CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 novembre 2009

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margin-bottom:24pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s7D9000BB { width:17.92pt; display:inline-block } .s908347EA { width:175.61pt; display:inline-block } .s576DFC5F { width:15.93pt; display:inline-block } .sAA5C5B93 { width:187.63pt; display:inline-block }       FIFTH SECTION             CASE OF KABOULOV v. UKRAINE   (Application no. 41015/04)                 JUDGMENT     STRASBOURG   19 November 2009   FINAL   10/05/2010   This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Kaboulov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Peer Lorenzen, President,   Karel Jungwiert,   Rait Maruste,   Mark Villiger,   Isabelle Berro-Lefèvre,   Zdravka Kalaydjieva, judges,   Mykhaylo Buromenskiy, ad hoc judge, and Stephen Phillips, Deputy Section Registrar , Having deliberated in private on 20 October 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 41015/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr   Amir Damirovich Kaboulov (“the applicant”), on 22   November 2004. 2.     The applicant, who had been granted legal aid, was represented by Mr   A.P. Bushchenko, succeeded by Mr   S.Y.   Stavrov, both lawyers practicing in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr   Y.   Zaytsev, of the Ministry of Justice. 3.     On 23 November 2004 the President of the Second Section indicated to the respondent Government that the applicant should not be extradited to Kazakhstan until further notice (Rule   39 of the Rules of Court). He granted priority to the application on the same date (Rule 41 of the Rules of Court). 4.     On 28 April 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. Further to the applicant's request, the Court granted priority to the application (Rule 41 of the Rules of Court). 5.     The applicant complained under Article 2 of the Convention that there was a real risk that he would be liable to capital punishment in the event of his extradition to Kazakhstan. He submitted that he would be subjected to treatment contrary to Article 3 of the Convention, on account of the possible application of the death penalty and the poor conditions of detention in Kazakhstan, the lack of proper medical treatment and assistance in detention facilities and the widespread practice of torture of detainees. He further alleged, under Articles 5 §§ 1 (c) and (f), 2, 3 and 4, that his initial detention on 23 August 2004 and the decision to extradite him taken by the General Prosecution Service were unlawful. He also raised complaints under Article   13 of the Convention, stating that there had been no effective remedies for his complaints about his extradition in violation of Articles   2   and 3 of the Convention. The applicant also complained that he would be exposed to unfair trial, if extradited to Kazakhstan, contrary to Article 6 § 1 of the Convention. He further claimed that there was a breach of Article 34 of the Convention. 6.     On 1 April 2006 this case was assigned to the newly composed Fifth Section (Rule 25 § 1 and Rule 52 § 1 of the Rules of Court). 7.     On 17 January 2007 the Court decided to put additional questions to the respondent Government concerning the application. It also decided that the interim measure, indicated under Rule 39 of the Rules of Court, should be maintained. 8.     On 3 September 2008 the applicant submitted to the Court a letter in which he requested the Court to strike the application out of the list of cases as he wanted to be extradited to Kazakhstan. The letter was sent with a covering letter signed by the SIZO Governor on the same date, stating that it concerned the applicant's request to withdraw his application from examination by the Court. His mother and the advocate later stated that this request by the applicant was given under pressure from the domestic authorities and the Governor of Kharkiv SIZO no. 27. On 6 November 2008 the applicant informed his advocate, Mr Bushchenko, that he wished to pursue his application and asked him to request the Court to expedite examination of his case. He also stated that the SIZO Governor and officials of the State Department for Enforcement of Sentences had put pressure on him to withdraw his application. On 14   November 2008 the General Prosecutor's Office of Ukraine, which questioned the applicant on behalf of the Agent of the Government, informed the Government's Agent that the applicant had written the letter of 3   September 2008 due to his continuous stay in detention and lack of a judgment from the European Court. The General Prosecutor's Office stated that the applicant, after consulting his advocate on 6 November 2008, wished to pursue examination of his case before the Court. They further stated that the applicant had no complaints about the administration of the SIZO. 9.     Written submissions were received from the Helsinki Foundation for Human Rights in Warsaw, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule   44   §   2). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Background to the case 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). B.     The applicant's detention and main proceedings related to the lawfulness of the applicant's extradition 1.     The applicant's initial detention from 23 August to 13   September   2004 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. 2.     Main proceedings related to the lawfulness of the applicant's detention pending extradition 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. C.     Various judicial proceedings against the decisions to detain the applicant and to extradite him 1.     Proceedings relating to the lawfulness of the applicant's detention in SIZO no. 27 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. 2.     Proceedings against GPO of Ukraine relating to the lawfulness of the applicant's detention 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 first ‑ instance 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. 3.     Proceedings relating to the lawfulness of the applicant's detention in SIZO no. 27 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. II.     RELEVANT LAW AND PRACTICE A.     Relevant Ukrainian domestic law and practice 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). B.     Other domestic normative acts in force at the material time 1.     Constitution of Ukraine, 28 June 1996 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.” 2.     CIS Convention on legal assistance of 22 January 1993 (with amendments dated 1998) 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: Article 60 Detention pending extradition “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.” Article 80 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.” 2.     Militia Act of 20 December 1990 (as in force at the material time) 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. 3.     Regulation no. 4203-IX of 13   July 1976 “On the temporary detention of persons suspected of having committed a criminal offence” (enacted by Decree of the Presidium of the Verkhovny Soviet of the USSR and still in force in Ukraine) 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 law ‑ enforcement 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. C.     International human rights reports on Kazakhstan 1.     Kazakhstan: Amnesty International Briefing to the UN Committee Against Torture (November 2008) 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.” 2.     Report of the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, Leandro Despouy (Addendum “Civil and Political Rights, including the questions of independence of the judiciary, administration of justice, impunity”), at Sixty-first session Item 11(d) of the provisional agenda, 11 January 2005 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.” 3.     The International Helsinki Federation for Human Rights Report of 11   September   2006 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. ...” 4.     International Service for Human Rights Report on Kazakhstan (discussed at the 26th session of the Committee against Torture in Geneva, 30 April to 18 May 2001) 71.     The relevant extracts from the Report of the Committee against Torture read as follows: Kazakhstan (initial report) “... 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 ...” 5.     Analysis of the legal framework for the death penalty in Kazakhstan by OSCE/ODIHR 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-Ge