2011 03/06
Андрэй Ялісееў

Andrej Yalisiejau

This publication is a continuation of the review of complaints of citizens of Belarus in the sphere of extradition, which were considered by the European Court on the merits.

“Koktysh against Ukraine”: violation of three articles of the Convention

Case “Koktysh against Ukraine” [1] – the only case concerning the extradition, in which the ECHR found a violation of Article 3 in case of extradition to Belarus.

In December 2001, the Brest Regional Court declared Igor Koktysh (born 1980) not guilty in the murder and robbery, for which he was threatened with punishment up to death. Belarusian court found that during the investigation against Igor, methods of physical and psychological pressure to force a confession were used. In February 2002, the Supreme Court upheld the decision.

However, in May of that year, during the emergency procedures of prosecutor’s protest, the Supreme Court reversed previous decisions and the criminal investigation had been reopened.
The same year Igor Koktysh moved to Ukraine and later married.

In June 2007 he was arrested by Ukrainian militia under a warrant issued by the Belarusian side. From late June Igor Koktysh was held in Sevastopol temporary detention centre. The conditions there were very bad: in a small dirty cell with no ventilation and adequate lighting, with two bunks, there were about 20 people. Most of them smoked, but Igor wasn’t provided with medicines for his asthma. In early July, it was transported to the Sevastopol prison. Conditions of detention there were a bit better.

On October 8, Igor Koktysh complained to the European Court about violation of the right to liberty and security (Article 5 § § 1, 4, 5), Articles 3 and 6 (conditions of detention and transportation). He also argued that if extradited to Belarus can be subjected to capital punishment, which is violation of Article 2. It would also result Articles 3 and 6 (the risk of unfair trial).

The court analyzed the situation of human rights in Belarus and came to the conclusion that torture and ill-treatment were documented, and there were also serious problems with international cooperation of Belarus in the sphere of human rights. The court noted that it could not assume the possible outcome of the trial over the applicant in Belarus, but the actual Belarusian courts first stated the evidence of improper handling of Igor Koktysh.

“The simple possibility of the death penalty against the applicant and an unfair trial, taking into account the previous cancellation of the final decision [by Belarusian courts] are sufficient to conclude that this situation is equivalent to moral suffering in the range of Article 3″ [2]

The Court considered that there was no need to consider a violation of articles 2 and 6. Judges of European Court also found violations of Articles 3 and 13 relating to prison conditions and transportation, based on reports by Ukrainian Commissioner for Human rights and the Committee for the Prevention of torture of the Council of Europe. There also violations of Article 5 § § 1, 4 and 5 were found, because the Ukrainian legislation lacks provisions about detention for further procedures of extradition procedure and revision of laws of such detention., Ukrainian law does not also provide any right to compensation for such violations. ECHR decreed Ukrainian government to pay Igor Koktysh 7,000 Euro for non-pecuniary damage.

“Puzan against Ukraine”:

Another recent case of a Belarusian citizen regarding to extradition, in which the complaint under Article 3 was declared admissible is “Puzan against Ukraine” [3].

In September 2008, Dmitry Puzan (born 1980) was arrested by Ukrainian militia. Dmitry was held in Sevastopol jail, awaiting his extradition to Belarus. He was accused of illegall purchasing of psychotropic drugs.

Prior to that, in Belarus, Dmitri Puzan has been twice convicted for crimes related to drugs. For example, in 2004 he was sentenced to 4 years and 3 months in prison, served part time and was released earlier because of the amnesty.

In October 2008, the Belarusian complained to the European Court, and the court ordered Ukraine to wait with extradition until the hearing in the Court on the basis of Rule 39.

Dmitry Puzan complained basing of the same articles of the Convention, tha Igor Koktysh did: 3, 6 § 1, 13 in the case of extradition, as well as 5 § § 1 (f) and 4 (right to liberty and security). He claimed to have been illegally detained and had no opportunity to challenge the lawfulness of his detention. In addition, Dmitri Puzan complained about violation of Article 34 relating to interference with his right to appeal (if the attorney kept him from filing a complaint to the European Court).

Unlike the case of Igor Koktysh, Dmitry Puzan did not prove improper treatment by the judicial or prison authorities of Belarus. He also did not prove his relation to any of the vulnerable groups of the society. The court pointed out that the available international documents indicate serious problems in the field of human rights in Belarus, but it considered unproven the existence of the personal circumstances:

“… A reference to a common problem situation with human rights in a particular country may not serve a basis for denying extradition. So, the Court notes that the applicant does not show his relations with a political opposition, which is recognized as a particularly vulnerable group in Belarus, or with any other similar group.
He also does not refer to any other individual circumstances that would have reinforced the fears about ill-treatment and unfair trials “[4]

The court found no evidence of violation of Article 34 of the Convention, but admitted violation of paragraphs 1 and 4 of Article 5 in connection with the imperfection of the Ukrainian legislation in the sphere of detention for the further extradition. Dmitry Puzanov was adjudged 5,000 Euro as a non-pecuniary damage and 523 euro for the court costs.

“Galeev against Russia”: a man with questionable citizenship

Dmitry Galeev [5] (born in 1974) on the basis of Articles 3 and 5 of the Convention complained to the European Court extradition to Belarus poses a risk of inhuman treatment and that his detention in Russia for the subsequent extradition was lawless.

Dmitry was born in Minsk region, and in 1992 moved with his father to the Republic of Tatarstan. He had a Soviet passport issued by the USSR in 1990. In 1993 – 1996 and from 1998 to 2004 Dmitry Galeev served two prison terms in Belarus. After his release, he moved to the Kursk region, in Russia, and in 2004 received a Russian passport.

In August 2005 in Belarus criminal charges against Dmitry Galeev was filed about the extortion of 18 thousand dollars from a private person in 2003. In December 2005 he was arrested in Moscow, but by the decision of the Federal Migration Service (FMS) the extradition was denied.

After this, however, Samara regional court (at the time, Dmitry Galeev lived in this area), decided that he had received Russian citizenship illegally, because he told nothing about the nationality of another State, and FMS cancelled its decision to grant Dmitry Russian citizenship.

Then there was suit in the Supreme Court of the Russian Federation on the legality of surrendering Dmitry Galeev to the Belarusian side. Finally, in September 2009, the Samara Regional Court rejected the prosecutor’s office to extend the term of imprisonment of Dmitry Galeev up to March 2010, and he was released.

To show the general situation of human rights in Belarus the court referred to the case of Puzan against Ukraine (no. 51243/08, § § 20-24, 18 February 2010). Turning to the circumstances of this case, the ECHR noted that:

“… Even though international reports have expressed concern about the human rights situation in Belarus, it mainly concerns the political opposition activists and political freedoms. In the case the applicant does not refer to fear of being mistreated because of his political views. In essence, the claims expressed on the subject are vague and not supported by facts … The Court also notes that the applicant has been convicted twice in Belarus, but has not specified in the complaint that the previous experience of prosecution contained facts that prove serious concerns about the improper treatment and unfair trial process in the future “[6]

Complaints about unjust deprivation of nationality (Article 6) and the conditions of detention pending extradition (Article 3) were found to be unsubstantiated. However, the Court held that the detention period from 11 November, 2008 to April 27, 2009 was illegal, that violated Article 5 § 1 of ECHR.

“Bordovsky against Russia”: no violations found

Gomel resident Igor Bordovsky [7] (born in 1967.) complained that his detention in Russia for the subsequent extradition was illegal and that he had not been properly informed of the reasons for his arrest and could not challenge his detention in court.

In 1996 the Attorney General’s Office opened a criminal case against the activities of the Asset Management Company, where Igor Bordovsky worked. In the frame of the case the Belarusian was interviewed twice. In February of 1997 he quit the job and moved to St. Petersburg.

The following summer he was arrested by Russian militia and was placed in a detention center. The fact was that Igor Bordovsky was in absentia charged by the Belarusian investigative bodies in large-scale embezzlement and fraud. His departure was regarded as a secretion of justice, and therefore a warrant for his arrest was issued.

Igor Bordovsky argued that he was not informed about the reasons for his detention by Russian police, and has not received official documents on this occasion. In his complaint to the European Court of Human Rights Igor Bordovsky claimed first learned about the nature of his accusation from the words of a senior investigator of Belarusian Prosecutor’s Office, who arrived in St. Petersburg for interrogation.

At the end of September 1998 the Russian prosecutors agreed to the extradition, and the next month Igor Bordovsky was surrendered to the Belarusian authorities. A year later, the district court of Homel condemned Igor Bordovsky to three years of probation with mandatory community service.

ECHR declared the Belarusian’s application admissible, but after considering it essentially found no violations of the Convention. First, the Court found no violations of internal procedure of extradition. He also considered that Igor Bordovsky was informed about the reasons for the detention, as he was notified about the prosecutors’ search.

With regard to judicial review, the Court found that the lawyer of Bordovsky didn’t really appeal to Russian courts about his detention. Copies of the documents presented to the Court did not have relevant dates and signatures. As a result, the court found no violations of any of the paragraphs of Article 5 of the Convention, according to which the application was declared admissible.

Andrey Yeliseev,
Master of International and European Law
Riga Law High School
The material prepared to publication by
Ales LETA,
Belarusian Legal Portal,
by.prava-by.info

References in the text:

[1] Koktysh v. Ukraine. Application no. 43707/07, 10 December 2009. Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=859542&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[2] ibidem, paragraph 62.
[3] Puzan v. Ukraine. Application no. 51243/08, 18 February 2010. Available at

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=863072&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

[4] ibidem, paragraph 34.
[5] Galeyev v. Russia. Application no. 19316/09, 3 June 2010. Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=869126&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
[6] ibidem, paragraph 55.
[7] Bordovskiy v. Russia. Application no. 49491/99, 8 February 2005. Available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=717675&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

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