Communicated on 16 November 2017

FIRST SECTION

Application no. 20611/17 Yury KOMISSAROV against the Czech Republic lodged on 8 March 2017

STATEMENT OF FACTS

The applicant, Mr Yury Komissarov , is a Russian national who was born in 1968 and lives in Prague. He is rep resented before the Court by Mr Filip Schmidt, a lawyer practising in Prague.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant arrived in the Czech Republic in 1998 and has been living there since then; in 2000 he was granted a permanent residence permit. Currently, he is detained pending his extradition to Russia.

1. Extradition proceedings

In 1999, the applicant was indicted in Russia for complicity in fraud allegedly committed in 1997-98 and ca using a total damage of 483,600 Russian roubles (RUB) to several other persons. The Prosecutor General ’ s Office of the Russian Federation requested several times that the Czech Republic extradite the applicant, the first time in 2005. The extradition proceedings failed several times prior to October 2014 either owing to the lack of timely cooperation on the part of the Russian authorities or to the applicant ’ s absence from the territory of the Czech Republic (or the inability of the Czech authorities to reach the applicant).

On 7 October 2014 the Russian Prosecutor General ’ s Office again requested that the Czech authorities arrest and extradite the applicant to stand the trial in the Russian Federation. On 11 March 2015 the Prague Municipal Court ( městský soud ) ruled that the applicant could be extradited under the diplomatic guarantees and assurances provided by the Russian Prosecutor General ’ s Office. On 17 August 2015 the Prague High Court ( vrchní soud ) dismissed an appeal by the applicant. On 10 November 2015 the Minister of Justice authorised the applicant ’ s extradition for trial in Russia.

On 15 February 2016 the applicant lodged a constitutional complaint against the decisions of the courts and the Minister. On 29 March 2016 the Constitutional Court ( Ústavní soud ) dismissed the complaint, considering it as having been lodged outside the statutory two-month time-limit in respect of the courts ’ decisions and as manifestly ill-founded in respect of the Minister ’ s authorisation. The Constitutional Court did not find any errors in the Minister ’ s authorisation, while it could not examine the reasons given by the courts, including as regards the possibility of the applicant ’ s extradition and respect for his family life.

2. The applicant ’ s detention pending extradition

On 17 May 2016 the applicant was taken into detention pending extradition ( vydávací vazba ).

On 18 May 2016 he lodged an asylum application. The next day the Minister of Justice informed the applicant that the preparation process for his extradition had been put off pending the asylum proceedings.

On 15 June 2016 the applicant applied to be released from detention, on the grounds that the detention no longer served its stated purpose and that it interfered with the family life of him and his family. He also proposed alternative measures to replace his detention.

On 29 June 2016 the Prague Municipal Court dismissed the application and did not accept the alternative measures. On 26 July 2016 the Prague High Court upheld the dismissal, adding that the use of alternatives to detention is ruled out in case of detention pending extradition (that is to say detention following the Minister ’ s authorisation of extradition), as opposed to preliminary detention ( předběžná vazba ) in the course of the extradition proceedings. The former detention is obligatory and a detainee may be released only if the extradition is suspended or if the duration of the detention reaches the maximum statutory period of time, excluding the period of the asylum proceedings.

On 12 September 2016 the applicant lodged a constitutional complaint against the decisions of the Municipal Court and the High Court, alleging, inter alia, that his continuing detention was contrary to Article 5 § 1 (f) of the Convention since the relevant authorities had not proceeded with due diligence.

On 13 December 2016 the Constitutional Court dismissed the complaint. It noted that a person who had been taken into detention pending extradition could not be released solely on the grounds that he or she had lodged an asylum request while in detention, and pointed out the statutory time-limits for the asylum proceedings, guaranteeing only limited prolongation of the detention pending extradition.

In the meantime, on 23 November 2016, the applicant again applied for release, pointing also to the delays in the asylum proceedings. The application was dismissed by the Prague Municipal Court on 8 December 2016. A subsequent appeal by the applicant was dismissed by the Prague High Court on 5 January 2017. The courts did not find the duration of the applicant ’ s detention to have been excessively long, taking into account the asylum proceedings that had been triggered by the applicant.

3. Asylum proceedings

On 18 May 2016 the applicant lodged an asylum application which was delivered to the Ministry of the Interior the following day.

On 23 January 2017 the Ministry decided not to grant asylum to the applicant; the decision became final on 10 February 2017.

On 27 February 2017 the applicant lodged an administrative action with the Prague Municipal Court. The court dismissed it on 2 June 2017.

On 19 June 2017 the applicant lodged a cassation complaint ( kasační stížnost ) with the Supreme Administrative Court ( Nejvyšší správní soud ). The proceedings are pending.

In the course of the proceedings before the Ministry, the applicant lodged a complaint about the length of the asylum proceedings with the ombuds wo man ( veřejná ochránkyně práv ) on 22 September 2016. On 18 November 2016 he was informed that an investigation would be initiated in the case.

B. Relevant domestic law

Proceedings for extradition are regulated by the International Judicial Cooperation (Criminal Matters) Act ( zákon o mezinárodní justiční spolupráci ve věcech trestních , no. 104/2013 – hereinafter “the Judicial Cooperation Act”). In accordance with section 101(1) of the Judicial Cooperation Act, following an authorisation of the extradition by the Minister of Justice and provided that the extradition has not been suspended, a court rules on taking the person into detention pending extradition or on transformation of preliminary detention into detention pen ding extradition. Under section 101(3) of the Judicial Cooperation Act in conjunction with Article 71a of the Code of Criminal Procedure (hereinafter “the CCP”), a detained person may at any moment lodge an applica tion for release. Under section 101(3) of the Judicial Cooperation Act in conjunction with Article 73 of the CCP, detention pending extradition cannot be substituted by alternative measures, such as a guarantee provided by a trustworthy third party, supervision by a probation officer ( dohled probačního úředníka ), an interim measure or a personal guarantee given by the person detained.

Section 101(5) of the Judicial Cooperation Act provides that detention pending extradition may last a maximum of three months. The person to be extradited must be released from detention on the last day of this period at the latest. In a case of unforeseen circumstances preventing the execution of the extradition, a court, acting upon a request of the Ministry of Justice, may further extend the period by a maximum of three months; but the total length of the detention pending extradition must not exceed six months.

Under Section 101(6 )( a) of the Judicial Cooperation Act the maximum allowed period of detention pending extradition does not include the period in which the person in detention is considered to have been an asylum-seeker.

Asylum proceedings, including their length, are regulated by the Asylum Act (no. 325/1999). Pursuant to section 27(7) of the Asylum Act, if there are ongoing extradition proceedings concerning an asylum-seeker or if his or her extradition has been already allowed, the Ministry of the Interior deals with his or her asylum application as a priority. It shall issue a decision in the matter without undue delay, within sixty days at the latest. The same applies for proceedings and a decision of a regional court if an administrative action has been lodged against a decision of the Ministry of Interior, as well as for the Supreme Administrative Court ruling upon a cassation complaint by an asylum-seeker. The courts shall proceed in the matter with maximum expedition, issuing a judgment no later than sixty days after commencement of the proceedings (section 32(4) of the Asylum Act).

COMPLAINTS

The applicant complains under Article 5 § 1 (f) of the Convention that his detention has been arbitrary and unjustified and that its length has become unforeseeable for him. Pointing to the delays in the asylum proceedings (the length of the asylum proceeding exceeding the statutory time-limits), he argues that the domestic authorities have not proceeded with due diligence and expedition required by the provision relied on. He further complains that the domestic courts did not consider the use of alternative and less restrictive measures to his detention pending extradition, despite the fact that detention should always to be regarded as a measure of last resort.

QUESTIONS TO THE PARTIES

Has the detention of the applicant been in compliance with Article 5 § 1 (f) of the Convention? In particular, having regard to the length and the course of the asylum proceeding, has the detention been lawful and not arbitrary and have the extradition proceedings been still in progress and prosecuted with due diligence?