Communicated on 3 November 2015

THIRD SECTION

Application no. 10812/06 Igor Georgiyevich TKACHENKO against Russia and Ukraine lodged on 26 January 2006

STATEMENT OF FACTS

The applicant, Mr Igor Georgiyevich Tkachenko , was born in 1962 and lives in Kiev, Ukraine. On unspecified date after 2007 the applicant acquired the Ukrainian citizenship.

A. The circumstances of the case

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

1. The criminal case against the applicant in Ukraine and the extradition request

In July 1991 the Ukrainian authorities charged the applicant with an attempted murder on 1 July 1991.

The applicant was in possession of a USSR passport and never claimed a national passport in Russia or Ukraine.

Apparently, the applicant lost his USSR passport on unspecified date.

On 26 June 2003 the Nedrigaylovskiy District Court of the Sumy Region (Ukraine) ordered that the applicant be arrested and brought before the court. The court also ordered that the applicant ’ s name be put on the list of wanted persons.

In July 2003 the deputy Prosecutor General of Ukraine lodged an extradition request with his Russian counterpart, referring to the applicant as the Ukrainian national and also mentioning “two previous convictions”.

On 24 October 2003 a Russian court convicted the applicant (as a Russian national) of unlawful handling of firearms and sentenced him to one year and six months ’ imprisonment. The prison term was to be counted from 3 July 2003. (In 2005 the judgment was amended to exclude the reference to the applicant ’ s Russian nationality.)

In 2003 the extradition request was dismissed because the applicant had been serving his prison term in Russia.

In April 2004 the Ukrainian authorities renewed their request, asking the Russian authorities to arrest the applicant under the court order of 26 June 2003 as soon as he would be released from the Russian prison. The letter also mentioned that the applicant was a Ukrainian national and had been previously convicted of rape and theft.

Also in April 2004 Nedrigaylovskiy district prosecutor issued a certificate, stating that the applicant was a citizen of Ukraine since he had been residing in Ukraine when the Ukrainian Citizenship Act of 8 October 1991 entered into force.

2. The applicant ’ s arrest and extradition proceedings in Russia

Referring to Article 60 the Minsk Convention of 1993 (see below), on 7 July 2004 the Ust-Labinskiy District Court of the Krasnodar Region (Russia) authorised the applicant ’ s detention with a view to extradition to Ukraine. The court noted that the applicant was a Ukrainian national and had been serving the prison term in a Russian prison (apparently, under the judgment of 24 October 2003 mentioned above).

On 8 July 2004 the applicant appealed and sought to be brought to the appeal hearing. On 27 July 2004 the Krasnodar Regional Court upheld the detention order. The applicant was not present at the hearing and received a copy of this decision on 3 September 2004.

On 17 August 2004 the deputy Prosecutor General of Russia ordered the applicant ’ s extradition to Ukraine. The official considered that the applicant was a Ukrainian national and noted that the official databases of the Russian authorities contained no information of him acquiring the Russian nationality.

On 29 October 2004 the Krasnodar Regional Court upheld the extradition order. However, on 30 March 2005 the Supreme Court of Russia granted the applicant ’ s appeal, noting that the applicant ’ s arguments concerning his Russian nationality should have received a more detailed assessment. The appeal court ordered the lower court to re-examine the case. The appeal court also ordered that the “preventive measure be maintained”.

On 7 July 2005 the Regional Court extended the applicant ’ s detention until 7 January 2006. The applicant appealed. Allegedly, his appeal was not examined.

On 18 July 2005 the Regional Court upheld the extradition order. The court also maintained the applicant in detention.

Regarding the matter of Russian nationality, the court admitted that the applicant had resided in Russia between 1991 and 1996. However, the court considered that the applicant had no stable legal relationship with Russia because he had never claimed a Russian passport, over years he had had no permanent place of residence and had been unemployed, had never properly registered his residence in Russia and had committed a criminal offence in 2003. At the same time, the court gave credence to the certificate submitted by the Ukrainian district prosecutor who confirmed the applicant ’ s Ukrainian nationality.

The applicant appealed.

On 29 December 2005 the Supreme Court of Russia extended the applicant ’ s detention pending his appeal against the judgment of 18 July 2005.

Since July 2004 the applicant was kept in detention centre no. 23/1 (cell no. 83) in Krasnodar. According to him, the cell measuring 30 sq. m. had 22 beds. The toilet was separated from the main area by a partition of 70 cm in height, without ensuring the sufficient privacy. Being a meter away the neighbouring building, the cell windows did not provide for sufficient day light. It was very cold in winter and stuffy during the summer period. The lights were on day and night. According to the applicant, the appalling conditions of detention adversely affected his health and existing medical conditions (coronary artery disease, bronchitis, asthma, intestine ulcer and poor eyesight).

On unspecified date (before 26 January 2006) the applicant was transferred to detention centre no. 77/4 in Moscow, to enable him to participate in the appeal hearing in the extradition case.

On 12 January 2006 the Supreme Court of Russia upheld the extradition order on appeal. The court also extended the applicant ’ s detention until 7 April 2006.

The applicant appealed against the part of the appeal decision relating to the continued detention. His appeal was treated as a “supervisory review” request and was returned to him without examination because the applicant had not enclosed the court decisions of 18 July 2005 and 12 January 2006, bearing the special stamps used for court decisions.

3. The applicant ’ s transfer to Ukraine and the criminal proceedings against him there

On 13 April 2006 the applicant arrived in detention centre no. 25 in the town of Sumy in Ukraine.

On 15 April 2006 the Nedrigaylovskiy District Court of the Sumy Region authorised the applicant ’ s detention. The court did not refer to Article 156 of the Ukrainian Code of Criminal Procedure (see below) or another provision relating to detention on remand.

Apparently, the applicant did not appeal against this detention order.

In June 2006 the applicant studied the case file material. Apparently, soon thereafter the case was submitted for trial before the Nedrigaylovskiy District Court of the Sumy.

On 3 July 2006 the applicant was transferred to the temporary detention centre in the town of Romny . On 17 July 2006 the applicant was returned to the detention centre in Sumy.

On 30 August 2006 the District Court convicted the applicant (as a Ukrainian national) and sentenced him to seven years ’ imprisonment. The trial court maintained the applicant in provisional detention pending an eventual appeal against the conviction. The judgment was amenable to separate appeal as regards detention.

The applicant appealed against the trial judgment.

On 14 November 2006 the appeal court discontinued the case due to the expiry of the prosecution time-limit and released the applicant from detention.

After his release, the applicant applied for a Ukrainian passport. On 28 December 2006 the competent Ukrainian authority replied that the applicant was not a Ukrainian national because he had not been residing in Ukraine on the date when the Citizenship Act of 1991 had been promulgated. However, he could apply for Ukrainian nationality on account of the Citizenship Act of 2001 in view of his residence at the Ukrainian territory between 1979 and 1987.

Apparently, the applicant did not challenge the above refusal before Ukrainian courts.

4. The proceedings before this Court

On 26 January 2006 the applicant dispatched his first letter to the Court.

On 20 March 2006 the Court confirmed receipt of this letter and provided the applicant with an application pack, indicating that the completed application form was to be returned to the Court “without undue delay, within six weeks of receiving the Court ’ s letter”.

Apparently, the applicant did not receive the Court ’ s letter, being transferred between detention facilities in Russia and then being transferred to Ukraine on 12 April 2006.

On 30 June 2006 the applicant obtained an application form and completed it. He was transferred to another detention facility. The application form was dispatched from there on 18 July 2006. It was received by the Court on 21 August 2006.

B. Relevant domestic law

1. Matters relating to citizenship

(a) Russian law

Article 61 of the Russian Constitution prohibits expulsion or extradition of Russian nationals. Article 462 of the Code of Criminal Procedure allows extradition of foreign nationals or people having no nationality.

The Citizenship Act of 1991 defines citizenship as a stable legal relationship between a person and the State; this relationship consists of mutual rights, obligations and responsibilities, based on the recognition and respect of dignity, fundamental human rights and freedoms.

Russian citizenship could be conferred by way of recognition (section 12 of the Act). Former USSR citizens, having their permanent residence at the territory of the Russian Federation on the date of the Act ’ s entry into force (6 February 1992), were citizens of the Russian Federation by way of “recognition”, unless they declared, within a year, their unwillingness to be citizens of the Russian Federation (section 13).

The citizenship of the Russian Federation was confirmed by the following documents: an identity document or a passport of a citizen of the Russian Federation; prior to receiving the above documents, a birth certificate or another document, indicating t he Russian citizenship (section 10).

(b) Ukrainian law

Under the Citizenship Act of 1991 all citizens of the former USSR were citizens of Ukraine, if they had been residing at the territory of Ukraine on the date when this Act was promulgated (section 2 of the Act).

2. Detention in criminal cases

(a) Ukrainian Code of Criminal Procedure of 1960

Article 156 of the CCrP (with amendments of 21 June 2001) read as follows:

“ Periods of detention during an investigation

Detention during pre-trial investigations shall not exceed two months. In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure, the period of detention may be extended:

(1) to four months - on an application approved by the prosecutor who supervises compliance with the laws by bodies of inquiry and pre-trial investigation or by the prosecutor who, or a judge of the court which, issued the order for the application of the preventive measure;

(2) to nine months - in cases of serious and especially serious crimes, on an application approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, the prosecutor of the regions, the prosecutor of the cities of Kyiv and Sevastopol and the prosecutors of equal rank, or submitted by the same prosecutor for consideration to a judge of an appellate court;

(3) to eighteen months - in particularly complex cases involving especially serious crimes, on an application by the Prosecutor General of Ukraine or his Deputy, or submitted by the same prosecutor for consideration to a judge of the Supreme Court of Ukraine;

In every case in which it is impossible to complete the investigation in full within the periods specified in Parts One or Two of this Article, the prosecutor supervising compliance with the law during the investigation into the case shall have the right to consent to the charge for which there is evidence being referred to the court. In such an event, the part of the case concerning uninvestigated crimes or criminal offences shall, in accordance with the requirements of Article 26 of this Code, be severed into a separate set of proceedings and completed under the general procedure.

The period of detention during the investigation shall be calculated from the moment the detention is ordered and, if the detention was preceded by time spent in police custody, from the moment of arrest. The period of detention shall include any time spent by the person concerned in undergoing expert examination as an in-patient in a psychiatric medical institution of any type. In the event of repeated detention orders being made against a person in the same case, or in a case joined to it or severed from it, or of new charges being brought, previous periods of detention shall be taken into account when calculating the length of the detention.

The period of detention during pre-trial investigations shall expire on the day the court receives the case-file; however, the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure.

In the event that the case is withdrawn from the court by a prosecutor on the basis of Article 232 of this Code, time shall start to run again on the day the case is received by the prosecutor.

In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article.

Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay.

Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation (Article 156 in the wording of Law No. 1960-12 of 10 December 1991, as amended by Laws Nos. 2857-12 of 15 December 1992, and 335-12 of 30 June 1993; in the wording of Law No. 2533-III of 21 June 2001 – which entered into force on 29 June 2001).”

(b) The 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”)

Article 61 of the Minsk Convention provides that t he person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must make reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). A person may be arrested even without the above petition, provided there are reasons to suspect that he or she committed in another Contracting State a criminal offence for which extradition may be requested (Article 61 § 2). If the person is arrested or detained before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3).

In 1997 the Minsk Convention was amended with new Article 61.2. It provides that the time spent in the requested country in “detention on remand” ( содержание под стражей ), which was regulated by Articles 60, 61 and 61.1 of the Convention, should be counted toward the overall period of “detention on remand” ( содержание под стражей ) according to the legislation of the requesting country. The Protocol acquired legal force in respect of Ukraine and Russia in 1999 and 2001 respectively.

COMPLAINTS

In respect of Russia:

The applicant complains under Article 3 of the Convention about conditions of his detention in Russia.

The applicant complains under Articles 5 and 6 of the Convention that his detention in Russia was unlawful because he was a Russian national and thus could not be detained “with a view to extradition”; that there was no legal basis for his continued detention; that the appeal court (Supreme Court of Russia) had no competence to extend detention; if Article 109 of the Russian Code of Criminal Procedure was applicable, the relevant twelve-month or eighteen-month time-limits were exceeded. In any event, there was lack of diligence in the conduct of the extradition proceedings by the Russian authorities.

The applicant also contends under Articles 5, 6 and 13 of the Convention that he had no effective remedies in respect of his detention in Russia; that his appeals on the detention issue were not examined.

Lastly, the applicant alleges that under the Russian Citizenship Act of 1991 he became a Russian national on account of his permanent residence in Russia in February 1992; there was no explicit legal requirement for further “recognition” of his status on the part of Russian authorities. The manner in which the Russian authorities dealt with the citizenship issue amounted, in substance, to a violation of Article 8 of the Convention.

In respect of Ukraine:

The applicant complains under Article 5 of the Convention that his detention in Ukraine between April and August 2006 was unlawful and lacked a legal basis. In particular, the applicant argues that, applying Article 61.2 of the Minsk Convention, such detention exceeded the applicable maximum statutory requirements of the Ukrainian Code of Criminal Procedure; no detention order was issued to furnish a legal basis for his detention during the trial.

QUESTIONS TO THE PARTIES

To the Russian Government and the applicant:

1. Was the applicant a Russian citizen by operation of section 13 of the Russian Citizenship Act of 1991? Did the circumstances of the case (non-recognition or alleged deprivation of Russian citizenship) give rise to a violation of Article 8 of the Convention by Russia?

2.1. Was there a violation of Article 5 § 1 of the Convention on account of the applicant ’ s detention in Russia between July 2004 and April 2006 (see Nasrulloyev v. Russia , no. 656/06, §§ 72-78, 11 October 2007; and Muminov v. Russia , no. 42502/06, §§ 117-123, 11 December 2008) and in particular while the applicant was serving a prison term under the judgment of 20 October 2003 (see Polonskiy v. Russia , no. 30033/05, §§ 142-144, 19 March 2009; a contrario , Horych v. Poland , no. 13621/08 , § 105, 17 April 2012, and Bilyy v. Ukraine , no. 14475/03 , § 93, 21 October 2010 )?

2.2. Did the Russian authorities pursue the extradition proceedings with diligence, as required under Article 5 § 1 of the Convention (see Shakurov v. Russia , no. 55822/10 , §§ 162-171, 5 June 2012)?

3.1. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention in Russia, as required by Article 5 § 4 of the Convention (see, by way of comparison, Muminov v. Russia , no. 42502/06, §§ 113-116, 11 December 2008, and Khodzhamberdiyev v. Russia , no. 64809/10 , §§ 108-113, 5 June 2012)?

3.2. Was there a violation of Article 5 § 4 of the Convention on account of the non-examination of the appeals against the decisions of 7 July 2005 and 23 January 2006 in the part regarding the applicant ’ s detention?

4. Was there a violation of Article 3 of the Convention on account of the conditions of the applicant ’ s detention in detention centre no. 23/1 in Krasnodar in 2004 and 2005?

To the Ukrainian Government and the applicant:

Was there a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s detention between April and August 2006 in Ukraine?