Information Note on the Court’s case-law No. 112

October 2008

Soldatenko v. Ukraine - 2440/07

Judgment 23.10.2008 [Section V]

Article 3

Extradition

Risk of ill-treatment if extradited to Turkmenistan : extradition would constitute a violation

Article 5

Article 5-1-f

Extradition

Lack of a sufficiently accessible, precise and foreseeable procedure under Ukrainian law to avoid arbitrary detention pending extradition: violation

Facts : At the time the application was lodged, the applicant was detained in a Ukrainian penal institution, awaiting extradition to Turkmenistan. His lawyer claimed that he was stateless, whereas the Government stated that he was a Turkmen national.

In 1999 the Turkmen authorities had issued an indictment against the applicant ordering his arrest on charges of inflicting bodily injuries. The applicant left Turkmenistan, allegedly to flee persecution to which he had been subjected on ethnic grounds, and has resided ever since in Ukraine. On 4 January 2007 he was arrested by the Ukrainian police and informed that his arrest had been made in accordance with an international search warrant issued by the Turkmen authorities that same day. Six days later he was brought before a district court judge, who ordered his detention pending extradition. On 15 January 2007 the applicant requested the ECHR to issue an interim measure under Rule 39 of the Rules of Court. A day later, the President of the competent Chamber granted this request and indicated to the Ukrainian Government that the applicant should not be extradited to Turkmenistan pending the Court’s examination of his case.

On 19 January 2007 the General Prosecutor’s Office of Turkmenistan requested the applicant’s extradition with a view to his prosecution for the offences of which he was charged. It also gave certain assurances and affirmed that he would not be discriminated against on grounds of social status, race, ethnic origin or religious beliefs. In a letter of 19 April 2007 the First Deputy Prosecutor General of Turkmenistan gave further assurances, notably that the applicant’s rights under Articles 3 and 6 of the European Convention would be guaranteed.

Under the 1993 Minsk Convention regulating legal assistance in criminal matters, to which both Ukraine and Turkmenistan are parties, a person may be detained with a view to extradition on the basis of a petition on behalf of one of the Contracting States even before receipt of an official extradition request.

Law : Article 3 – At the outset the Court noted the existence of numerous and consistent credible reports of torture, routine beatings and use of force against criminal suspects by the Turkmen law-enforcement authorities. There were reports of beatings of individuals to the point of requiring medical treatment and of denied medical assistance. According to the Report of the United Nations Secretary-General, torture was also inflicted as a punishment for persons who had confessed. Reports equally noted very poor prison conditions, including overcrowding, poor nutrition and untreated diseases. It appeared from different reports that allegations of torture and ill-treatment were not investigated by the competent Turkmen authorities. On the other hand, from the materials available there was no evidence that criminal suspects of non-Turkmen origin were treated differently from ethnic Turkmens. Nevertheless, it was clear from the available materials that any criminal suspect held in custody ran a serious risk of being subjected to torture or inhuman or degrading treatment. Despite the fact that the applicant was wanted for a relatively minor offence which was not politically motivated, the mere fact of being detained as a criminal suspect in such a situation provided sufficient grounds to fear that he would be at serious risk of being subjected to treatment contrary to Article 3 of the Convention. With regard to the assurances given by the Turkmen authorities, it was not established that the officials concerned had been empowered to give such undertakings on behalf of the State. Furthermore, given the lack of an effective system of torture prevention, it would be difficult to ascertain whether such assurances were complied with. Finally, international human rights reports had also shown serious problems as regards the international cooperation of the Turkmen authorities in the field of human rights and their categorical denials of human rights violations despite consistent information to the contrary from both intergovernmental and nongovernmental sources.

Conclusion : extradition would constitute a violation (unanimously).

Article 5 §§ 1 (f) and 4 – Even though the Minsk Convention, being part of the domestic legal order, was capable of serving as a legal basis for extradition proceedings and for detention with a view to extradition, Article 5 § 1 (f) of the Convention further required that detention with a view to extradition should be effected “in accordance with a procedure prescribed by law”. In the present case, under Ukrainian law there were no specific legal provisions – whether in the Code of Criminal Procedure or in any other legislative instrument – that provided, even by reference, a procedure for detention with a view to extradition. Even though the Plenary Supreme Court by its 2004 resolution had advised the lower courts to apply certain general provisions of the Code of Criminal Procedure to extradition proceedings, its resolutions did not have the force of law and were not legally binding on the courts and the law-enforcement bodies involved in extradition proceedings. The above considerations were sufficient for the Court to establish that Ukrainian legislation did not provide for a procedure that was sufficiently accessible, precise and foreseeable in its application as to avoid the risk of arbitrary detention pending extradition.

Conclusion : violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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