CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 juin 2011

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He was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yu. Zaytsev, from the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a businessman and a political opposition supporter in Belarus, who participated in protest rallies following the constitutional referendum in 2004 and the presidential elections in March 2006 (and was briefly arrested and allegedly beaten up by the police after the last-mentioned event), provided financial support to one of the opposition parties, and initiated some entrepreneurs’ protest actions at a local level. From March 2006 onwards he and his wife allegedly received anonymous threats. In 2007 the financial police allegedly demanded from the applicant a bribe of 50,000 United States dollars (USD) not to institute criminal proceedings against him, about which he complained to the State Security Committee. The threats against him allegedly became more serious thereafter. In December 2008 the applicant left Belarus for an unspecified country. Since March 2009 he has been living in Ukraine. In June 2009 the applicant was charged in absentia in Belarus with illegal entrepreneurial activities (a criminal offence). On 3 June 2009 the Minsk Regional Prosecutor’s Office decided to remand him in custody and on the following day the applicant was declared wanted by the police. On 9 June 2009 he applied to the Ukrainian Migration Service for refugee status. On 24 June 2009 he was notified that his application had been rejected and appealed. On 15 July 2009 the State Committee of Nationalities and Religions of the Migration Service sent a letter to the Citizenship, Immigration and Individuals’ Registration Department in the Dnipropetrovsk region instructing it to register the applicant at the address indicated in Dnipropetrovsk pending the examination of his appeal till 14 August 2009. The outcome of the appeal proceedings is unknown. On 15 July 2009 the applicant was additionally charged in Belarus with the creation and management of a criminal organisation and tax evasion in respect of particularly large sums. On the same day the Minsk Regional Prosecutor’s Office again decided to remand him in custody and on 17 July 2009 he was again declared wanted by the police. During July 2009 the applicant was arrested four times by the Ukrainian police at the request of the Belarus authorities and subsequently released, with his last release dated 3 August 2009. On 23 July 2009 the Belarus Prosecutor General lodged an official request for the applicant’s extradition, which remains pending before the Ukrainian authorities. The request contained the following assurances: -   the applicant would not be prosecuted for any other 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 was not made in order to prosecute the applicant for political, racial, religious or ethnic reasons. On 7 August 2009 the applicant requested the European Court of Human Rights to prohibit the Ukrainian Government from extraditing him to Belarus, alleging that there was a risk that he would be subjected to ill-treatment by Belarus law-enforcement officials and would not enjoy the benefit of a fair trial. On 10 August 2009 the President of the Chamber indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that the applicant should not be removed to Belarus unless and until the Court had had the opportunity to consider the case further. At the same time, a factual request was sent to the Government with questions, in particular whether the Ukrainian authorities had received any assurances in respect of the applicant and whether they had had or would have regard to the risk of the applicant’s ill-treatment in Belarus. On 12 August 2009 the Prosecutor General of Belarus supplemented the assurances that the applicant would be ensured a fair trial and that he would be provided with adequate medical treatment if needed. By a letter of 21 August 2009 the Prosecutor General of Ukraine informed the Government’s Agent that relations between Ukraine and Belarus in the extradition domain were quite positive. In particular, between 2004 and 2009 Ukraine extradited to Belarus sixty-five people charged with criminal offences or for execution of sentences. None of those extraditions was followed by any complaints from the extradited individuals, their representatives or non-governmental organisations concerning any violations of their rights. Therefore, the Ukrainian Prosecutor General considered that there were no reasons not to trust the assurances from his Belarus counterpart. The above-mentioned letter also contained the following statement: “In connection with Mr Dobrov’s application to the European Court of Human Rights and having regard to the Court’s requirement under Rule 39 of the Rules of Court to suspend his extradition, the Prosecutor General’s Office of Ukraine guarantees that this person will not be extradited to law-enforcement authorities of the Republic of Belarus until the Court has considered the case.” In their reply of 21 August 2009 to the Court’s factual request the Government noted that the Prosecutor General of Ukraine had not yet decided on the applicant’s extradition to Belarus and that the Ukrainian authorities would take into account any risks of violation of the applicant’s rights under the Convention in case of his extradition. The applicant commented that those assurances were insufficient. On 21 October 2009 the President of the Chamber decided to maintain until further notice the interim measure indicated under Rule 39 of the Rules of Court and to give priority treatment to the above application in accordance with Rule 41 of the Rules of Court. On 29 October 2010 the Government informed the Court about new legislation enacted in June 2010 (see Domestic Law part below) and requested the Court to lift the interim measure indicated in the case. They maintained that the new procedure was directly available to the applicant, the courts were authorised to refuse his extradition if they considered that it would violate his Convention rights, and that GPO decisions on extradition could no longer be enforced immediately. The applicant disagreed, claiming that under the newly introduced extradition procedure it was impossible to suspend decisions to extradite. In the light of the parties’ submissions, on 5 January 2011 the President of the Chamber decided to discontinue application of the interim measure indicated under Rule 39 of the Rules of Court. On 13 April 2011 the applicant presented a letter from one of the opposition leaders, Mr S. Shushkevich, confirming the applicant’s involvement in opposition activities. The parties have not informed the Court about any decision on extradition taken by the GPO in the applicant’s case to date. B.     Relevant domestic law Code of Criminal Procedure On 17 June 2010 the Amendment Act introduced a new chapter to the Code of Criminal Procedure regulating proceedings for extradition to and from Ukraine. Relevant articles of this new chapter provide, among other things, as follows: Article 466. Refusal to extradite a person “A decision not to extradite a person to a foreign state may be taken if: ... 5     the person’s extradition is incompatible with the obligations of Ukraine under international treaties to which Ukraine is a party...” Article 467. Decision on a request for extradition “...If a decision to extradite a person is taken ..., the person shall be issued with a copy of the decision. If such a decision has not been challenged before a court within seven days, the authorities shall organise the actual extradition of the person to the relevant authorities of the foreign state.” Article 468. Procedure for appeal against a decision to extradite a person “A decision to extradite a person may be appealed against by the person concerned, his or her defence counsel or legal representative before a local court... An appeal shall be examined in a single-judge formation within ten days of the date of its receipt by the court. The hearing shall be held in the presence of the prosecutor, the person concerned, and his or her defence counsel or legal representative if the latter participates in the proceedings. ... Following the examination, the judge shall take a reasoned decision to: 1 reject the appeal; 2 allow the appeal and quash the decision to extradite. ... An appeal against the judge’s decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance or by the person concerned, his or her defence counsel or legal representative, within seven days of the date of delivery of the impugned decision. The lodging of an appeal against the judge’s decision with the court shall suspend its entry into force and its execution.” COMPLAINTS   The applicant complained under Articles 3 and 6   §   1 of the Convention that if extradited he would face the risk of being subjected to ill-treatment and flagrant denial of justice by the Belarus authorities. He further complained under Article   13 of the Convention that he had not been provided with an effective remedy to challenge his extradition to Belarus. THE LAW The applicant complained that his extradition to Belarus would expose him to a risk of torture and unfair trial, contrary to Articles 3 and 6 of the Convention, and that he had no remedy with respect to these complaints as required by Article 13 of the Convention. Articles 3, 6 § 1 and 13 of the Convention read, in so far as relevant, as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...” Article 13 “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 notes that on 17 June 2010 the Code of Criminal Procedure was amended to introduce a form of judicial review of decisions on extradition taken by the General Prosecutor’s Office and, therefore, there appears to be no risk that a person concerned would be removed imminently after such a decision is taken. With particular reference to the specific category of cases involving expulsion measures, the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable. It has adopted the same stance in cases where execution of the deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Nasrulloyev v.   Russia , no. 656/06, § 59, 11 October 2007, with further references). In the circumstances of the present case, the Court observes that, despite the fact that the extradition proceedings are pending, according to the information available from the parties no formal decision allowing or refusing the applicant’s extradition has been taken so far. Moreover, the decision to lift Rule 39 in the present case was based inter alia, on express assurances furnished by the Government that any appeal of an extradition order, if one were to be made, would have suspensive effect. Regard is also had to the fact that prior to the enforcement of any extradition order the applicant would have the possibility of applying to the Court to request an interim measure pursuant to Rule 39 should he so wish to do. In such circumstances the Court considers that the applicant’s complaint about any future extradition order would be premature and therefore he cannot claim to be a victim within the meaning of Article 34 of the Convention (see, mutatis mutandis , Vijayanathan and Pusparajah v. France , 27 August 1992, § 46, Series A no. 241 ‑ B). It follows that this application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Dean Spielmann Registrar President