2010 03/12
Андрэй Елісееў

Andrej Jelisiejeu

More that a half of cases from Belarusian citizens examined by European Court of Human Rights is about extradition. This article is a review of such kind of claims which were not examined by European Court.

The Court was adopting either decision that the claims were inadmissible because of insufficiency, or was stroking them off the roll because of different reasons: applicant’s death, absence of intention to continue the action or the applicant’s withdrawal of the action.

“Hardzieyau vs. Poland”: the claim of Belarusian citizen to the European Court.

The first appeal of Belarusian citizen Hardzieyau was filed to ECHR in 1998 (“Hardzieyau vs. Poland” [1]), but the appeal was recognized to be unacceptable because of insufficiency. In June 1997 Procuracy of Brest region issued a writ against Uladzimier Hardzieyau (born 1957) on authority of accusation in document forgery and sale of a stolen car. A month later he was arrested in Warsaw and went to trial to district court which adopted the decision to arrest Uladzimier pending detention decision.

Uladzimier Hardzieyau took several appeals to Polish authorized bodies and presented a report of Belarusian Helsinki committee about human rights violation in Belarus in the period of December 1997 to January 1998. He claimed that his criminal persecution was a government’s revenge for his opposition activity and charges were fabricated rested upon deceitful testimonies of a former KGB officer.

The Belarusian claimed that he has been a member of BNF Party for many years and even got a silver medal for his activity in the party. Polish Ministry of Foreign Affairs made independent inquiry and didn’t find confirmation of these facts.

Numerous appeals to release Hardzieyau at least on bail were gone against on reason of Belarusian investigators’ statements were supported by confirming evidences and there was risk of Hardzieyau escaping from justice. Since Uladzimier Hardzieyau has filed a petition on receiving asylum, Polish competent authorities had to proceed his detention several times until the petition has been examined. It lasted for almost three years. In April 2000 Hardzeyeu was extradited to Belarus.

In his complaint to ECHR Uladzimier Hardzieyau noted that if Poland sends him to Belarusian authorities, it will violate articles 3 [2] and 6 § 1 [3] (right for fair trial) of the Convention. Moreover, he stated that his arrest was lawless and it exceeded reasonable duration of arrest (article 5 §§ 1 and 3) and his correspondence was opened and kept back (article 8).

The court noted that the procedure of extradition lasted for so long because of the appeal about asylum was examined more than 2 years and 3 months. Taking into consideration the fact that a proper examination of the appeal was interesting for the applicant, the procedure of extradition can’t be considered as unreasonably long, stated European Court.

ECHR noted that the risk to be treated contrary to article 3 is evaluated not only grounding on the whole situation in the country, but through individual grounds to be beware of such treatment. It appeared the facts about relations with political opposition were out-of-true. Uladzimier Hardzieyau couldn’t tell much about the party (BNF Party) which he was recon himself among to. He also didn’t give any facts which could prove that Polish organs were interfering into his correspondence.

As a consequence, the Court didn’t find any violations of Convention’s articles listed in the application and recognized Uladzimier Hardzieyau’s appeal unacceptable.

“Stankievich vs. Ukraine” and “Kulikousky vs. Ukraine”: complaints of Belarusian entrepreneurs

Entrepreneur Yan Stankievich [4] (born 1970) lived in the Ukraine. In June 2007 the Procuracy General of Republic of Belarus sent a request to Ukrainian colleagues for Statkievich’s extradition. He was suspected of smuggling and illegal entrepreneurial activity. The Belarusian was arrested and the court’s decision was to keep him in custody until the decision of extradition.

In July Procuracy General of the Ukraine determined extradition but had to postpone it by the request of ECHR. In a year the applicant died and the claim was continued by his brother.

Yan Stankievich complained to European court about violation of articles 3, 6(1) [5], 5 §1 [6] (illegal arrest and detention), §4 (absence of opportunity to lodge a complaint about arrest and detention) and §5 (absence of opportunity to get compensation for lawless detention) and also articles 13 (right for effective remedy) [7] of the Convention.

The court stated that violation of articles 3 and 6 after applicant’s death became hypothetic. Both of the articles were connected with personal risks and grounds for preferring claims basing on the articles listed above disappear. Therefore the necessity of examination of violations of right for effective human right defense (article 13) disappeared.

What considers examination of violations according article 5, the Court stated that in some cases relatives can continue trials after applicant’s death. But some other criteria must be taken into account: whether it is lawful to convey rights noted in the application. ECHR stated that rights in the frame of article 5 “have too close relations to the real applicant, so they can’t be conveyed”.

Consequently, the appeal was excluded from the list of cases but the Court stressed that it wasn’t pleased with Ukrainian legislation in the field of arrest fro further extradition.

The complaint of Andrey Kulikousky [8] is quite similar but it was excluded from the list of cases by the wish of the applicant.

In January 2007 the Committee of State Control accused Andrey Kulikousky in presenting untruthful information with intent to get bank credit. In November he was arrested by Kiev police on authority of warrant of arrest of Minsk Town Procuracy.

Andrey Kulikousky left Belarus in December 2006 stating that he was victim of permanent threats from the authorities for his opposition activity. He presented a copy of a letter from the chairman of United Civil Party which proved his participation in picketing and financial support of opposition literature.

Andrey Kulikousky complained grounding on articles 3, 6, 13, 5 §§ 1,4 and 5 of the Convention. But in July 2008 he informed the Court about revocation of his complaint. He didn’t explain this decision. Representatives of Andrey Kulikousky also confirmed the intention to drop the complaint. Grounding on these facts the Court has excluded the complaint from the list of cases for further examination.

“Anhelava vs. Russia”: unproved accusations of Minsk tractor plant worker

Liudmila Anhelava [9] (born 1950) worked in a marketing department of Minsk tractor plant. In January 2001 she was sent to duty journey to Egypt for two years. But in February 2002 Procuracy initiated a criminal case for Liudmila suspecting her in getting a bribe and she was called away from her duty journey. When returning from Egypt, the Belarusian got to hospital in Moscow.

In March 2002 Liudmila was accused by Procuracy in bribe-taking and in March she was arrested in Moscow and put to the pre-trial detention ward. In May 2002 the Belarusian was extradited and she got to Minsk detention center. And in April 2004 the criminal case against Liudmila was stopped because of absence of components of crime.

The complaint to European Court was grounded on violations of the same paragraphs: 1, 3 and 4 of article 5 of the European Convention on Human Rights and Freedoms.

Later the case was excluded from the list of case for the further examination because Liudmila Anhelava didn’t continue the procedure and didn’t present her remarks to comments of Russian government in time.

“Bachkou vs. Russia”: with Belarusian translator in Moscow court

In February 2003 Procuracy issued a writ against Mahiliou native Hvedar Bachkou [10] (born 1961) suspecting him in armed robbery. His name was added to the list of those who hide from justice.

In a month Hvedar was arrested in Moscow. Russian Procuracy got a request from Belarusian colleagues in which Bachkou was accused of participation in organized criminal group, robbery and illegal possession of arms.

When lodging a complaint against the decision of extradition in a Moscow regional court, Hvedar Bachkou asked for Belarusian-Russian translator. Later Moscow Town court supported the decision to keep the Belarusian in cistady and in June 2003 he was extradited to Belarus.

Hvedar Bachkou complained to European Court grounding on article 5 §§ 1-4 and also article 6 because of unsatisfying quality of translation during Moscow court sessions and violation of the procedure of extradition. He also complained on absence of effective remedy (article 13) and discrimination on the national grounds (article 14 [11]). Moreover, Hcedar Bachkou stated that he had been extradited before his claim was examined and therefore he hadn’t have a chance to present at the hearings in Russian higher court instances (article 1 of Protocol#7).

The complaint of the Belarusian was excluded from the list of cases examined because Bachkou didn’t present his written comments in the terms provided by the European court.

Andrey Eliseeu

Master of International and European Law

(Riga law high school)

Material prepared for publication by

Ales LETA

Belarusian Legal Portal

by.prava-by.info

References in the text:

[1] Decision as to the admissibility of the case Gordyeyev v. Poland. Applications nos. 43369/98 and 51777/99, 3 May 2005. Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=774815&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[2] No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
[3] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
[4] Stankevich v. Ukraine decision. Application no. 48814/07, 26 May 2009. Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=851644&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[5] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
[6] 5 § 1: ” Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
5 § 4: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”.
5 § 5: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”.
[7] Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention.
[8] Kulikovkiy v. Ukraine decision. Application no. 50063/07, 4 November 2008. Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843729&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.
[9] Angelova v. Russia decision. Application no. 37912/02, 11 December 2008, Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=846054&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[10] Bochkov v. Russia. Application no. 25102/03, 3 July 2008. Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=839339&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[11] The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

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