Communicated on 13 November 2017

FIRST SECTION

Application no. 34508/17 Yury PASTUKHOV against Poland lodged on 1 May 2017

STATEMENT OF FACTS

The applicant, Mr Yury Pastukhov , is a Russian national who was born in 1977 and was detained in Suwałki Remand Centre in Poland. He is represented before the Court by Mr B. Zygmont , a lawyer practising in Warsaw.

A. The circumstances of the case

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

On 9 December 2015 the applicant was arrested by Polish border guards under a Russian “wanted” notice issued by the St Petersburg Regional Court on 10 June 2015 in connection with a case concerning the embezzlement of public funds pending against him in Russia (50334/EC/351/2015).

On 11 December 2015 the Suwałki Regional Court ( Sąd Okręgowy ) ordered the applicant ’ s detention for forty days with a view to extraditing him (II Kop 88/15). The domestic court observed that there were no prima facie obstacles to the applicant ’ s extradition and that, on the basis of the material attached to the extradition request, there was a strong suspicion that he had committed the offence for which he was to be extradited. It also found that given ca heavy penalty for the offence, there was a presumption of a risk of absconding, particularly because the applicant had already fled Russia.

It appears that on 30 December 2015 a request from the Russian authorities to have the applicant extradited was registered with the Suwałki Regional Court.

It also appears that the applicant ’ s detention was extended by the Suwałki Regional Court on 15 January 2016.

On 2 March 2016 the Suwałki Regional Court again extended the applicant ’ s detention and held that no obstacles existed to his extradition for the purpose of trying him for a series of economic and financial offences committed as part of an organised criminal gang. A copy of that decision has been submitted to the Court, although it lacks the reasoning.

On 5 May 2016 the Białystok Court of Appeal ( Sąd Apelacyjny ) quashed the extradition decision after an appeal lodged by the applicant ’ s lawyers. The appellate court remitted the case, indicating that the first-instance court should, among other things, (i) obtain a report from a nephrology expert to explain the cause of kidney ailments affecting the applicant given his submission that they had resulted from his being beaten by the Russian police; (ii) confirm whether or not the applicant ’ s case for which his extradition was being sought had the status of res iudicata on account of the applicant ’ s conviction of 27 December 2013; and (iii), in view of the two preceding points, examine the issue of whether Russia was likely to have breached Articles 3 and 6 of the European Convention on Human Rights in respect of the applicant and issue detailed reasoning to that effect.

On 12 May 2016 the Suwałki Regional Court ordered that a report be prepared within fourteen days by an expert from the Forensic Medicine Department of Białystok University in order to establish whether the applicant ’ s health condition had resulted from being beaten in prison in Russia.

On 6 June 2016 the applicant ’ s lawyer applied for the detention order to be lifted and replaced by a different preventive measure.

On 6 June 2016 the Suwałki Regional Court extended the applicant ’ s detention in view of the ongoing extradition proceedings. The court also relied on the original reasons for imposing the measure on the applicant.

On 4 July 2016 the Suwałki Regional Court rectified its decision of 12 May 2016 and ordered that the report in question be prepared by the end of September 2016 by a nephrology expert from Poznań . The domestic court described the difficulties it had faced in finding a nephrology expert who would agree to draw up a report in the applicant ’ s case. It noted that courts in six cities did not even have such doctors listed among their experts and that those who were available had long waiting lists.

On 18 July 2016 the Suwałki Regional Court dismissed an appeal by the applicant ’ s lawyer to lift the measure (of 6 or 11 July 2016) and extended the applicant ’ s detention. The same court extended the measure further on 5 October 2016. The court observed that no other preventive measure could ensure the applicant ’ s presence for the duration of the extradition proceedings because the applicant had no ties with Poland and had the centre of his life in Latvia. The court also reiterated the previous reasons for justifying the applicant ’ s detention and took notice of the fact that an expert report was going to be issued.

On 21 October 2016 the nephrology expert submitted her report to the Suwałki Regional Court. On 28 October 2016 the applicant ’ s lawyer asked that it be rectified and supplemented. As a result, on 3 November 2016 the Suwałki Regional Court ordered that a supplementary report be prepared by the same expert. The report in question was submitted on 4 November 2016.

On 18 November 2016 the Suwałki Regional Court held a hearing at which the applicant and his lawyer were present. The court heard the applicant and his sister, father and a friend on issues related to the applicant ’ s health following his imprisonment in Russia and the scope of his previous criminal case there. The domestic court dismissed applications to admit to the applicant ’ s extradition case file additional documents from his 2013 criminal case on the grounds that those documents were not in Poland and were immaterial for the extradition case.

On 23 November 2016 the Suwałki Regional Court held that there were no obstacles to the applicant ’ s extradition.

On the issue of double jeopardy, the court observed that a thorough analysis of the case file rebutted the argument that the applicant had already been tried for the same offence. In particular, on 25 May 2015 the applicant had been charged with participation in an organised criminal gang which between December 2011 and 14 November 2013 had made a series of transactions embezzling value added tax. Those offences fel l under Articles 30 § 3 and 159 § 4 of the Russian Criminal Code. The applicant ’ s extradition was sought in relation to that decision. On 27 December 2013 the St Petersburg District Court had convicted the applicant of offences under Article 159 § 4 of the Russian Criminal Code and had given him a suspended sentence of four years ’ imprisonment. Consequently, the Suwałki Regional Court found that the dates of the alleged commission of the offences for which extradition was sought and their additional classification under Article 30 § 3 of the Russian Criminal Code distinguished the ongoing case from the applicant ’ s 2013 conviction.

On the issue of a risk of the applicant being ill-treated in Russia, the court held that no such real, personal threat had been shown to exist. The court analysed the reports of various human rights watchdogs and the reports of the nephrology expert. The latter was prepared on the basis of the applicant ’ s medical history and the results of recent medical examinations. The expert found that the available material did not allow for a conclusion that the applicant had sustained damage to his kidneys in 2013 as a result of his being beaten in prison. The applicant ’ s kidneys were in fact in good condition. On the basis of that report, which the court considered to be through, professional and unequivocal, the Suwałki Regional Court concluded that the allegation of ill-treatment in prison in Russia was unsubstantiated.

The twelve-page reasoned decision also contained a lengthy analysis of the legal obstacles to extradition and references to the Court ’ s case ‑ law and that of domestic courts.

On 23 November 2016 the Suwałki Regional Court also decided that the applicant ’ s detention pending extradition should be extended. A copy of the decision has not been submitted to the Court.

On 30 November 2016 the applicant ’ s lawyer appealed against the two above mentioned decisions.

It appears that on 23 December 2016 the Białystok Court of Appeal refused an application from the applicant to be authorised to attend a hearing held to examine an interlocutory appeal against the extradition decision. The court found that the applicant ’ s presence was unnecessary because he was represented by a lawyer of his own choice whose knowledge of the case was good.

On 26 January 2017 the Białystok Court of Appeal upheld the Suwałki Regional Court ’ s extradition decision of 23 November 2016. After a lengthy analysis of the facts of the case and the applicable law, the appellate court fully adhered to the findings of the first-instance court. Two lawyers appointed by the applicant attended the hearing.

The court ’ s extradition decision be came enforceable. On 8 February 2017 the proceedings entered their administrative ph ase (in line with Article 603 § 5 of the Code of Criminal Procedure) and are currently pending before the Minister of Justice ( Minister Sprawiedliwości ), who has the ultimate competence to grant or refuse extradition.

On 21 February 2017 the Suwałki Regional Court extended the applicant ’ s detention pending extradition. The court took notice of the decision that no obstacles existed to the applicant ’ s extradition and that the case was pending before the Minister of Justice. The court also relied on the original reasons for the applicant ’ s detention, namely the strong suspicion that he had committed the offences with which he had been charged in Russia and that there was a heavy penalty for the offences, which created a presumption that he might abscond, particularly because he had already fled his country.

The applicant ’ s lawyer appealed against that decision, arguing that the court should not have extended the measure proprio motu in the absence of a request from the Minister of Justice, who had competence over the case. He also applied for the appellate court to submit a legal question to the Supreme Court to determine whether Article 603 § 5 of the Code of Criminal Procedure should be interpreted as requiring that detention pending an extradition which was in its administrative phase could only be extended upon a motion from the Minister of Justice.

On 24 March 2017 the Bialystok Court of Appeal decided not to submit a legal question to the Supreme Court, as, in its view, no such issue arose in the case. In a separate decision of the same date, the Białystok Court of Appeal upheld the detention measure, amending the legal basis of the detention order in view of the fact that the proceedings for the applicant ’ s extradition were no longer in the judicial phase. The court observed that the interpretation of the law by the applicant ’ s lawyer was erroneous. It was a well-established view of legal doctrine, supported by a judgment by the Lublin Court of Appeal in case no. II AKp 10/10, that Article 263 § 7 of the Code of Criminal Procedure was applicable to detention pending an extradition which was in its administrative phase. Under that provision, the court which had up to then decided on a detention measure could continue ruling on the issue of its own motion. The court disagreed with the applicant ’ s interpretation of the law and found that the Minister of Justice was not a competent authority to request the extension of preventive measures in relation to a detainee awaiting extradition.

On 26 May 2017 the Suwałki Regional Court extended the applicant ’ s detention. The applicant appealed against that decision, repeating the arguments in his previous detention appeal.

On 23 June 2017 the BiaÅ‚ystok Court of Appeal upheld the impugned detention decision as lawful and justified. It held that the applicable provision was Article 263 § 7 of the Code of Criminal Procedure, not Article 249 § 4, which allowed for extension proprio motu because the court ’ s decision authorising extradition was to be c onsidered by analogy as a first ‑ instance conviction. The court disagreed with the applicant ’ s interpretation of the law and found that the Minister of Justice was not a competent authority to request extension of preventive measures in relation to a detainee awaiting extradition.

On 7 June 2017 the Ombudsman lodged an extraordinary cassation appeal against the decision to extradite the applicant. The Ombudsman highlighted the fact that the applicant had not been allowed to attend the hearing of the appellate court which had examined the interlocutory appeal against the decision of 23 November 2016. The proceedings appear to be ongoing .

On 12 July 2017 the Supreme Court decided not to admit an application by the applicant to stay enforcement of the court ’ s decision on the applicant ’ s extradition of 26 January 2017.

It appears that on 22 August 2017 the Suwałki Regional Court extended the applicant ’ s detention until 2 November 2017.

It appears that on 27 February 2017 the applicant ’ s lawyer applied to the Minister of Justice to halt the applicant ’ s extradition and that that request has not yet been examined.

The applicant submitted that he was suffering from severe depression and that he had never received a visit from his partner and his two children during his detention in Poland.

On 13 October 2017 the Minister of Justice refused to have the applicant extradited to Russia on the grounds that the important doubts existed as to the extent the applicant had already been convicted of offences for which his extradition was being sought and as to whether he would receive a fair trial in Russia.

On 13 October 2017 the Suwałki Regional Court decided to lift the detention measure and the applicant was released. The copy of this decision was submitted without the reasoning part.

B. Relevant domestic law

Extradition procedure is regulated in Articles 602-607 of the Code of Criminal Procedure ( Kodeks Postępowania Karnego , the “CCP”). Under Article 603 § 5 of the CCP, the regional court, having ruled on the extradition request of a foreign state, shall transfer its binding decision together with the case file to the Minster of Justice. The Minister of Justice shall then decide on the request and communicate this decision to the competent authority of the foreign state.

Article 249 of the CCP sets out general grounds for the imposition of preventive measures and regulates the procedure before the court which has jurisdiction over such measures. Under paragraph 4 of this provision, preventive measures can be ordered until the beginning of the enforcement of a prison sentence.

Article 263 of the CCP regulates the extension of detention and its statutory maximum duration. In particular, paragraph 7 of this provision provides that from the delivery of a first judgment by the trial court onwards, detention shall be extended for the period which does not exceed six months at a time.

COMPLAINTS

The applicant complains, invoking Articles Article 5 § 1 (f) and Article 5 § 3 of the Convention that his detention has been unjustified and lengthy; that his extradition proceedings have been conducted with unnecessary delays and without the due diligence and special expedition required for this type of case; and that he was not able to attend the appellate court hearing which examined the interlocutory appeal against the extradition decision of 23 November 2016.

He also complains under Article 5 § 1 (f) of the Convention that his detention from the transfer of his extradition case to the Minister of Justice until his release, was unlawful. In particular, the applicant argues that the Suwałki Regional Court extended the measure in question of its own motion, whereas the law requires that such an extension be sought by the Minister of Justice (Articles 250 § 2 (1) and (2) and 603 § 5 of the Code of Criminal Procedure).

QUESTION TO THE PARTIES

Was the applicant deprived of his liberty in breach of Article 5 § 1 (f) of the Convention? In particular, was the applic ant’s detention from 8 February until 13 October 2017 been “in accordance with a procedure prescribed by law”?