicant's mother lodged administrative complaints with the Zhovtnevy District Court of Kharkiv (“the Zhovtnevy Court”; Жовтневий районний суд міста Харкова) requesting the applicant's release and a finding that the inactivity of the Governor of Kharkiv SIZO no. 27 in examining the applicant's complaints about his continued detention had been unlawful.
45. On 10 December 2004 the court refused to consider the complaint as it had been lodged under the Code of Civil Procedure. The court suggested that the applicant should re-lodge the complaint under Article 106 of the Code of Criminal Procedure (detention of a criminal suspect by the investigating body) as it concerned his detention and the criminal proceedings instituted against him in Kazakhstan.
46. On 24 March 2005 the Kharkiv Regional Court of Appeal (Апеляційний суд Харківської області) quashed the ruling of 10 December 2004 and decided not to examine the applicant's mother's complaints as she had no standing in the criminal proceedings against her son.
47. No appeal on points of law was lodged with the Supreme Court against this ruling.
48. On 7 and 10 December 2004 the applicant's lawyer in the domestic proceedings (Ms Shevchenko) and the applicant's mother each lodged a complaint with the Pechersky District Court of Kyiv (“the Pechersky Court”; Печерський районний суд м. Києва) against the GPO of Ukraine requesting that the applicant's extradition to Kazakhstan be prohibited. They also asked the court to declare the GPO of Ukraine's decision to extradite the applicant unlawful. They referred, inter alia, to Articles 5, 6, 7 and 13 of the European Convention on Human Rights, Article 55 of the Constitution of Ukraine and various provisions of the Code of Civil Procedure. A hearing in the Pechersky Court was scheduled to take place on 26 January 2005, but was adjourned to 28 January 2005.
49. On 28 January 2005 the Pechersky Court, in the absence of the representatives of the GPO of Ukraine, allowed the applicant's complaints, declared the decision to extradite the applicant to Kazakhstan unlawful and prohibited the GPO of Ukraine from extraditing the applicant.
50. On 28 February 2005 the GPO of Ukraine lodged an appeal with the Kyiv City Court of Appeal against the aforementioned judgment, requesting that the case be remitted for fresh consideration to the firstinstance court. They mentioned in the appeal that the applicant had been detained in Kyiv on 23 August 2004. On 14 and 17 March 2005 the applicant lodged counter-arguments against the GPO of Ukraine's appeal, referring inter alia to various provisions of the domestic and international law, including Article 5 § 1(f) of the Convention and Article 106 of the Code of Criminal Procedure.
51. On 27 May 2005 the Kyiv City Court of Appeal examined the GPO of Ukraine's appeal, quashed the decision of the Pechersky Court of 28 January 2005 and remitted the case for fresh consideration. In particular, it found that the Pechersky Court's judgment of 28 January 2005 had been adopted in the absence of the GPO of Ukraine's representatives, who had not been duly informed of the date and time of the hearing in the case, as required by Article 307 of the Code of Civil Procedure.
52. On 1 July 2005 the Pechersky Court terminated the proceedings on the grounds that the applicant had failed to comply with the procedure prescribed by law for introducing complaints in criminal proceedings. In particular, the court found that the complaints against the GPO of Ukraine should be examined in the course of criminal proceedings, in accordance with the procedural rules of the Code of Criminal Procedure (paragraphs 7 and 8 of Article 106 of the Code) and not as administrative complaints under the Code of Civil Procedure.
53. On 22 September 2005 the Kyiv City Court of Appeal upheld the ruling of 1 July 2005, finding it to be lawful. In particular, it referred to resolution no. 16 of the Plenary Supreme Court of 8 October 2004 and the relevant provisions of the Code of Administrative Justice (Articles 199, 200, 205 and 206), stating that as the applicant complained about lawfulness of his detention and his possible extradition, he had to appeal against it to the court in accordance with the rules enshrined in the Code of Criminal Procedure and the relevant provisions of the international treaty, which were applicable to extradition.
54. On 12 October 2005 the applicant appealed on points of law to the Higher Administrative Court against the ruling of 22 September 2005. The outcome of these proceedings is unknown.
55. On 20 December 2004 the applicant lodged complaints with the Zhovtnevy Court seeking a declaration that his detention in Kharkiv SIZO no. 27 was unlawful. He referred to Articles 29 and 55 of the Constitution, and Article 5 §§ 1, 3, 4 and 5 of the Convention. In particular, he alleged that the time-limit for his detention had expired on 12 October 2004 (thirty days after 13 September 2004, the date of the decision of the Dniprovsky Court to detain him).
56. On 25 January 2005 the court resumed the examination of the applicant's appeal. The hearing was adjourned until 7 February 2005 owing to the failure of the applicant's representative to appear before the court.
57. On 7 February 2005 the court decided to adjourn the examination of the applicant's appeal in order to obtain further evidence from the Pechersky Court and the GPO of Ukraine. The next hearing was scheduled for 4 March 2005, when the proceedings were again adjourned for the same reason.
58. On 14 April 2005 the court adjourned the proceedings pending the examination of the GPO of Ukraine's appeal against the decision of the Pechersky Court of 28 January 2005 (see paragraph 50 above).
59. On 7 September 2005 the Zhovtnevy Court rejected the applicant's complaints. In particular, it found that the applicant was detained in Kharkiv SIZO no. 27 not on the basis of the decision of the Dniprovsky Court of 13 September 2004, but on the basis of the extradition warrant (санкція) by the Deputy Prosecutor General and his decision to transfer the applicant under guard (етапувати та конвоювати) to Kazakhstan (see paragraph 36 above). Furthermore, the court referred to the fact that the extradition had been suspended in view of the proceedings pending before the European Court of Human Rights. It therefore found the applicant's detention to be lawful. It referred inter alia to Article 29 of the Constitution of Ukraine, Articles 56 – 62 of the Minsk Convention, Articles 165(1) and 165(2) of the Code of Criminal Procedure, as well as Article 5 §§ 1, 3 and 4 of the Convention. It also held that the applicant's name was “Amir Damirovich Kaboulov” and that he was a citizen of the Republic of Kazakhstan.
60. On 14 October 2005 the Zhovtnevy Court forwarded the case file to the Kharkiv Regional Court of Appeal with a view to the hearing of the applicant's appeal which was scheduled for 15 November 2005. The outcome of these proceedings is unknown.
61. The relevant domestic law and practice, including the relevant provisions of the Constitution of Ukraine, Codes of Civil and Criminal Procedure and the Code on Administrative Justice and the relevant extracts from the Supreme Court's practice, are summarised in the judgment of Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31, 23 October 2008).
62. Article 29 of the Constitution of Ukraine reads as follows:
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody.
Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender.
Everyone detained has the right to challenge his or her detention in court at any time.
Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”
63. The relevant provisions of the Convention are summarised in the judgment of Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31, 23 October 2008), and Ryabikin v. Russia (no. 8320/04, § 104, 19 June 2008). Other relevant extracts from the Convention read as follows:
“The requesting Contracting Party shall immediately adopt the necessary measures for detention of a person whose extradition is requested, except in circumstances in which the person cannot be extradited.”
Procedural relations with regard to extradition and criminal prosecution
“Procedural relations with regard to extradition, criminal prosecution, and enforcement of investigative sanctions involving citizens' rights and necessitating the approval of the prosecutor shall be handled by the prosecutors general (prosecutors) of the Contracting Parties.”
64. According to section 11 § 5 of the Militia Act, persons arrested for alcohol intoxication in a public place, unable to walk, posing danger to themselves or others, shall be transferred by police that arrested them to specialised sobering-up facilities or to their home. They shall be held in police stations only if their address is unknown or there is no sobering-up facility in the locality.
65. According to the section 3 of the Regulation, each instance of detention of a suspect shall be documented. The relevant record shall contain reasons, grounds, motives, exact day and time, year and month, place where a suspect was arrested, explanations from detained and the time when the record was concluded. The record shall be signed by the suspect and a person who prepared it. The period of detention shall be calculated from the moment the suspect was brought to the relevant investigation body or from the actual moment of apprehension.
66. According to section 4 of the Regulation, the lawenforcement authorities must inform the prosecutor of any facts related to the detention of a person within twenty-four hours of the time he or she was apprehended. The prosecutor must issue a warrant for detention within forty eight hours from receipt of such information, or release the detained.
67. Section 10 of the Regulation envisaged that a record should be drawn upon person's apprehension and that this person should be informed of the rights of an apprehended suspect.
68. The relevant extracts provide as follows:
“5. Cruel, inhuman or degrading treatment or punishment (Article 16)
5.1. The death penalty
In May 2007 the scope of the application of the death penalty permitted by the constitution was reduced from 10 “exceptionally grave” crimes to one – that of terrorism leading to loss of life. The death penalty also remains a possible punishment for “exceptionally grave” crimes committed during times of war. A person sentenced to death in Kazakhstan retains the right to petition for clemency. A moratorium on executions, which had been imposed in 2003, remained in force and no death sentences were passed during 2007 and the first 10 months of 2008. All 31 prisoners on death row had their sentences commuted to life imprisonment.
Amnesty International is concerned that the death penalty could be applied to acts committed outside Kazakhstan and ... concern is heightened in view of the documented failure of judges to exclude evidence extracted under torture and the numerous reports of the authorities using national and regional security and the fight against terrorism to target vulnerable groups such as asylum-seekers and groups perceived to be a threat to national and regional stability. ....
5.2. Prison conditions
Whereas by all accounts Kazakhstan had implemented a successful reform of its penitentiary system ... the last two years have reportedly seen a decline in prison conditions, with many of the abusive practices reoccurring more and more often.
2007 saw a number of disturbances in prisons camps throughout the country with large groups of prisoners committing acts of self-mutilation, such as slicing their abdomens, hands and necks, reportedly in protest at deteriorating conditions of detention. The South Kazakhstan Regional office of the prosecutor opened a criminal case into the abuse of office, and the unlawful use of police equipment, by prison officials in relation to 77 prisoners committing acts of self-mutilation. The prosecutor's office was quoted by the press as admitting that prison officers had beaten and otherwise ill-treated prisoners. Nevertheless the prison officials were not charged under Article 347-1 (Torture). The prisoners themselves were charged with organizing disturbances in order to disrupt the functioning of the prison, a criminal offence under Article 361 of the Criminal Code punishable from one to up to 10 years' imprisonment.
NGOs told Amnesty International that the conditions of detention in prisons had severely deteriorated since 2006 and that they were receiving increasing numbers of complaints of torture or ill-treatment from prisoners or from relatives. It was becoming increasingly difficult for prisoners to lodge complaints about torture or other ill-treatment by prison officers, according to these reports, because all correspondence was vetted by the prison administration and complaints could only be forwarded to the local prosecutor's office with the permission of the prison administrator, in contravention of the rights of prisoners and detainees. NGOs were told that prisoners had to pay the prison administration to see a medical doctor or to get medical treatment, or to send letters or make phone calls to their families, that they were often locked up in punishment cells for extended periods of time for either complaining about cruel, inhuman or degrading treatment or punishment or for disobeying orders by prison officers. Some methods of punishment meted out to prisoners reportedly included being forced to clean toilets with their bare hands and wash the floor naked.”
69. The relevant extracts from the Special Rapporteur's report provide as follows:
“... 20. Moratorium on the death penalty
In December 2003, the Senate proposed a moratorium on the death penalty. By presidential decree the moratorium was extended in January 2004 and the Criminal Code amended to introduce life imprisonment instead of capital punishment. With all human rights organizations, the Special Rapporteur welcomes this development, especially having in mind that 40 persons were executed in 1999; 22 in 2000 and 15 in 2001. Since the moratorium, only one death sentence was registered and the Supreme Court commuted it to life imprisonment.”
70. The relevant extracts from the Report read as follows:
“.... Though there has been a moratorium on executions since December 2003 and life imprisonment has been a viable legal alternative to the death sentence since January 2004 -- both developments welcomed by the IHF -- this latest ruling signals that obstacles remain in Kazakhstan's journey towards abating the use of the death penalty and, eventually, abolishing it. With the moratorium in place, Ibragimov now goes to death row, joining 27 other inmates and awaiting his death should the political will of the Kazakh government break and lift the moratorium. ...”
71. The relevant extracts from the Report of the Committee against Torture read as follows:
“... The Committee was concerned about the allegations of torture and other degrading treatment committed by law enforcement officials. The lack of independence of the [prosecutors], the defence counsel and the judiciary was also raised with concern. The Committee highlighted that allegations of torture are not being considered seriously, as reflected by the fact that investigations are being postponed and judges sometimes refuse to recognise evidence of torture.
Another point of concern related to overcrowding and reduced access to medical care in prisons and detention centres.
... The Committee recommended that the crime of torture, as outlined in the Penal Code, be amended in line with the Convention. It urged the State Party to ensure a fully independent mechanism of complaints and enable the defence counsel to follow a case from the beginning and to gather evidence ...”
72. The relevant extracts from the analysis by the OSCE Office for Democratic Institutions and Human Rights on the death penalty (by means of shooting) in Kazakhstan, dated 20 November 2004, read as follows:
“.... There are currently 27 persons on death row in Kazakhstan. Persons subjected to the moratorium are currently detained in pre-trial detention facilities.
... Official statistics provided by the Office of the Prosecutor-General indicate that nine death sentences were passed in the period from 30 June 2003 to 30 March 2004. No death sentences entered into force (i.e., all appeals stages exhausted) in this period. According to unofficial statistics, only one death sentence has been passed since the moratorium was put in place, but this was subsequently reduced to life imprisonment by the Supreme Court.
... Official statistics provided by the Office of the Prosecutor-General indicate that no executions were carried out in the period from 30 June 2003 to 30 March 2004.
... All persons sentenced to death have the right to appeal for commutation of the sentence to life imprisonment or 25 years' imprisonment (Art. 49(3) of the Criminal Code, Art. 31(2) of the Criminal Procedure Code, and Art. 166(1) of the Criminal Executive Code). The cases of all persons sentenced to death are considered regardless of whether the sentenced person has submitted an appeal for clemency (Presidential Decree No. 2975 “On provisions for pardoning procedure by the president of the Republic of Kazakhstan”, 7 May 1996)
... Relatives are not informed in advance of the date of execution, the body is not returned, and the location of the place of burial is not disclosed to the relatives until at least two years after the burial has taken place (Art. 167, Criminal Executive Code).”
73. The relevant extracts from the US Department of State report read as follows:
“The Government reported that 51 criminal cases against law enforcement officers for physical abuse were filed during the year.
... Prison conditions remained harsh and sometimes life threatening. Mistreatment occurred in pre-trial detention facilities and in prisons, and nongovernmental organizations (NGOs) and international organizations reported that abuses of prisoners increased after the head of the penitentiary system and approximately onethird of the prison administrators were replaced in 2003. The December 2003 transfer of supervision of pre-trial detention facilities from the Ministry of the Interior to the Ministry of Justice was completed in May; as a result of this transfer, conditions improved, although they remained harsh. The head of the prison system and two deputies resigned in February following reports of brutal beatings of inmates in certain prisons. Violent crime among prisoners was common. During the year, the number of prisoners continued to decline significantly. Much of the decrease was associated with the 2002 Humanization of Criminal Justice Law, which prescribes punishments other than imprisonment, such as probation, for minor first offences.
The Government reported 2,600 total violations, including physical force violations, by employees of the penitentiary system during the year. Some officials were punished for these abuses; 911 employees received disciplinary punishment, including fines, demotions, and dismissal and another 8 employees were convicted on criminal charges.
In the past several years, prison diets and availability of medical supplies have improved. There were 6 tuberculosis colonies and 2 tuberculosis hospitals for prisoners; 5,591 prisoners were housed in these colonies. While the incidence of tuberculosis stabilized, HIV/AIDS continued to be a problem. The Government, together with the U.N. Development Program (UNDP), continued to implement a project to prevent HIV/AIDS and other sexually transmitted diseases in penitentiaries. Prisoners were permitted to have visitors, although the number and duration of visits depended on the security level of the prison and the type of sentence being served.
Prisoners were held in close proximity, barracks-style facilities; however, a government program to build new correctional facilities and rehabilitate existing facilities continued throughout the year.
Incidents of self-mutilation by inmates to protest prison conditions continued. In general, the Government did not take action in response to self-inflicted injuries by prisoners... ”
74. The relevant extracts from the report read as follows:
“(...) The following human rights problems were reported: an incident of unlawful deprivation of life; ... detainee and prisoner abuse; unhealthy prison conditions; ... lack of an independent judiciary; ...
a. Arbitrary or Unlawful Deprivation of Life
... The court sentenced Rustam Ibragimov, a former ministry of internal affairs official, to death, though he will remain in prison as long as the death penalty moratorium remains in effect. ....
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The constitution and law prohibit such practices, but police and prison officials at times tortured, beat, and abused detainees, often to obtain confessions. In its Human Rights Commission's annual report, the government acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and procurator's practices that overemphasized a defendant's confession of guilt over collecting other types of evidence in building a criminal case against a defendant.
... The ombudsman's office reported 2,613 citizen complaints during the year, over 20 percent of which were allegations of abuse by law enforcement.
... Prison and Detention Centre Conditions
Though the government implemented prison reforms and granted greater access, prison conditions remained harsh and facilities did not meet international health standards. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took some steps to address systemic patterns that encouraged prisoner abuse. These included continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MVD police; however, no prison officials were prosecuted for abuses during the year.
The government conducted 13 criminal investigations of penitentiary officials for corruption in the first eight months of the year. These investigations resulted in 12 convictions and one acquittal.
... Although the government made some efforts to upgrade existing facilities and build new ones, buildings at many prisons remained outdated and hygiene conditions were substandard. In February the procurator general's office issued an order closing one of the buildings in the Semipalatinsk pre-trial investigation facility because it did not meet sanitary standards and posed a threat to the health and lives of detainees. On May 25, the procurator general's office issued a statement criticizing the MOJ for failing to address overcrowding, sewage, and poor sanitation in prisons.
During the year, 31 detainee deaths, including five suicides, were reported at pre-trial detention facilities. The government reported 268 deaths in prisons during the year, including 26 suicides.
Incidents of self-mutilation by inmates to protest prison conditions continued. On March 31, inmates in the Zarechny prison outside of Almaty rioted to protest harsh conditions, mistreatment, and confiscation of personal belongings. According to human rights activists, the prison was originally designated to house convicted law enforcement officers. However, prior to the riot, regular criminals were added to the population, leading to increased tension and the tightening of controls. Twenty-four inmates mutilated themselves by cutting their abdomens, and three inmates were injured when prison guards restored order. Local NGOs were permitted to visit the facility and interview inmates after the incident. An activist from the Public Committee for Monitoring Human Rights reported that the prison officials' response to the riot was generally appropriate. Several officers of the prison administration were disciplined for their failure to deal with the protest action. After the incident, prison officials transferred the regular criminals out of the population to reduce tension and problems.”
75. The relevant extracts from the US Department of State report read as follows:
“(...) There were the following human rights problems: (...) detainee and prisoner abuse; unhealthy prison conditions; arbitrary arrest and detention; lack of an independent judiciary; (...) pervasive corruption, especially in law enforcement and the judicial system; (...)
a. Arbitrary or Unlawful Deprivation of Life
In contrast with the previous year, there were no reports that the government or its agents committed arbitrary or unlawful killings. (...)
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The procurator general's office (PGO) and the human rights ombudsman acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and prosecutorial practices that overemphasized a defendant's confession of guilt over collecting other types of evidence in building a criminal case against a defendant. Courts generally ignored allegations by defendants that their confessions were obtained by torture or duress.
The ombudsman's office reported 1,684 citizen complaints during the first 11 months of the year, approximately 300 of which were allegations of abuse or misconduct by law enforcement.
Prison and Detention Centre Conditions
NGOs and international observers reported that prison and detention centre conditions declined during the year. Observers cited worsening treatment of inmates and detainees, lack of professional training for administrators, and legislative changes on April 26 that criminalized prisoner protests and self-mutilation. The legislative changes also transferred operation of the parole system from penitentiary officials to the MIA and implemented forced tuberculosis treatment.
Prison conditions remained harsh and facilities did not meet international health standards, although the government began renovating three prisons and two detention facilities during the year as part of a penitentiary development program. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took steps to address systemic patterns that encouraged prisoner abuse, including continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MIA police. Authorities did not prosecute any prison officials for abuses during the year, although they opened 21 investigations for corruption, resulting in eight convictions by year's end.
During the first ten months of the year, 32 detainee deaths, including six suicides, were reported at pre-trial detention facilities. The government reported 40 suicides in prisons during the first 11 months of the year. Incidents of self-mutilation by inmates to protest prison conditions continued.
e. Denial of Fair Public Trial
The law does not provide adequately for an independent judiciary. The executive branch limited judicial independence. Procurators enjoyed a quasi-judicial role and were permitted to suspend court decisions.”
76. The Constitution of the Republic of Kazakhstan envisages the death penalty, as an exception to the right to life. A Presidential Decree placing a moratorium on executions was introduced on 17 December 2003.
77. The relevant extracts from the Constitution of Kazakhstan provide as follows:
“1. Everyone shall have the right to life.
2. No-one shall deprive a person of his/her life. The death penalty shall be established by law as an exceptional punishment for terrorist crimes which have resulted in the loss of human life, and also for especially grave crimes, committed in time of war, with a sentenced person having a right to appeal for pardon.”
“1. The Prosecutor's Office, acting on behalf of the State, effectuates highest supervision over strict and unified application of the laws, Presidential decrees, and other normative acts of the Republic of Kazakhstan ...”
78. Article 39 of the Criminal Code (Types of punishment), provides that persons found guilty of committing criminal offences may be subject to the capital punishment as one of the types of punishment. Under Article 49 (Capital punishment) envisages that:
“1. Capital punishment, that is a sentence to be shot, is an exceptional form of punishment reserved for especially grave crimes infringing a person's right to life and for crimes committed in war time or in a combat situation, high treason, crimes against the peace and safety of mankind and especially grave military crimes.
2. Capital punishment shall not be applied to women, to persons who committed a crime while under the age of eighteen or to men who have reached the age of sixtyfive when the sentence is passed by a court.
3. Should the President of the Republic of Kazakhstan introduce a moratorium on enforcement of the death penalty, the enforcement of a death sentence shall be suspended for the effective period of the moratorium.
4. A sentence of death shall be implemented not earlier than one year from the time of its entry into force and no less than one year after the abolition of a death penalty moratorium.
5. Under the pardon procedure, the death penalty may be replaced with life imprisonment or with deprivation of liberty for a period of twenty-five years in a special-regime correctional facility. Persons sentenced to the death penalty shall, in the event of the abolition of a moratorium, have the right to petition for pardon, irrespective of whether or not they had made such a petition prior to the introduction of the moratorium.”
79. The third party stated that the legislation of Kazakhstan contained insufficient guarantees to ensure respect for human rights. In particular, it contained no sufficient guarantees for a person not to be ill-treated. In particular, they stated that the Criminal Code of Kazakhstan provided no punishment for ill-treatment, as it only referred to torture. Furthermore, they stated that in cases of ill-treatment by the law enforcement or prison authorities, these complaints were investigated by the same authorities, who were directly dependent on the executive, thus it created a vicious circle of impunity. Furthermore, under Article 82 of the Constitution of Kazakhstan judges were to be appointed by the President of Kazakhstan, having no authority to supervise complaints of ill-treatment. Thus, there was no independent body able to investigate complaints in respect of ill-treatment. Furthermore, they referred to the Amnesty International report of January 2006 – March 2007, the US State Department report of 2006 and the Almaty Helsinki Committee report for 2004, which, from their point of view, also proved that legal practices in Kazakhstan did not comply with human rights standards.
VIOLATED_ARTICLES: 13
3
34
5
VIOLATED_PARAGRAPHS: 5-1
5-2
5-4
5-5
VIOLATED_BULLETPOINTS: 5-1-f
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-69506
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KOWALSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Higin Kowalski, is a Polish national who was born in 1936 and lives in Warsaw, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 August 1990 the applicant sued the Halinów Municipality before the Warsaw Regional Court (Sąd Wojewódzki), seeking payment.
The proceedings were terminated on 22 June 2001. On 1 August 1999, the date on which the application was lodged with the Court, they were pending before the Supreme Court (Sąd Najwyższy).
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-94863
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MIKOLENKO v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1954 in Ukraine and lives in Tallinn.
6. The applicant is a former Soviet and Russian Army officer who served from 1983 in the territory of Estonia. After the restoration of Estonian independence, he was refused an extension of his residence permit in that country. His complaints were dismissed by the domestic courts; the final judgment was delivered by the Supreme Court (Riigikohus) on 17 April 2003. Subsequently, he lodged an application with the Court, alleging, among other complaints, that his right to respect for his private and family life, guaranteed under Article 8 of the Convention, had been violated by the Estonian authorities. On 5 January 2006 this application was declared inadmissible (see Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006).
7. The circumstances of the applicant’s stay in Estonia and the Estonian authorities’ refusal to extend his residence permit, as well as a summary of the relevant domestic and international legal provisions may be found in the decision mentioned above. In brief, although the Estonian authorities had finally refused to extend the applicant’s residence permit, he – backed by the Russian Government – was of the opinion that he was still entitled to stay in Estonia under the terms of the agreement concerning social guarantees for retired military personnel of the armed forces of the Russian Federation in Estonia, concluded on 26 July 1994. The agreement provided that retired military personnel, that is persons discharged from the army service and receiving pension could apply for a residence permit in Estonia. According to the Russian Government the applicant was dismissed from the military service on 20 July 1994 for health reasons and excluded from the lists of the military unit on 18 October 1994.
8. The Estonian authorities, to the contrary, considered that he did not fall under the agreement concerning social guarantees but rather under the treaty on the withdrawal of the Russian troops from the Estonian territory, also concluded on 26 July 1994, as he had been in the active military service at the time of the conclusion of the treaty. He had only been assigned to the reserve forces on 4 August 1994 and discharged from the military unit as of 18 October 1994. Accordingly, he had been obliged to leave Estonia under the treaty.
9. On 21 July 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”) ordered the applicant to leave the country on 17 September 2003 at the latest. He was warned that in the event of failure to comply with the order, he would be expelled immediately. The applicant challenged the order before the Tallinn Administrative Court (halduskohus) which, on 24 October 2003, dismissed the complaint. The applicant appealed, but his appeal was dismissed by the Tallinn Court of Appeal (ringkonnakohus). On 27 October 2004 the Supreme Court refused leave to appeal.
10. In the meantime, on 29 October 2003, the applicant was arrested. His immediate expulsion was not possible as he only presented his expired passport on arrest, saying that he did not know where his valid Russian passport was. On 31 October 2003 the Tallinn Administrative Court decided, at the request of the police, that the applicant was to be taken to a deportation centre for execution of the deportation order. The Administrative Court authorised his detention for up to two months, starting from 3 November 2003, giving him some time to find his valid passport. The Government have submitted to the Court a copy of the applicant’s Russian passport valid until 24 January 2008. The applicant did not present this document in the subsequent proceedings.
11. According to the applicant he lodged an appeal against the Administrative Court’s decision of 31 October 2003 but since his detention was subsequently, on 30 December 2003, extended by the Administrative Court, the appeal became void of substance and had to be withdrawn. According to the Government the applicant filed a notice of his intention to appeal, as required by the applicable rules of procedure, but he never actually lodged an appeal.
12. From 4 November 2003 the applicant was detained in the deportation centre in Harku, Harju County.
13. The Government in their submissions have described the deportation centre as an institution with a guarded perimeter kept under visual and electronic supervision. It can accommodate 42 persons in rooms designed for four persons but as a rule no more than two persons are placed in one room. The detainees can use eating and rest areas equipped with television, radio, newspapers and literature. There is table tennis equipment and various board games and the detainees have free access to toilets and shower. Washing and drying machines are available. There are four periods a day (totalling almost ten hours) for outdoor walks. The detainees are served three meals a day, including at least two hot meals; there is a nurse present in the centre four hours a day and, if the need arises, a general practitioner is available. A psychiatrist and a psychologist visit the centre regularly. The detainees can buy additional food and other items through the centre; they are also allowed to receive parcels, send and receive letters and use the telephone. Furthermore, they can meet consular officials of their country of nationality, defence counsel and ministers of religion. Subject to authorisation they can also be visited by other persons, such as family members.
14. At the request of the Board, the applicant’s detention was extended by the Tallinn Administrative Court once every two months. It was open to the applicant to appeal against the rulings of the Administrative Court to the Tallinn Court of Appeal and, thereafter, to the Supreme Court. He did so in some but not in all cases. On each occasion the higher courts dismissed the appeals.
15. The courts found that the applicant’s detention was lawful and justified for the purpose of ensuring his expulsion. According to the courts’ rulings, the applicant had allegedly lost his valid Russian passport and despite the requests by the Board to the Embassy of the Russian Federation in Estonia (“the Embassy”) the latter had not been able to issue a new travel document to the applicant because of his refusal to fill in the required application forms. The Board was ready to issue the applicant a temporary travel document but according to the Russian Embassy it was not possible to add an entry permit to such a document. The courts considered that detention was an appropriate measure to motivate the applicant to co-operate with the authorities and avoid a situation where an expulsion order could not be executed merely because of the applicant’s unwillingness. They were of the opinion that the length of the applicant’s detention in the deportation centre depended on him alone. The courts also noted that the applicant’s deportation might be possible under the Agreement between the European Community and the Russian Federation on readmission once it entered into force.
16. On 8 October 2007 the Tallinn Administrative Court refused to further extend the applicant’s detention. It found that the length of his detention had become disproportionate and, in the circumstances, unconstitutional. He was released from the deportation centre the next day.
17. The Board and the Ministry of Foreign Affairs sought possibilities to secure travel documents for the applicant so that he could be removed; they were in contact with the Embassy to that end throughout the applicant’s detention. Furthermore, the Board on several occasions requested the applicant to fill in forms required by the Embassy to issue him a passport, but the applicant persistently refused.
18. The Board’s attempts to achieve the applicant’s removal included the following steps.
19. On 17 November 2003 the Board asked the Russian Embassy to issue the applicant a return certificate. On 10 December 2003 the Embassy replied that the applicant could return to Russia only on the basis of a Russian foreign passport, which he could apply for in person or through a representative.
20. On 4 February and 7 April 2004 the Board informed the Embassy that the applicant refused to fill in the required forms. They requested the Embassy’s assistance in issuing documents for the applicant and expressed their readiness to provide the applicant with a temporary travel document. The Embassy did not reply to the letters.
21. On 14 June 2004 the Board again reminded the Embassy of the situation and sought their agreement to affix an entry visa to a temporary travel document the Board was ready to issue. On 18 June 2004 the Embassy replied that this was not possible under Russian law.
22. On 23 July 2004 the Board asked the Ministry of Foreign Affairs to request the Embassy to provide the applicant with the requisite papers.
23. On 13 April 2006 the Board requested the Embassy’s assistance in issuing documents to the applicant. On 19 April 2006 the Embassy replied that they could issue him a passport upon his request.
24. On 11 June 2007 the Board submitted a request to the Embassy for the applicant to be readmitted on the basis of the readmission agreement. On 26 June 2007 the Embassy replied that the Russian party was of the view that the applicant did not fall under the readmission agreement as he had a legal basis for residing in Estonia (the Estonian-Russian agreement of 1994).
25. On 25 July 2007 the Board again asked the Ministry of Foreign Affairs to request the Embassy to provide the applicant with the requisite papers.
26. On 13 September 2007 the Board asked the Ministry of Foreign Affairs to contact the Immigration Service of the Russian Federation to provide the applicant with papers under the readmission agreement. On 30 October 2007 the Ministry of Foreign Affairs replied that the Russian authorities did not wish to consider the applicant’s readmission under the readmission agreement and therefore the readmission application concerning him had not been submitted to the Immigration Service of the Russian Federation. A meeting with the Russian party had been scheduled for November. On 19 November 2007 the Ministry of Foreign Affairs nevertheless transmitted the readmission application to the Immigration Service of the Russian Federation. On 1 December 2007 the Immigration Service replied that the applicant was not subject to readmission under the readmission agreement as he had a legal basis for residing in Estonia.
27. In 2002 and 2003 the Embassy and the Ministry of Foreign Affairs exchanged several notes and memoranda related to the Estonian authorities’ refusal to extend residence permits for some retired Russian Federation servicemen. On 2 February 2004 the Ministry of Foreign Affairs expressed readiness to hold bilateral consultations to regulate the matter, as proposed by the Embassy.
28. On 5 June 2006 the Ministry of Foreign Affairs sent a note to the Embassy drawing the Russian authorities’ attention to the fact that on 5 January 2006 the European Court of Human Rights had declared inadmissible the applicant’s application related to the Estonian authorities’ refusal to extend his residence permit. The Ministry of Foreign Affairs asked the Russian authorities to take the necessary steps for the applicant’s repatriation and requested their assistance in providing him with papers. On 16 June 2006 the Embassy expressed their readiness to issue the applicant identity documents, provided that the applicant submitted an application in writing.
29. On 26 July 2007 the Ministry of Foreign Affairs requested the Embassy to issue the applicant with the documents necessary for his readmission on the basis of the readmission agreement and transmitted a readmission application in respect of him to the Embassy. On 21 August 2007 the Embassy replied that retired servicemen of the Russian Federation, including the applicant, did not fall under the readmission agreement as they had a legal basis for residing in Estonia. They proposed regulating the matter by negotiation, through diplomatic channels. On 7 September 2007 the Ministry of Foreign Affairs agreed to hold negotiations.
30. On 25 December 2007 the Embassy reiterated that the Russian authorities considered that the applicant did not fall under the readmission agreement.
31. On 4 February 2008 the Ministry of Foreign Affairs confirmed its position that the applicant was subject to the readmission agreement.
32. On 19 February 2008 the Embassy emphasised that the main aim of the readmission agreement, as stated in its preamble, was to strengthen co-operation in order to combat illegal immigration. Any attempt to apply it to other situations was contrary to the principle of implementing international treaties in good faith. In particular, the readmission agreement was not applicable to the retired servicemen to whom the agreement of 1994 concerning social guarantees to retired military personnel applied.
33. In addition, the representatives of the Ministry of Foreign Affairs repeatedly met Russian officials to discuss possible solutions for the applicant’s case. In connection with the readmission agreement there have also been joint committee meetings to discuss issues related to the agreement and to conclude its implementing protocols. In March and September 2007 the Estonian authorities submitted a draft implementing protocol of the readmission agreement to the Russian party; a copy of the draft protocol was resubmitted to the Russian authorities on 4 March 2008. On 28 April 2008 the Embassy informed the Estonian authorities that the Immigration Service was ready to hold consultations at expert level concerning the implementing protocols in May 2008.
34. The Embassy sent the applicant several letters informing him of the Russian authorities’ position in the matter and giving reassurances that the Russian party would try to solve the issues through bilateral dialogue.
35. On 8 October 2007, the day the applicant’s release was ordered by a court (see paragraph 16 above), the Board gave him a written reminder that his expulsion order was still in force. Some further measures were applied as well – the applicant had to reside in his fixed residence, to report to the Board at certain intervals, and to inform the Board of any change in his place of residence or if he left it for an extended period.
36. On 5 February 2008 the Harju County Court, in misdemeanour proceedings, sentenced the applicant to ten days’ detention for staying in Estonia without a legal basis. The judgment was upheld in substance by the Tallinn Court of Appeal. On 14 May 2008 the Supreme Court refused, on procedural grounds, to examine the applicant’s appeal as it had not been drawn up by a lawyer as required by law.
37. Section 5 of the Obligation to Leave and Prohibition of Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus), as in force at the material time, defined expulsion as the enforcement of an obligation to leave in the cases and pursuant to the procedure provided by law.
Section 7 of the Act provided that an order to leave Estonia could be issued to an alien who was staying in Estonia without a legal basis and that it had to contain a warning of compulsory execution in the event of failure to comply with it. According to section 8, the compulsory execution was to take place after the sixtieth day following notification of the order.
Section 14(4) of the Act enumerated the instances where expulsion would not be applied. These included the case where expulsion was no longer feasible.
Section 18(1) of the Act stipulated that expulsion of an alien had to be completed within forty-eight hours of his or her arrest. If it was not possible to complete expulsion within that term, the person to be expelled could be placed in a deportation centre, subject to judicial authorisation, until their expulsion, but for no longer than two months (section 23(1)). This term could be extended at the request of the Board by up to two months at a time (section 25).
Under section 26-4(1) of the Act, the person to be expelled was required to co-operate in the organisation of the expulsion, including co-operating in obtaining the necessary documents for expulsion.
38. On 1 June 2007 an Agreement between the European Community and the Russian Federation on readmission entered into force. The aim of the agreement is to strengthen the parties’ co-operation in order to combat illegal immigration more effectively. Article 2 of the agreement, concerning readmission of Russian nationals, reads as follows:
“1. The Russian Federation shall admit, upon application by a Member State and in accordance with the procedure provided for in this Agreement, any person who does not, or no longer, fulfil the conditions in force for entry to, presence in, or residence on the territory of the requesting Member State provided it is established, in accordance with Article 9 of this Agreement, that such person is a national of the Russian Federation.
The same shall apply to illegally present or residing persons who possessed the nationality of the Russian Federation at the time of entering the territory of a Member State but subsequently renounced the nationality of the Russian Federation in accordance with the national laws of the latter, without acquiring the nationality or a residence authorisation of that Member State or any other State.
2. After the Russian Federation has given a positive reply to the readmission application, the competent diplomatic mission or consular office of the Russian Federation shall irrespective of the will of the person to be readmitted, as necessary and without delay, issue a travel document required for the return of the person to be readmitted with a period of validity of 30 calendar days. If, for any reason, the person concerned cannot be transferred within the period of validity of that travel document, the competent diplomatic mission or consular office of the Russian Federation shall issue a new travel document with a period of validity of the same duration without delay.”
39. In a judgment of 13 November 2006, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-45-06) found that the assessment of the feasibility of expulsion could not be based on the fact that the person concerned did not wish to leave the country and wanted to stay there. An interpretation to the contrary would have been in conflict with the nature of expulsion as a legal concept.
40. In a judgment of 3 April 2008, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-96-07) noted that both the Board’s request and the court’s authorisation for detention had to be based on the law in force at the time of the court proceedings. It pointed out, however, that since expulsion proceedings constituted a dynamic process, due attention had to be given to the prospective changes in legal circumstances which would affect expulsion at the time when the person concerned was expected to be expelled.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-113629
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: S.R. v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Ms S.R., is a Netherlands national who was born in 1952 and lives in Rotterdam. She was represented before the Court by Mr J. van Broekhuijze, a lawyer practising in Ridderkerk. The respondent Government were represented by their Deputy Agent, Ms L. Egmond, of the Ministry for Foreign Affairs.
2. On 31 July 2006 the public prosecutor (officier van justitie) submitted a request to the Regional Court (rechtbank) of Rotterdam for a provisional court authorisation (voorlopige machtiging: hereafter “provisional order”) to have the applicant committed to a psychiatric hospital pursuant to the Psychiatric Hospitals (Compulsory Admissions) Act (Wet bijzondere opnemingen in psychiatrische ziekenhuizen; “the Act”). The prosecutor’s request was based on a medical report issued by a psychiatrist who was not involved in the treatment of the applicant.
3. On 17 August 2006 the Regional Court held a hearing in the presence of the applicant, her counsel, two social-psychiatric nurses, a priest and a sister of the applicant. The Regional Court heard the applicant’s general practitioner and the applicant’s own psychiatrist.
4. It adjourned the proceedings in order to enable the prosecutor to request authorisation for the applicant to be committed to a psychiatric hospital for observation (observatiemachtiging; hereafter “observation order”) instead (section 14h of the Act, see below).
5. On 25 August 2006 the public prosecutor lodged a request for an observation order with the Regional Court. The request was accompanied by a new medical report dated 24 August 2006.
6. On 28 August 2006 the Regional Court rejected the request for the provisional order and instead issued an observation order valid until 18 September 2006. In respect of the latter, it held as follows:
“From the medical report and the clarification provided during the hearing by the physician treating the person concerned it appears that the situation is as follows:
The person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia.
There are serious reasons for believing that a disturbance of the mental faculties of the person concerned will lead her to pose the following danger to herself:
The person concerned is, probably as a result of her paranoid delusion, very suspicious of her neighbours. The person concerned is said to cause noise disturbance at night. There is a danger that, through her bothersome behaviour, the person concerned will provoke aggression of others against herself.
The committal to and stay in a psychiatric hospital of the person concerned is intended for examination whether she is suffering from a disturbance of the mental faculties and whether that disturbance will lead her to pose a danger to herself.
The danger cannot be averted through the intervention of persons or institutions outside a psychiatric hospital. The person concerned has not shown the necessary willingness to stay in a psychiatric hospital voluntarily.”
7. On 30 August 2006 the applicant was admitted to a psychiatric hospital.
8. On the same day she lodged an appeal on points of law (cassatie) with the Supreme Court against the issuing of the observation order. She submitted grounds of appeal including, as relevant to the case before the Court, that in breach of section 8(1) of the Act she had not been heard by the Regional Court before the observation order was issued and that, by providing that persons could be committed in order to determine whether they were of unsound mind, section 14 sub h of the Act violated Article 5 § 1 (e) of the Convention, which allowed the detention of persons of unsound mind only after they had been determined actually to be of unsound mind.
9. In parallel, the applicant started summary injunction proceedings (kort geding) before the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of Rotterdam, seeking the immediate suspension of her committal. On 12 September 2006 the Provisional Measures Judge gave judgment dismissing the applicant’s claims. The reasoning included the finding that the hearing of 17 August 2006 had been focused on the deprivation of liberty and that the applicant had been informed of the likelihood that an observation order would be given; a statement made by the applicant’s representative to the effect that the judge had informed him by telephone that another hearing would take place was dismissed as unproven.
10. The applicant remained in hospital until 21 September 2006.
11. On 15 December 2006 the Supreme Court declared the applicant’s appeal inadmissible for lack of interest as the order in issue had already lapsed in the meantime. However, in view of the relevance of the legal questions raised by the grounds for the appeal, the Supreme Court nonetheless addressed the merits of a number of her grounds of appeal.
12. Its reasoning, obiter dictum, was as follows:
“4.1. The Supreme Court nonetheless considers it useful, in view of the importance of the legal questions arising from the points of appeal, to consider the following.
4.2. The observation order given by the Regional Court in pursuance of section 14 of the Psychiatric Hospitals (Compulsory Admission) Act is grounded on the Regional Court’s assessment of the state of the person concerned, which is in the following terms:
[etc., see paragraph 6 above]
4.3. Point of appeal no. 9 argues that section 14h(1) of the Psychiatric Hospitals (Compulsory Admission) Act is incompatible with Article 5 § 1 (e) of the Convention, because that provision only allows the detention of persons actually of unsound mind, whereas section 14(1) of the Psychiatric Hospitals (Compulsory Admission) Act provides for compulsory admission to determine whether there is an impairment of the mental faculties.
4.4. On this point, the Supreme Court takes the following view. It follows from the case-law of the European Court of Human Rights cited in ... the advisory opinion of the Advocate General that it is, in principle, permissible to deprive persons of unsound mind of their liberty if it has been reliably shown (op deugdelijke wijze is aangetoond) that the person concerned is of unsound mind. Nevertheless, the Court has considered it acceptable that a person may briefly be detained in a psychiatric hospital involuntarily so that it can be determined whether he or she is suffering from a mental illness, but only in urgent cases or when the person concerned is detained in connection with his or her violent behaviour, the examination then having to take place immediately after the deprivation of liberty. In all other cases, an examination into the mental state must precede any deprivation of liberty. If however such an examination proves impossible because the person concerned refuses to submit to examination, review by a medical expert on the basis of the file may suffice, in the absence of which it cannot be assumed that the person concerned is mentally ill.
4.5. An observation order within the meaning of section 14h of the Psychiatric Hospitals (Compulsory Admission) Act is intended, according to the second paragraph of that provision, to determine whether there is a disturbance of the mental factulties and whether the disturbance causes the person concerned to pose a danger to him or herself. The order can be given if, as section 14h(1) provides, there is serious reason to believe (het ernstig vermoeden bestaat) that he or she is suffering from a disturbance of his or her mental faculties (stoornis van de geestvermogens) which could lead him or her to pose a danger to him- or herself. Section 14h(4) provides that the application for an observation order must be accompanied by a medical report as referred to in that provision, from which it appears that there is a case as referred to in section 14h(1). Taking this into account, the Supreme Court considers it acceptable under Article 5 of the Convention to give an observation order only if on the basis of the medical report submitted it can be assumed, with sufficient certainty, that the person concerned is suffering from a disturbance of the mental faculties requiring further examination within the framework of the observation and there is serious reason to believe that that disturbance causes him or her to pose a danger to him or herself. To that extent, it is correctly argued that section 14h, in setting the condition that there is serious reason to believe that the mental disturbance should lead the person concerned to pose a danger to him- or herself, gives a wider description of the cases in which an observation order can be granted than is compatible with Article 5 of the Convention.
4.6. Nonetheless, and even assuming that the appeal on points of law were admissible, the point of appeal would not have led the Supreme Court to quash the Regional Court’s judgment. The Regional Court has in fact found, on the basis of the medical report submitted, that the person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia and that there is serious reason to believe that the person concerned, as a result of this disturbance of her mental faculties, displays noisome behaviour and thereby provokes the aggression of others against herself. In so finding, the Regional Court has not applied section 14h of the Psychiatric Hospitals (Compulsory Admission) Act in a way that is incompatible with Article 5 of the Convention.
4.7. Points of appeal 8 and 12 ... complain that the Regional Court acted contrary to section 8(1) of the Psychiatric Hospitals (Compulsory Admission) Act by deciding without hearing the person concerned and on the basis, additionally, of a new medical report which the person concerned has not been able to challenge. The Regional Court has heard the person concerned on 17 August 2006, it is true, but that concerned the public prosecutor’s application ... of 31 July 2006 for a povisional order within the meaning of section 2 of the Psychiatric Hospitals (Compulsory Admission) Act. It appears that the Regional Court then applied section 8a of the Psychiatric Hospitals (Compulsory Admission) Act, after which the public prosecutor lodged the application for an observation order which the Regional Court accepted in its decision of 28 August 2006, which later application, according to the documents contained in the case file, was accompanied by a new medical report dated 24 August 2006. The Psychiatric Hospitals (Compulsory Admission) Act does not allow a person concerned to be heard in advance, nor that a person concerned should waive in advance his or her right to be heard on an application for an order based on the Psychiatric Hospitals (Compulsory Admission) Act that has yet to be submitted.”
13. The applicant has submitted a letter from the medical director for compulsory admissions (geneesheer-directeur BOPZ), dated 31 August 2006, which is in the following terms:
“Further to your letter ... received on 31 August 2006, we herewith confirm in writing our telephone conversation of this afternoon concerning the observation order for Ms S.R.
We do not subscribe to the ground you rely on to argue that the effect of the decision to give an observation order is suspended. We will therefore not comply with your request to release Ms S.R. from our hospital.
...
We have a valid judicial decision for an observation order for Ms S.R. Section 14h(4) taken together with section 10(1) of the Psychiatric Hospitals (Compulsory Admissions) Act provides that the court’s decision is immediately enforceable (bij voorraad uitvoerbaar). Section 14h(4) taken together with section 9(5) of the Psychiatric Hospitals (Compulsory Admissions) Act provides that no appeal on the merits (hoger beroep) lies against the decision. It is however possible to lodge an appeal on points of law with the Supreme Court. ...”
14. The applicant states that she requested the public prosecutor to seek a decision of the court in the matter, but that the public prosecutor refused.
15. The applicant has submitted a letter from a psychiatrist, dated 23 March 2007, on the letterhead stationery of the psychiatric hospital. It reads as follows:
“The patient was in our care from 30 August 2006 until 21 September 2006.
Psychiatric history:
2004-05: The Regional Institute for Out-Patient Mental Health Treatment (Regionaal Instituut voor Ambulante Geestelijke Gezondheidszorg; “RIAGG”) tried to develop a therapeutic relationship with the patient because of persistent complaints from several neighbours about noise.
2006: EMC Out-Patient Clinic. Conclusion: A 54-year-old woman who has serious problems with her neighbours, two conflicting stories exist. It is not possible to reach a diagnosis on the information available.
Anamnesis and progress:
The patient is very loquacious and towards the end of discussions gets bogged down in a story line that cannot any longer be followed. The content of the discussions concerns all the injustice that has been done to her over the last few years by her RIAGG carer and the neighbours. She also alleges that injustice is done to her by an institutional landlord from whom she rents her second home. None of this can be verified. In other words, it is difficult to assess whether her allegations or ‘innocent remarks’ are within the bounds of what is normal or paranoid delusions (paranoïde wanen).
Psychiatric examination:
Well-groomed, is busy at the table in the lounge making some loose notes. She is lucid, her recognition of persons and orientation in time and place are intact. Her perceptive faculties appear unimpaired but the patient will not discuss perception at any length. Her thinking is very diffuse and for a short period incoherent. Her mood is normal with a somewhat pronounced, not always quite adequate, modulating effect.
Provisional conclusion:
As far as can be established on the basis of the observation [emendation by the Court], neither the observation of the patient’s behaviour nor repeated psychiatric examination have provided clear indications of psychosis. Mild psychotic symptoms can however be dissembled.
Classification according to DSM-IV:
Axis I: Diagnosis deferred
Axis II: Diagnosis deferred.”
16. At the time of the events complained of, the Psychiatric Hospitals (Compulsory Admissions) Act, in its relevant parts, provided as follows:
“1. The court may, on the application of the public prosecutor, issue provisional authorisation for committal of a person whose mental faculties are disturbed to be admitted and kept in a psychiatric hospital. ...”
“1. Before taking a decision on the application for provisional authorisation the court shall hear the person in respect of whom the authorisation is sought, unless it finds that the person concerned is not willing to be heard. ...”
“If on the basis of its examination the Regional Court has doubts as to whether in the given circumstances a measure other than that requested might not be more suitable, it may communicate these doubts to the public prosecutor; if necessary the Regional Court shall indicate at the same time that its consideration of the case will be continued at a later time.”
“...
5. No appeal on the merits shall lie against the decision to grant provisional authorisation. ...”
“1. The decision of the court shall be immediately enforceable. ...”
“1. The court may, on the application of the public prosecutor, issue an authorisation for committal for observation to have the person concerned admitted and kept in a psychiatric hospital if there is serious reason to believe (het ernstig vermoeden bestaat) that he or she is suffering from a disturbance of his or her mental faculties (stoornis van de geestvermogens) which could lead him or her to pose a danger to him- or herself.
2. An authorisation for committal for observation shall serve to examine whether:
a. a disturbance of the mental faculties exists; and
b. such disturbance leads the person concerned to pose a danger to him- or herself.
3. The authorisation for committal for observation shall be valid for no more than three weeks after the day on which the person concerned is admitted to a psychiatric hospital, without prejudice to [section ... 49].
4. Sections ... 9(1), first sentence, 9(2)-(5), [and] 10(1)-(3) ... shall apply by analogy, it being understood that it must appear from the medical report ... that the situation is one as referred to in the first paragraph.”
“1. If the person in relation to whom the public prosecutor had submitted a request for an order as referred to in this chapter [including, at the time, section 14h], or for a decision ordering release ..., has suffered damage as a result of the failure of the court or the public prosecutor to observe one of the provisions in this chapter [which includes the above provisions] ..., the court shall, at the request of the person concerned, award him or her damages to be determined in equity at the State’s expense.”
“1. A patient held in a psychiatric hospital in the application of chapter II, §§ 1 through 4 [i.e. including sections 8, 9, 10 and 14h of this Act] ... can ask the medical director of the psychiatric hospital for the conditional release or release of the patient from the hospital.
...
3. In case of a refusal, the person who has received the decision ... may request the public prosecutor to seek the decision of the court. The request shall be in writing; a copy of the original request and the decision of the medical director shall be appended. ...”
17. A sunset clause was linked to section 14h, providing for an evaluation of the measure as of 1 January 2008, after which it would lapse automatically on 31 December 2008 unless extended by order in council (algemene maatregel van bestuur). The Government having elected not to extend it, it lapsed automatically on 31 December 2008.
18. Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder, in its relevant part, reads as follows:
“1. A person may be subject to involuntary placement only if all the following conditions are met:
i. the person has a mental disorder;
ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons;
iii. the placement includes a therapeutic purpose;
iv. no less restrictive means of providing appropriate care are available;
v. the opinion of the person concerned has been taken into consideration.
2. The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if:
i. his or her behaviour is strongly suggestive of such a disorder;
ii. his or her condition appears to represent such a risk;
iii. there is no appropriate, less restrictive means of making this determination; and
iv. the opinion of the person concerned has been taken into consideration.”