Communicated on 7 January 2016

FIFTH SECTION

Application no. 23361/15 Aleksandr Vladimirovich KARPENKO against Ukraine lodged on 30 April 2015

STATEMENT OF FACTS

The applicant, Mr Aleksandr Vladimirovich Karpenko, is a Russian national, who was born in 1970 and lives in the Odesa Region. He is represented before the Court by Ms A. Martynovskaya , Mr M. Tarakhkalo , and Ms Y. Zaikina , lawyers practising in Kyiv.

A. The circumstances of the case

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

The applicant is divorced and he is bringing up his son, born in 2002, alone.

On 11 June 2014 the Pavlovskiy District Court, Krasnodar Region, the Russian Federation, convicted the applicant of the unlawful acquisition and storage of ammunition. It sentenced the applicant to one year ’ s imprisonment and imposed a fine on him.

In the beginning of August 2014, without having served his sentence, the applicant moved to Ukraine where he rented an apartment in the village of Avangard in the Ovidiopol District of the Odesa Region and settled with his son.

On 13 August 2014 he applied to the Odesa regional department of the State Migration Service seeking refugee status.

On 3 December 2014 a police officer of the Ovidiopol District Police arrested the applicant by virtue of Articles 208 and 582 of the Code of Criminal Procedure (“the CCP”), following reference to a police database.

On 4 December 2014 the Ovidiopol District Court placed the applicant under provisional arrest until 11 January 2 015, in accordance with Article 583 of the CCP with a view to his possible extradition. The court referred to the prosecutor ’ s submission that the applicant was put on an international list of wanted persons. It stated that the applicant had been convicted of a crime in Russia and that he had not served his sentence.

The applicant ’ s son was taken into State care.

On 30 December 2014 the Office of the Prosecutor General of the Russian Federation submitted to the Ministry of Justice of Ukraine a request for the applicant ’ s extradition.

On 5 January 2015 the prosecutor of Malynivskyy District of Odesa asked the Malynivskyy District Court to place the applicant under extradition arrest in accordance with Article 584 of the CCP to ensure his surrender to the Russian authorities.

On 6 January 2015 the Malynivskyy District Court granted the prosecutor ’ s request and placed the applicant under the extradition arrest for the period until his surrender to Russian authorities but no longer than the time-limit outlined in Article 584 § 10 of the CCP.

The applicant appealed.

On 14 January 2015 the Odesa Regional Court of Appeal (“the Court of Appeal”) quashed the decision of 6 January 2015 and dismissed the prosecutor ’ s request as unsubstantiated. In its reasoning, the Court of Appeal stated that the Russian authorities had not submitted any request within the extradition procedure either on 3 or 4 December 2014 when the applicant had been detained respectively by the police and the Ovidiopol District Court. Furthermore, there was no information in the case file about the applicant being put on an international list of wanted persons. As to the decision of 6 January 2015, the time-limit for the extradition arrest had not been properly specified. Furthermore, in breach of Articles 548 and 584 of the CCP, the extradition request was only available as a fax copy, not a copy certified by the Ukrainian authorities. Moreover, the name of the person to be extradited was not legible; nor were the places bearing the signature of the official and the stamp of the Russian authorities. The Court of Appeal also found that the investigator had failed to consider the applicant ’ s request to have measures taken to protect his property.

On 15 January 2015 the applicant was released. On his exit from the detention centre he was arrested once again. In the new arrest report the police referred to Articles 208 and 582 of the CCP and noted that the applicant had been convicted of a crime in Russia and sentenced to one year ’ s imprisonment.

The prosecutor lodged another request to have the applicant placed under extradition arrest.

On 16 January 2015 the Malynivskyy District Court granted the prosecutor ’ s request and placed the applicant under extradition arrest for the period until his surrender to the Russian authorities but no longer than the time-limit outlined in Article 584 § 10 of the CCP.

The applicant appealed.

On 26 January 2015 the Court of Appeal quashed the decision of 16 January 2015 and dismissed the prosecutor ’ s request to have the applicant placed under the extradition arrest as unsubstantiated. It stated that the failings which had been established by the Court of Appeal on 14 January 2015 were still present in the prosecutor ’ s second request. Notably, there was no proper extradition request from the Russian authorities. It ordered that the applicant be released.

Following the hearing, the applicant was arrested once again. In the arrest report the police referred to Articles 208 and 582 of the CCP and noted that the applicant had been convicted of a crime in Russia and sentenced to one year ’ s imprisonment.

On that day, 26 January 2015, the applicant again asked the police to take measures to protect his property.

On 28 January 2015 the prosecutor lodged another request to have the applicant placed under the extradition arrest.

On 29 January 2015 the Malynivskyy District Court returned the request to the prosecutor finding that it had no territorial jurisdiction to consider the matter.

Following that hearing the applicant was arrested once again by police officers. In the arrest report the police referred to Articles 208 and 582 of the CCP and noted that the applicant had been convicted of a crime in Russia and sentenced to one year ’ s imprisonment.

On 30 January 2015 the prosecutor lodged another request to have the applicant placed under the extradition arrest.

On the same day the Prymorskyy District Court of Odesa returned the request to the prosecutor finding that it had no territorial jurisdiction to consider the matter.

On 31 January 2015 the prosecutor lodged another request to have the applicant placed under extradition arrest.

On the same day the Malynivskyy District Court granted the prosecutor ’ s request and ordered the applicant ’ s extradition arrest for a period of sixty days, until 30 March 2015.

The applicant appealed.

On 10 February 2015 the Court of Appeal quashed the decision of 31 January 2015 and dismissed the prosecutor ’ s request as unsubstantiated. It stated that there was no evidence that the original of the extradition request had been submitted or dispatched to the Ukrainian authorities and that the available documentation had not been properly certified and prepared. The Court of Appeal ordered the applicant ’ s release.

Following his release, the applicant was arrested once again by police officers. In the arrest report the police referred to Articles 208 and 582 of the CCP and noted that the applicant had been convicted of a crime in Russia and sentenced to one year ’ s imprisonment.

On 13 February 2015 2015 the prosecutor lodged a request for a non ‑ custodial preventive measure to be applied in respect of the applicant.

On the same day the Malynivskyy District Court released the applicant on condition that he give a written undertaking not to abscond.

B. Relevant domestic law

Code of Criminal Procedure of 13 April 2012

Article 208 § 1 of the CCP provides that a competent official has the right to arrest an individual without a prior decision of the investigating judge or the court if that individual is suspected of crime punishable by imprisonment and: (1) if that individual was caught when committing a crime or when attempting to commit it; or (2) if immediately after the commission of a crime an eye-witness, including a victim, or the totality of obvious signs on the body, on the clothes or at the scene of the event indicate that that individual has just committed a crime.

Article 541 of the CCP provides definitions of terms used in the CCP in the context of international cooperation on criminal matters. In accordance with this Article, the extradition procedure includes: submission of an official request to establish on the territory of the requested State the whereabouts of the person to be extradited; the submission of an official request for extradition of such a person; an inquiry into the circumstances which may prevent extradition; the adoption of a decision on the extradition request; the surrender of the person to the requesting State.

The same Article defines “provisional arrest” ( тимчасовий арешт ) as the placing in detention of a person, who is sought for having committed a crime outside Ukraine, for the period determined by the CCP or by an international treaty to which Ukraine is a signatory, until the receipt of an extradition request. “Extradition arrest” ( екстрадиційний арешт ) is defined as placing a person in detention to ensure his or her extradition.

Article 548 § 5 of the CCP provides that competent central authority of Ukraine may consider a request for international cooperation which is submitted by fax, e-mail or other means of communication. A measure in respect of such a request may only be taken upon confirmation of the posting or submission of the original request.

In accordance with Article 582 §§ 1 and 6 of the CCP a person wanted by a foreign state for a crime committed may be arrested by a competent official. The arrestee should be released immediately if: (1) within sixty hours of the arrest the person was not taken to an investigating judge for consideration of a request to hold the person under provisional arrest or extradition arrest; (2) circumstances preventing extradition have been established.

Article 583 of the Code states that, before the receipt of the extradition request, a person who has committed a crime outside Ukraine and who has been arrested in Ukraine may be placed under provisional arrest for a period of up to forty days or for another period of time as stipulated in the respective international treaty to which Ukraine is a signatory (paragraph 1). The request to place the person under provisional arrest should be examined within the shortest possible time, but not later than seventy-two hours after the actual arrest of the person (paragraph 5).

Article 584 of the Code provides that a request to place a person under extradition arrest should be submitted by a prosecutor after the receipt of an extradition request from the competent authority of a foreign State. The prosecutor is obliged to submit a copy of the extradition request certified by a central Ukrainian authority, documents pertaining to the person ’ s citizenship and the available materials of the extradition inquiry (paragraphs 1 and 2). The extradition arrest shall be applied for the period necessary to take a decision on the person ’ s extradition and his or her surrender; however, it cannot exceed twelve months (paragraph 10). The release of the person from extradition arrest by the investigating judge shall not prevent its repeated application in order to surrender the person to a foreign state in fulfilment of the decision on extradition, unless otherwise provided by an international treaty to which Ukraine is a signatory (paragraph 13).

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that he was unlawfully and arbitrarily deprived of his liberty between 3 December 2014 and 13 February 2015.

2. The applicant complains under Article 13 of the Convention that he did not have effective remedy against his repeated arrests and detention.

QUESTIONS TO THE PARTIES

1. With respect to the period between 3 December 2014 and 13 February 2015, w as the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraph (f) of this provision?

The Government are invited to comment on each decision of the domestic authorities which served as the basis for the applicant ’ s arrests or periods of detention in the above time span.

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 5 § 1 of the Convention, as required by Article 13 of the Convention? Was the remedy used by the applicant effective in the circumstances of the present case? Do the facts of the case disclose a violation of Article 5 § 4 of the Convention?