CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 mars 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s882EC701 { margin-top:12pt; margin-left:21.3pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3561545 { font-family:Arial; font-weight:bold; color:#333333 } .s6B505E72 { margin:0pt; padding-left:0pt } .sBBB64387 { text-indent:14.2pt; text-align:justify; font-family:Arial; list-style-position:inside } .sA284A115 { width:11.79pt; text-indent:0pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sD57707C0 { width:180.63pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 51243/08 by Dmitriy Petrovich PUZAN against Ukraine The European Court of Human Rights (Fifth Section), sitting on 24   March 2009 as a Chamber composed of:   Rait Maruste, President,   Karel Jungwiert,   Renate Jaeger,   Mark Villiger,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva, judges,   Stanislav Shevchuk, ad hoc judge, and Claudia Westerdiek, Section Registrar , Having regard to the above application lodged on 27 October 2008, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having deliberated, decides as follows: THE FACTS The applicant, Mr Dmitriy Petrovich Puzan, is a Belarusian national who was born in 1980 and is currently detained in Simferopol pre-trial detention centre (the “Simferopol SIZO”) awaiting his extradition to Belarus. He is represented before the Court by Ms A.   Mukanova, a lawyer practising in Kharkiv. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 1 April 2006 the Sovetskyy District Police Department of Minsk instituted criminal proceedings against the applicant on suspicion that he had illegally purchased a psychotropic agent (Section 328 § 1 of the Belarus Criminal Code). On 12 June 2006 the Belarus authorities issued an international search warrant for the applicant. On 29 September 2008 the Head of the Sovetskyy District Police Department of Minsk sent a request to the Crimea Police Department for the applicant to be arrested and detained pending extradition to Belarus. On the same day the applicant was arrested by the officers of the Zheleznodorozhnyy District Police Department of Simferopol. On 30 September 2008 Zheleznodorozhnyy District Court of Simferopol (the “District Court”) ordered the applicant’s detention for forty days pending his extradition to Belarus. On 6 October 2008 the applicant was placed in the Simferopol SIZO. On 17 October 2008 the Deputy General Prosecutor of Belarus requested the General Prosecutor’s Office of Ukraine to extradite the applicant to Belarus. The request contained the following assurances: - the applicant would not be prosecuted for the crime committed before the extradition without the consent of the General Prosecutor’s Office of Ukraine; - he would not be removed to a third country without the consent of the General Prosecutor’s Office of Ukraine; - he would not be subjected to torture, inhuman or degrading treatment or punishment; - after the termination of the criminal proceedings or after serving his sentence, if one was imposed, the applicant would be free to leave Belarus; - the request for extradition did not intend to prosecute the applicant for political, racial, religious or ethnic reasons. On 26 October 2008, during a meeting with his lawyer, the applicant signed a power of attorney for the purpose of bringing his case to the Court. On an unspecified date the applicant was questioned by the assistant prosecutor of the Zheleznodorozhnyy Prosecutor’s Office as to whether he had made any claims or complaints to the State authorities or other institutions on account of alleged violation of his rights and freedoms. The applicant replied that he had made no such claims personally and added that the only document he had signed was the power of attorney of 26 October 2008. On 7 November 2008 the District Court ordered the applicant to be detained pending his extradition to Belarus, without indicating any time-limit for such detention. On 20 November the Crimea Court of Appeal upheld the decision of 7   November 2008, stating that the applicant had been lawfully detained pending his extradition. On 26 December 2008 the District Court rejected the request by the applicant’s lawyer for changing the preventive measure in respect of the applicant. Conditions of detention in the Simferopol SIZO According to the applicant the conditions of his detention have been unsatisfactory for the whole period of his detention in the Simferopol SIZO. The first two weeks the applicant was held in a cell measuring around 12   sq. m together with 15 other detainees. The cell was equipped with only nine bunks; there was not sufficient daylight. Further, he was transferred to a cell measuring around 20 sq. m in which he has been held together with 15 other detainees. The applicant is still being held in that cell. The cell is equipped with 14 bunks; there is only one window, which has metal bars preventing the access of daylight. The window is always open to ventilate the cell; as a result the temperature in the cell is quite low when the whether is cold outside. The applicant is provided with 40 minutes of exercise daily; the nutrition is insufficient.   B.     Relevant international and domestic law The relevant international and domestic law are summarised in the judgment in the case of Soldatenko v. Ukraine , no. 2440/07, §§   21-31, 23   October 2008. C. Relevant international material concerning the human rights situation in Belarus 1.     Report of the Special Rapporteur on the situation of human rights in Belarus (E/CN.4/2006/36) In 2004 the UN Commission on Human Rights requested the Special Rapporteur to establish direct contacts with the Government and with the people of Belarus, with a view to examining the situation of human rights in this country. In his report, the Special Rapporteur noted that “the Government of Belarus has not cooperated in the fulfilment of his mandate, despite numerous attempts made to engage in a constructive dialogue.” Therefore, the report was based “on the findings of the Special Rapporteur’s missions to Estonia, Latvia, Lithuania and Poland, consultations held in Geneva, Strasbourg and Brussels, and on media reports and documentary sources.” The relevant parts of the report read as follows (emphasis added by the Special Rapporteur): “... The Special Rapporteur expresses increased concern at the steady deterioration of the situation of human rights in 2005, and urges the Government of Belarus to put an end to the ongoing human rights violations described in the present report and to bring their perpetrators to justice ... A. Civil and political rights; mechanisms of protection 19. The present situation in the Republic of Belarus is characterized by the systematic violation of civil and political rights and the deprivation of Belarusian citizens of their right to effectively take part in the conduct of public affairs, and by the extreme weakness of human rights protection mechanisms. The judicial system is submitted to the executive power, there is no really independent legislative power, and no national human rights institution. Administration of justice and law enforcement, death penalty, disappearances and summary executions 20. In 2004, the Working Group on Arbitrary Detention visited Belarus. In its report (E/CN.4/2005/6/Add.3), it noted the evident imbalance between the powers of the prosecution and the rights of the defence, in breach of international standards. This situation is of extreme concern since Belarus is the last country in Europe to apply the death penalty. A system which deprives accused persons of their right to defence can lead more easily to judicial errors. Such imbalance is embodied further by the abusive nature of the detention system. Physical conditions of pretrial detention are harsh. Detainees are often put under strong psychological pressure. The presumption of innocence is seriously undermined. 21. The regime of pretrial detention for minors is the same as for adults, which has worse consequences for them than for adults on account of their vulnerability. The situation of persons detained in facilities under the control of the KGB and the lack of oversight in cases of placement in psychiatric hospitals of persons under investigation are also issues of serious concern. Administrative detention is used against persons peacefully exercising their right to assembly, demonstration and freedom of expression, opinion or dissemination of information. The Code of Administrative Offences is used to repress demonstrators or political opponents. 22. The situation has worsened in 2005. In addition to the presidential powers of amnesty and to appoint and dismiss judges (art. 84 of the Constitution), Presidential Order No. 426 of 12 September 2005 gave President Lukashenka the right to release from any criminal liability, without trial, persons responsible for crimes inflicting an essential damage to State property or public interests. 23. The personalization and selectivity of the justice administration in Belarus is evidenced further by the fact that to date, the Government failed to elucidate the involvement of senior government officials in the disappearances of Yury Zakharanka, Viktar Hanchar, Anatol Krasouski and Dzmitry Zavadzki, and the murders of journalists Veranika Charkasova and Vasil Hrodnikau. On the other hand, Mikhail Marynich, a former Minister of the Republic of Belarus, whose detention since 2004 was declared arbitrary by the Working Group on Arbitrary Detention in Opinion No. 37/2005 of 2 September 2005, remains in prison. On 10 March, deprived of medical assistance, he suffered a stroke. The Special Rapporteur considers that this amounts to inhuman treatment. 24. On 8 April, the Human Rights Centre “Viasna” and FIDH issued a report which concluded that numerous acts of torture and other inhuman treatment were currently practised in the Republic of Belarus, and that prosecution bodies and other State organs failed to adequately respond to acts of torture and refused to initiate criminal proceedings. Consequently, the Republic of Belarus did not meet the requirements of article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The report invited the Special Rapporteur on Torture to visit Belarus, which could not happen to date. 25. Excessive use of force by police services was used to repress freedom of demonstration. On 7 July, during a demonstration on disappearances in Minsk, a police agent punched Sviatlana Zavadzkaya, the wife of the disappeared Dzmitry Zavadzki. On 16 September, an activist of the Zubr movement, Mikita Sasim, was severely beaten in Minsk during the “We Remember” action devoted to the sixth anniversary of the disappearance of Viktar Hanchar and Anatol Krasouski. Six other activists were also beaten that day. 26. Ill-treatment continues in prisons. The Human Rights Centre “Viasna” denounced the situation of prisoners in Mazyr colony, where torture and beatings were said to be common. However, abuses reportedly take place in most Belarusian prisons and their authors enjoy substantial impunity. ... IV. CONCLUSIONS AND RECOMMENDATIONS 78. In the accomplishment of his mission, the Special Rapporteur has encountered for the second consecutive year an absolute refusal to cooperate by the Government of Belarus. All efforts made to engage in constructive dialogue were fruitless. The Special Rapporteur has consistently informed the Government of Belarus of all his findings based on information received from different sources, requested their official assessment, and made it clear that silence would be interpreted as a confirmation of their accuracy. The absence of any reaction implies that the Government of Belarus accepts the facts contained in this report. 79. On the other hand, the Belarusian political opposition and civil society cooperated actively with the Special Rapporteur. While there is no evidence to prove that persons who cooperated were persecuted for this reason, it appears that the Government of Belarus intends to obstruct such cooperation in the future, as demonstrated by the introduction, in the Criminal Code, of a new article on “Discrediting the Republic of Belarus” by submitting to international organizations “false information” on the situation in the country. 80. The decision of the Commission on Human Rights to establish a special procedure to monitor the situation of human rights in Belarus must be accepted and enforced by all States members of the United Nations. The systematic obstruction of United Nations special procedures in the fulfilment of their mandates violates the obligations the Republic of Belarus has accepted as a Member State of the United Nations. The present report demonstrates that Belarus also does not respect the obligations it has taken on under the international human rights instruments to which it has adhered to. Therefore, based on chapter II of the Charter, the Special Rapporteur recommends that the Security Council adopt appropriate measures to ensure the respect by the Republic of Belarus of its legal obligations. 81. The conclusions reached by the Special Rapporteur in his first report (E/CN.4/2005/35) were fully confirmed during the second term of his mandate. Therefore, the conclusions and recommendations contained in that report continue to be valid and should be considered an integral part of the present report. 82. The Government of Belarus did not consider any of the recommendations made by the Special Rapporteur. It also ignored the recommendations made by other special procedures, such as the Working Group on Arbitrary Detention (see E/CN.4/2005/6/Add.3) or by treaty bodies, such as the Human Rights Committee. In fact, the political system of Belarus is incompatible with the concept of human rights as enshrined in the Charter and in the international human rights instruments to which Belarus remains a party. ... The situation is characterized by the rejection of pluralism in all sectors of society, the refusal of dialogue, the lack of inter-institutional checks and balances, the denial of civil rights and repression of political freedoms, and the persecution of intellectuals, opponents, independent journalists and human rights defenders by the State. The judiciary, like law enforcement and security agencies, is utilized as an instrument of political repression. ... 88. The regime suppressed or put under its control every independent civil or economic initiative. It is reported that the President disposes personally of a shadow budget larger than the State budget. This budget, free from any civic or political oversight (as are its sources of funding), is utilized as a tool to “purchase” clients and to allow the regime to “bribe” the Belarusian society. The regime tries to keep people silent by satisfying their basic existential needs from extra-economic resources. ... 92. Therefore, if one year ago President Lukashenka’s regime appeared as an authoritarian regime but not yet a dictatorship, it is the general conclusion of the Special Rapporteur that Belarus is now turning rapidly into a real dictatorship, with clear totalitarian inclinations. ” 2. UN General Assembly, Situation of human rights in Belarus : resolution / adopted by the General Assembly, 20 March 2008.   A/RES/62/169 The relevant extracts of the Resolution read as follows: “The General Assembly ... expresses deep concern ... (b) About the failure of the Government of Belarus to cooperate fully with all the mechanisms of the Human Rights Council, in particular with the Special Rapporteurs on the situation of human rights in Belarus, while noting the serious concern relating to the continued and systematic violations of human rights in Belarus and the further erosion of the democratic process expressed by seven independent human rights experts of the United Nations in a statement issued on 29 March 2006; ... “ COMPLAINTS The applicant complains under Article 3 of the Convention that if extradited he would face the risk of being subjected to torture and inhuman or degrading treatment by the Belarus authorities. The applicant complains under the same provision of the Convention about the conditions of his detention in the Simferopol SIZO alleging that the cells, where he has been held, are cold, dim, and overcrowded; the nutrition and daily exercises are insufficient. Relying on Article 5   §§   1 (f) and 4 of the Convention the applicant complains that he has been unlawfully detained by the Ukrainian authorities and that he has not been provided with effective judicial review of the lawfulness of his detention. The applicant further complains that his extradition to Belarus would be in violation of Article 6   §   1 of the Convention in so far as he would be flagrantly denied a fair trial in his criminal case by the Belarus authorities. Relying on Article   13 of the Convention the applicant complains that he has not been provided with an effective remedy to challenge his extradition to Belarus. The applicant lastly complains of violation of Articles 8 and 34 of the Convention, alleging that that his correspondence has been monitored by the Simferopol SIZO officials and that he was questioned by the assistant prosecutor in order to hinder his application to the Court. THE LAW 1.   The applicant complains that if extradited he would face the risk of being subjected to ill-treatment and flagrant denial of justice by the Belarus authorities. He relies on Articles 3 and 6   §   1 of the Convention which provide in so far as relevant as follows: Article 3 (prohibition of torture) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 6 (right to a fair hearing) “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government. For the same reason the Court finds it appropriate to uphold the application of Rules 39 and 41 of the Rules of the Court until further notice.   2.   The applicant complains that he was and is unlawfully detained by the Ukrainian authorities and that he has not been provided with effective judicial review of the lawfulness of his detention. He relies on Article 5   §§   1   (f) and 4 of the Convention which reads in so far as relevant as follows: Article 5 (right to liberty and security) “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. ... 4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.   3.   The applicant complains that he has not been provided with an effective remedy to challenge his extradition to Belarus. He relies on Article   13 of the Convention which provides as follows: Article 13 (right to an effective remedy) “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.   4.     The applicant complains that he was questioned by the assistant prosecutor in order to hinder his application to the Court. He relies on Article   34 of the Convention which provides as follows: Article 34 (individual applications) “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.   5.     Relying on Article 3 of the Convention, the applicant complains that the conditions of his detention in the Simferopol SIZO are unsatisfactory, alleging that the cells, where he has been held, are cold, dim and overcrowded; the nutrition and daily exercises are insufficient. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v.   France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V). Applying the above principles with respect to the complaints under Article   3 of the Convention about the conditions of detention, the Court has held that such complaints, as any others, should be ventilated through the competent domestic authorities. After the authorities have been given a reasonable opportunity to comment on these complaints, the Court would be able to examine the applicant’s contention about the ineffectiveness of such remedies. Otherwise, in the absence of comments by the competent authorities, the Court would be unable to reach any conclusion as to the applicant’s compliance with the requirement of exhaustion of domestic remedies (see, mutatis mutandis, Aliev v Ukraine (II) (dec.), no. 33617/02, 14   October 2008, and Vinokurov v. Russia and Ukraine (dec.), no.   2937/04, 16   October 2007). The Court notes that the case file does not suggest that the applicant raised these issues before any domestic authority. It is noteworthy that when visited by the assistant prosecutor the applicant did not make any such complaints to him and stated that he had not made any claims to the other domestic authorities. The Court finds, therefore, that the applicant’s complaints concerning the conditions of his detention must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.   6.     The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously Adjourns the examination of the applicant’s complaints related to his detention and possible extradition under Articles 3,   5   §§   1 (f) and 4, 6   §   1, 13 of the Convention and the complaint concerning hindrance of the applicant’s right of individual petition under Article   34 of the Convention; Declares the remainder of the application inadmissible. Claudia Westerdiek   Rait Maruste   Registrar   President