Communicated on 16 October 2015

FIRST SECTION

Application no. 3598/10 Vladimir Borisovich KISLOV against Russia lodged on 19 December 2009

STATEMENT OF FACTS

The applicant, Mr Vladimir Borisovich Kislov , is a Belarusian national, who was born in 1974. His current whereabouts are not specified. The applicant is represented before the Court by Ms O. Tseytlina , a lawyer practising in St Petersburg.

A. The circumstances of the case

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

It appears that in 2002 and 2003 the applicant resided in Minsk (Belarus) and worked as a chief officer of the legal unit in the regional consumer protection society. Apparently, he was also a member of the local electoral unit. In 2003 he was employed in the legal and propaganda unit of the local consumer protection society.

In 2004 the applicant made written complaints to various public authorities, alleging misappropriation of funds within the local consumer protection society. He also wrote to the local newspapers, reiterating his allegations.

The Belarusian authorities started a criminal investigation in respect of the applicant on charges of taking a bribe and forgery of an official document.

The applicant was ordered not to leave the area of his residence.

Several trial hearings were held before the Moskovskiy District Court of Minsk in March 2005. It appears that the applicant was present at them and was assisted by privately-retained lawyer D.

Allegedly, at the hearing on 27 March 2005 the presiding judge refused to hear the applicant and stated that he would not study the case that had already been studied and investigated for a year by the Prosecutor General ’ s Office. In support of this allegation, the applicant submits written statements from two persons who were present at the trial.

On 27 March 2005 the applicant left Belarus and arrived in Russia. According to the applicant, he decided to leave Belarus on account of the persecution and harassment on the part of the domestic authorities. Following his arrival in Russia, the applicant made no application for refugee status or temporary asylum under the Refugees Act (see “Relevant domestic law and practice” below).

On 28 March 2005 the Moskovskiy District Court of Minsk ordered the applicant ’ s detention.

It appears that, for unspecified reason, lawyer D. no longer participated in the trial hearings after the applicant ’ s departure.

By judgment of 5 December 2005 the District Court convicted the applicant of taking a bribe and forgery of an official document. The applicant was sentenced to seven years ’ imprisonment. As follows from the text of the trial judgment, it could be challenged by way of ordinary appeal. For unspecified reasons, lawyer D. did not receive a copy of the trial judgment and did not appeal against it within the statutory time-limit.

On 7 July 2009 the applicant was arrested in Russia. On 8 July 2009 a prosecutor ordered his continued detention for forty days.

On 10 August 2009 another prosecutor extended the applicant ’ s detention until 7 January 2010. On 13 August 2009 the applicant sought judicial review of this detention order. The complaint was received by the Smolninskiy District Court of St Petersburg on 19 August 2009. On 17 September 2009 the court declared the detention order unlawful because a prosecutor had no competence to decide on detention. The court did not order the applicant ’ s release but ordered the prosecutor to “remedy the shortcoming”. The prosecutor ’ s office appealed. On 9 November 2009 the St Petersburg City Court upheld the judgment of 17 September 2009. The appeal court did not order the applicant ’ s release.

In the meantime, on 2 October 2009 the Prosecutor General ’ s Office of the Russian Federation granted the extradition request of the Belarusian authorities. The extradition order contained no findings relating to a risk of ill-treatment in respect of the applicant in Belarus.

The prosecutor ’ s office applied to the District Court for extension of the applicant ’ s detention. On 13 November 2009 the District Court refused to authorise the applicant ’ s detention, noting that such request should have been lodged within two months following the applicant ’ s arrest (Article 109 of the Code of Criminal Procedure). The applicant was released.

It appears that for some time between August and November 2009 the applicant was kept in St Petersburg detention centre no. 47/4 in cells nos. 52 and 146 together with convicts (see “Relevant domestic law”).

The applicant sought review of the 2005 judgment against him. On 21 July 2010 the Minsk City Court examined the application by way of supervisory review and dismissed it. However, the court reduced the prison term to four years ’ imprisonment (on account of the more recent favourable criminal legislation).

On 22 July 2010 St Petersburg City Court held a brief hearing (allegedly, over fifteen minutes). The applicant ’ s lawyer submitted arguments opposing the extradition order with reference to a risk of ill-treatment in Belarus. The court upheld the extradition order of 2 October 2009. It stated:

“[The applicant ’ s] arguments relating to human-rights violations in Belarus are unsubstantiated and have no objective confirmation. He submitted no substantiated information that he would be subjected to persecution on the ground of race, religious or political beliefs or opinions, nationality, ethnic origin or membership of a specific social group.

[The applicant] has not claimed asylum in Russia ... There are no grounds mentioned in Article 464 of the Code of Criminal Procedure to block the extradition ... There is no final judgment by a Russian court establishing obstacles for extraditing [the applicant], on account of the Russian legislation or Russia ’ s international treaties.”

On 29 September 2010 the Supreme Court of Russia upheld the judgment. The appeal court stated as follows:

“Russian law makes provision for situations in which a criminal judgment may be issued without the defendant ’ s participation at the trial. This does not contravene international law. It transpires that a lawyer had participated at the trial ...

[The applicant] was convicted of taking a bribe and forgery of an official document. Thus, his arguments concerning violations of human rights in Belarus are unsubstantiated.”

The applicant went into hiding and, apparently, was then apprehended and extradited to Belarus on unspecified date in 2011.

B. Relevant domestic law and practice

1. Russia

(a) Grounds for opposing an extradition order

Under Article 464 of the Code of Criminal Procedure extradition was to be refused where the person was a Russian citizen or had been granted asylum in Russia on account of a possible persecution on the ground of race, religious beliefs, on account of his membership of a particular social group or on account of his political views. Extradition was to be refused where there was a final judgment “impeding extradition on account of the provisions of Russian legislation or international treaties of the Russian Federation”. According to ruling no. 11 of 14 June 2012 by the Plenary Supreme Court of Russia, extradition may be refused where exceptional circumstances of the case disclose a threat to the person ’ s life and limb; on judicial review the prosecutor bears the burden of substantiating the absence of serious grounds for a risk of ill-treatment (paragraphs 13 and 14 of the Ruling).

The Refugees Act (Federal Law no. 4528-1 of 19 February 1993) defined a “refugee” who had substantiated grounds to fear to a victim of persecution on account of race, religious or political beliefs or opinions, nationality, ethnic origin or membership of a social group (section 1). The Act provided at the relevant time that an application for refugee status was to be declared inadmissible if the foreigner had left the country of nationality for reasons unrelated to the above grounds and did not wish to return the country of origin on account of a fear to serve a sentence for an offence committed there (section 5 of the Act). Receiving the inadmissibility decision and lodging no appeal, the foreigner had one month to leave the country or could be expelled.

Furthermore, at the relevant time the Refugees Act provided for a so-called “temporary asylum” procedure (section 12 of Act). Such temporary asylum could be granted to a foreigner when ( i ) he had grounds for claiming a refugee status but only claimed temporary asylum, (ii) he had no grounds for a refugee status but the consideration of humane treatment pleaded against his removal from the country. The humane considerations could arise in relation to a serious medical condition or another compelling situation until its resolution. The grant of temporary asylum, which was valid for up to one year with a possibility of renewal, prevented removal from Russia to the country of nationality, against the foreigner ’ s will.

(b) Detention

Section 33 of the Custody Act (Federal law no. 103-FZ of 15 July 1995) provided at the relevant time that suspects and accused in criminal proceedings were to be kept separately from the people already convicted of the criminal offences by final judgments.

2. Belarus

Under the Belarusian Code of Criminal Procedure of 1999 (which was applicable during the material time), the defendant ’ s presence during the trial proceedings was mandatory, except when the defendant had left Belarus and had been evading the trial (Article 294 of the Code).

Under Law no. 3514-XII of 13 January 1995 district, town and regional judges were appointed by the President of Belarus (section 7 of the Law). Judges could be removed from office for a premediated violation of legality or for an act that was incompatible with their high status (section 72). The removal decision was to be issued by the appointing authority, taking into account the report issued by the competent judicial qualification board.

C. Documents relating to the human-rights situation in Belarus

1. United Nations documents

General Assembly, Report of the Special Rapporteur on the situation of human rights in Belarus (A/HRC/4/16, 15 January 2007):

“The Special Rapporteur regrets that the Government of Belarus, in 2006 as in 2004 and 2005, has not responded favourably to his request to visit the country and has in general not cooperated with him in the fulfilment of his mandate. ...

10. Systematic violations of civil and political rights and the deprivation of Belarusian citizens ’ right to effectively take part in the conduct of public affairs continue to be observed. Human rights protection mechanisms remain extremely weak, and there is no national human rights institution. The judicial system is still subservient to the executive branch and there is no genuine independent legislative branch. ...

13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pre-trial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police. ...”

General Assembly, Resolution on situation of human rights in Belarus (A/RES/62/169, 18 December 2007):

“[The Assembly] [e] xpresses deep concern:

(a) About the continued use of the criminal justice system to silence political opposition and human rights defenders, including through arbitrary detention, lack of due process and closed political trials of leading opposition figures and human rights defenders;

(b) About the failure of the Government of Belarus to cooperate fully with all the mechanisms of the Human Rights Council, in particular with the Special Rapporteurs on the situation of human rights in Belarus, while noting the serious concern relating to the continued and systematic violations of human rights in Belarus ...”

2. Other documents

For some other material, see various references and citations in the Court ’ s judgments in the following cases: Y.P. and L.P. v. France , no. 32476/06 , §§ 38-43, 2 September 2010, and Kozhayev v. Russia , no. 60045/10 , §§ 55-59, 5 June 2012.

COMPLAINTS

The applicant complains that he was exposed to a risk of ill-treatment in Belarus, in breach of Article 3 of the Convention. He also argues that he had no effective remedies for his grievance, in breach of Article 13 of the Convention.

The applicant alleges under Article 5 of the Convention that his detention between August and November 2009 was unlawful, in particular, in that the prosecutor was not competent to order detention; there was no detention order between September and November 2009; it was against Russian law to keep the applicant together with convicted people. The applicant also submits that he had no enforceable right to compensation on account of unlawful detention.

The applicant further argues that judicial review of the decision of 10 August 2009 was neither speedy nor effective; there was no procedure in which the court would be empowered to order his release between August and November 2009.

Lastly, the applicant alleges that the judgment issued by the Belarusian court amounted to a flagrant denial of justice and that his extradition for serving the prison term on the basis of this judgment violated Article 6 of the Convention; the charges against him were “fabricated”; the trial judgment was issued in his absence and without a possibility of a retrial while the Belarusian authorities submitted no related assurances in this respect; he was not represented by counsel at the trial; counsel was not afforded an opportunity to appeal against the trial judgment; the Belarusian judges lacked independence, in particular because they were appointed and removed from office by the President of Belarus. Lastly, the applicant complains that his above arguments were not examined by Russian authorities.

QUESTIONS TO THE PARTIES

1.1. In the light of the applicant ’ s specific claims before the national authorities and the Court, did he face a risk of being subjected to ill ‑ treatment at the hands of Belarusian public officials in breach of Article 3 of the Convention?

1.2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention? In particular:

- Had the applicant been given a possibility to make submissions to the Russian Prosecutor General ’ s Office (PGO) before the decision on the Belarusian extradition request was taken? Did the applicant use this opportunity? Did Russian law require the PGO to take into account the relevant factual and legal issues relating to a risk of ill-treatment in the requesting country? Were any such issues examined by the PGO or on judicial review against the extradition order?

- Was the substantiated risk of ill-treatment in the requesting country considered under Russian law – at the relevant time – as a legal bar to an extradition order or to its enforcement? If yes, what was the statutory basis in the Code of Criminal Procedure for such an approach?

2. Was there a violation of Article 5 § 1 of the Convention on account of the applicant ’ s detention between August and November 2009?

3. Was there a violation of Article 5 § 4 of the Convention?

4. Was there a violation of Article 5 § 5 of the Convention in relation to the applicant ’ s complaint under Article 5 § 1?

5.1. In view of the specific arguments relating to the unfair trial in Belarus and the alleged unavailability of a retrial option on account of the judgment issued in absentia by the Belarusian court in 2005, did the Russian authorities violated Article 6 of the Convention on account of the extradition decision exposing the applicant to the serving of the prison term resulting from a flagrant denial of justice (see Othman (Abu Qatada) v. the United Kingdom , no. 8139/09, §§ 258-262, ECHR 2012 (extracts), and Husayn (Abu Zubaydah ) v. Poland , no. 7511/13, §§ 552-554, 24 July 2014 )? Did the Russian authorities, including the courts, give a proper examination to the relevant factual and legal aspects of the case, in line with the applicable principles under Article 6 of the Convention (see Sanader v. Croatia , no. 66408/12 , §§ 67-71, 12 February 2015)?

5.2. Was there a violation of Article 13 of the Convention in relation to the above complaint? Did Russian courts have competence to prevent enforcement of an extradition order on account of the arguments relating to the manifest unfairness of the criminal conviction of the applicant in the requesting country or on account of the unavailability of a retrial following a criminal conviction in absentia ?