CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 19 novembre 2009

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sFB187EB8 { font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#000000 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } 855 19.11.2009   Press release issued by the Registrar   Chamber judgment [1] Kaboulov v. Ukraine (application no. 41015/04)   RISK OF INHUMAN OR DEGRADING TREATMENT IN CASE OF EXTRADITION TO KAZAKHSTAN   Violations of Articles 3 (prohibition of inhuman or degrading treatment or punishment), 5 §§ 1, 2, 4, 5 (right to liberty and security), 13 (right to an effective remedy) and 34 (right to individual petition) No violation of Article 2 (right to life) of the European Convention on Human Rights   Principal facts   The applicant, Amir Kaboulov, is a citizen of Kazakhstan who was born in 1979 and is currently detained in a pre-trial detention centre in Ukraine. In June 2003 he was accused in Kazakhstan, in his absence, of having committed a murder and the Kazakh authorities issued an international search warrant for him. Aggravated murder is an offence punishable by death in Kazakhstan.   Mr Kaboulov was arrested at 9.20 p.m. on 23 August 2003 in Ukraine and has been detained ever since. A detention record bearing the above-mentioned time and date was drawn up specifying that Mr Kaboulov was detained on suspicion of having committed a murder; it indicated that he had been acquainted with the reasons for his arrest but did not specify when that had happened. Mr Kaboulov stayed in a sobering up facility to be treated for alcoholic intoxication after which he was transferred to a police station where he remained till 13 September 2004 when a court ordered his detention. The grounds for detention relied upon by the court were the search order for Mr Kaboulov issued in Kazakhstan and his related extradition there.   In September 2004 the Kazakh authorities requested the Prosecutor General of Ukraine to detain Mr Kaboulov pending extradition and presented assurances that, among others things, the applicant would not be liable for the death penalty in Kazakhstan and that his rights and lawful interests would be protected. The Ukrainian authorities agreed to extradite him.   Between October 2004 and December 2004, Mr Kaboulov’s lawyer and mother brought several sets of proceedings challenging his detention and the decision to extradite him. The outcome of some of the proceedings is still unknown.   Complaints, procedure and composition of the Court   Mr Kaboulov complained about unlawfulness of his detention and that he had no possibility to challenge it or to receive compensation for being detained unlawfully. He stated that his extradition to Kazakhstan endangered his life, well-being and jeopardised his fair trial rights. He further complained that Ukrainian authorities exerted pressure on him to withdraw his application to the Court. He relied on Articles 2, 3, 5 §§ 1, 2, 3, 4 and 5, and Articles 6, 13 and 34 of the Convention.   The application was lodged with the European Court of Human Rights on 22 November 2004. The additional complaint related to Article 34 was introduced on 12 March 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Karel Jungwiert (Czech Republic), Rait Maruste (Estonia), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), Zdravka Kalaydjieva (Bulgaria), judges , Mykhaylo Buromenskiy (Ukraine), ad hoc judge , and Stephen Phillips , Deputy Section Registrar .     Decision of the Court   Article 2 complaint: risk of the capital punishment in the event of extradition   The Court noted that no executions had been carried out in Kazakhstan in 2007 - 2008 and death sentences imposed had been commuted to life imprisonment. Furthermore, there was a moratorium on the enforcement of the capital punishment which moratorium had been extended by a law in 2004. The Kazakh authorities had given assurances that the applicant would not be liable for the death penalty. Consequently, the Court concluded unanimously that no real risk existed of the applicant being executed if extradited to Kazakhstan and, therefore, there had been no violation of Article 2.   Article 3 complaint: risk of ill-treatment in the event of extradition   The Court considered the reports of various international and domestic organisations describing numerous credible outbreaks of torture, ill-treatment of detainees, routine beatings and the use of force against criminal suspects by the Kazakh law-enforcement authorities to obtain confessions, and no effective investigations being carried into such allegations. Those reports had also noted very poor prison conditions including overcrowding, poor nutrition and untreated diseases. Given that the Kazakh authorities had not presented any evidence, reliable sources or reports capable to counter the above assertions, the Court found that Mr Kaboulov ran a real and serious risk of being ill-treated. The Court noted that the aforementioned reports had credibly shown that that had been the case in respect of any criminal suspect held in custody in Kazakhstan. Accordingly, the Court held unanimously that, if Mr Kaboulov were extradited to Kazakhstan, the Ukrainian authorities would violate Article 3.   Article 13 complaint: no effective remedy to challenge his extradition   The Court observed that several sets of proceedings had been brought on behalf of Mr   Kaboulov; those had all been unsuccessful and the courts had refused to examine some of them for lack of jurisdiction. In addition, the Court took note of the domestic law and practice, including the resolution of the Plenary Supreme Court of Ukraine adopted in October 2004, which established the limits for review of lawfulness of the requests for detention pending extradition. It came to the conclusion that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, by which he could challenge his extradition on the ground of the risk of ill-treatment on return. Accordingly, it found a breach of this provision on these grounds.   Article 6 complaint: no fair trial if extradited   The Court found no reasons to doubt that the Ukrainian authorities would comply with this judgment, and therefore held that it was not necessary to examine the hypothetical question as to whether, if Mr Kaboulov was extradited, there would be a violation of Article 6.   Article 5 complaints   Article 5 § 1: unlawful detention   The Court considered separately two periods during which Mr Kaboulov had been detained: his initial detention from 23 August 2004 until the judicial decision of 13 September 2004 authorising his detention with a view to his extradition, and his subsequent detention following that judicial decision.   As to the initial period of detention, the Court found that the domestic authorities mentioned a number of reasons for Mr Kaboulov’s arrest: either because he had been found drunk in a public place and needed to be brought to sobering up facility or because he had been suspected of committing an unspecified criminal offence, or in order to establish his identity for which he had been brought to the police station. The authorities had not provided specific justifications for Mr Kaboulov’s prolonged detention under any of the above grounds. Furthermore, even supposing that the real reason behind the applicant’s initial detention had been his extradition, the Court recalled that the Ukrainian legislation did not provide for a sufficiently accessible, precise and foreseeable extradition procedure. Accordingly, the Court held unanimously that the applicant’s detention in the initial period was not compatible with the requirements of Article 5 § 1.   As to his subsequent detention after the judicial decision of 13 September 2004 authorising it, the Court found unanimously that there also had been a violation of Article 5 § 1 (f) because the Ukrainian law did not provide for a sufficiently accessible, precise and foreseeable procedure capable to prevent arbitrary detention pending extradition.   Article 5 § 2: not informed of the reasons for his detention   The Court noted that the only document on which the Ukrainian authorities relied to show that Mr Kaboulov had been informed of the reasons for his detention had been the detention record for his initial arrest. It did not, however, contain any specific time or date when Mr   Kaboulov was informed of the reasons for his detention. Consequently, the Court found that there had been no reliable indication of whether, in the period from 23 August till 13   September 2004, Mr Kaboulov had ever been informed of the reasons for his detention. Accordingly, the Court held unanimously that there had been a violation of Article 5 § 2.   Article 5 § 4: no possibility to challenge his continued detention   The Court noted that, since October 2004, Mr Kaboulov had brought several proceedings for review of the lawfulness of his continued detention and that those proceedings brought no result. His requests for release had not been examined on their merits. The Court recalled that it had already found that the Ukrainian legislation did not provide for an effective and accessible procedure to challenge lawfulness of detention pending extradition. Accordingly, the Court concluded unanimously that there had been a violation of Article 5 § 4.   Article 5 § 5: no compensation for unlawful detention   The Court noted that Mr Kaboulov had been detained in accordance with domestic law and consequently he had not been entitled for compensation under the Ukrainian legislation. Accordingly, the Court found a violation of Article 5 § 5.   Article 34: obstacles to right to individual petition:   The Court noted that it had received a letter from Mr Kaboulov of 3 September 2008 stating that he wished to withdraw his application before the Court. That letter had been accompanied by another letter from the Governor of the detention facility where Mr Kaboulov had been held, which had confirmed that the authorities knew the content of Mr Kaboulov’s letter. The authorities had sent his letter with a separate accompanying letter making comments on its contents. The Court found unanimously that this had been incompatible with Article 34 of the Convention.   Article 41 (just satisfaction):   Under this Article of the Convention, the Court awarded 5,000 euros (EUR) in respect of non-pecuniary damage.   (The judgment is available only in English.)   ***   This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) or Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.