EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF BORDOVSKIY v. RUSSIA
(Application No. 49491/99)
JUDGMENT <*>
(Strasbourg, 8.II.2005)
In the case of Bordovskiy v. Russia,
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr {R. Turmen} <*>,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mr A. Kovler,
Mrs A. Mularoni, judges,
and Mrs {S. Dolle}, Section Registrar,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 11 May and 18 January 2005,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (No. 49491/99) against
the Russian Federation lodged with the European Commission of
Human Rights ("the Commission") under former Article 25 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by a Belarusian national, Mr Igor
Aleksandrovich Bordovskiy ("the applicant"), on 19 October 1998.
2. The applicant was represented by Ms K. Moskalenko, a lawyer
practising in Moscow. The Russian Government ("the Government")
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that his detention in
Russia with a view to extradition to Belarus had been unlawful,
that he had not been informed promptly of the reasons for his
arrest, and that he had not been able to challenge his detention
before a court.
4. The application was transmitted to the Court on 1 November
1998, when Protocol No. 11 to the Convention came into force
(Article 5 з 2 of Protocol No. 11).
5. The application was allocated to the Second Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1. It has
remained with that Section, differently composed on 1 November
2001 and 1 November 2004, since.
6. By a decision of 11 May 2004, the Court declared the
application partly admissible.
7. The applicant and the Government each filed observations on
the merits (Rule 59 з 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 з 3 in fine), the applicant replied in writing to the
Government's observations.
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1967 and lives in Gomel, Belarus.
9. In 1995 the applicant worked in a private asset management
company.
10. In 1996 the General Prosecutor's Office of Belarus ("the
Belarusian GPO") carried out a criminal investigation into the
company's business. The applicant was twice questioned in the
course of the investigation.
11. In February 1997 the applicant quit his job and in July
1997 moved to St. Petersburg.
12. The Belarusian GPO considered the applicant's departure as
an attempt to abscond. For this reason, on 22 September 1997 the
Belarusian GPO charged the applicant in his absence with large-
scale fraud and embezzlement, and issued in his respect a
detention order and an international search and arrest warrant.
13. On 9 July 1998 the Russian police arrested the applicant in
St. Petersburg. According to the applicant, the policemen did not
inform him of the reasons for his arrest and failed to produce any
documents justifying it.
14. On 9 July 1998 the Russian National Bureau of Interpol sent
an urgent wire to its Belarusian counterpart. The Russian Bureau
requested confirmation that the applicant was still wanted by the
Belarusian authorities and inquired whether the Belarusian
authorities planned to request his extradition.
15. On 11 July 1998 the Russian authorities interviewed the
applicant. In the course of the interview, the applicant wrote
explanations in which he provided certain details about the
investigation in Belarus, his questionings and departure to
Russia. The applicant noted that, until his arrest, he had not
known that the Belarusian authorities had been searching for him.
16. On 13 July 1998 the applicant was placed in a temporary
detention unit of the St. Petersburg Police Department.
17. On 16 July 1998 the Belarusian GPO sent to the General
Prosecutor's Office of Russia ("the Russian GPO") a formal request
for the applicant's extradition, pursuant to Article 56 of the CIS
<*> Convention on Legal Assistance in Civil, Family and Criminal
Cases. On 4 August 1998 the Russian GPO received this request.
--------------------------------
<*> The Commonwealth of Independent States.
18. On 27 July 1998 the Belarusian National Bureau of Interpol
replied to its Russian partner's wire of 9 July 1998 and requested
the applicant's detention pending the extradition proceedings.
19. On 13 August 1998 a senior investigator of the Belarusian
GPO interrogated the applicant for the first time, having come for
this purpose from Minsk. The investigator informed the applicant
about the nature of the accusation against him but did not serve
formal charges.
According to the applicant, it was not until then that he was
for the first time informed - albeit only orally - about the
charges.
20. On 20 August (19 August, according to the Government) 1998,
the applicant was transferred to Remand Centre IZ-47/4 in St.
Petersburg.
21. According to the applicant, in August - November 1998 his
lawyer lodged three applications for his release: on 18 August
1998 with the Dzerzhinskiy District Court of St. Petersburg, on 27
August 1998 with the Kalininskiy District Court of St. Petersburg,
and on 2 November 1998 with the St. Petersburg City Court. These
applications were made pursuant to Article 220-1 of the Code of
Criminal Procedure which provided for the judicial review of
detention on remand.
According to the Government, the applicant's lawyer did not
lodge these applications.
22. On 25 September 1998 the Russian GPO agreed to extradite
the applicant.
23. On 5 October 1998 the St. Petersburg Prosecutor's Office
informed the applicant's lawyer that, on 11 August 1998, the
Russian GPO had ordered the applicant's continued detention
pending the extradition proceedings, pursuant to the request of
the Belarusian authorities and because the applicant was not a
Russian citizen.
24. On 25 October 1998 the applicant was re-located to Remand
Centre No. 1 in Smolensk.
25. On 17 November (12 November, according to the Government)
1998 he was handed over to the Belarusian authorities.
26. On 24 November 2000 the Zheleznodorozhnyi District Court of
Gomel convicted the applicant and sentenced him to three years'
suspended imprisonment with compulsory community work.
II. RELEVANT DOMESTIC LAW
A. CIS Agreement on crime control
27. Russia and Belarus are members of the CIS. On 24 April 1992
the Ministries of Internal Affairs of the CIS signed an Agreement
on Co-operation in the Sphere of Crime Control ("the Agreement on
Crime Control"). Section 6 of that Agreement provides as follows:
"A Party shall, with regard to its internal legislation, assist
another Party who requests:
(a) the arrest of a person who evades investigating
authorities, trial or serving a sentence, or the detention of such
a person if necessary;
(b) the extradition of a person for criminal prosecution or for
serving a sentence."
B. CIS Convention on legal assistance
28. On 22 January 1993 the Independent States signed a
Convention on Legal Assistance in Civil, Family and Criminal Cases
("the Convention on Legal Assistance"), which provided as follows:
Article 56. Obligation of extradition
"1. The Contracting Parties shall... on each other's requests
extradite persons, who find themselves in their territory, for
criminal prosecution or serving a sentence.
2. Extradition for criminal prosecution shall extend to
offences which are criminally punishable under the laws of the
requesting and requested Contracting Parties, and which entail at
least one year's imprisonment or a heavier sentence."
Article 58. Request for extradition
"1. A request for extradition (требование о выдаче) shall
include the following information:
(a) the title of the requesting and requested authorities;
(b) the description of the factual circumstances of the
offence, the text of the law of the requesting Contracting Party
which criminalises the offence, and the punishment sanctioned by
that law;
(c) the [name] of the person to be extradited, the year of his
birth, citizenship, place of residence, and, if possible, the
description of his appearance, his photograph, fingerprints and
other personal information;
(d) information concerning the damage caused by the offence.
2. A request for extradition for the purpose of criminal
persecution shall be accompanied by a certified copy of a
detention order. ..."
Article 61. Arrest or detention before the receipt of a request
for extradition
"1. The person whose extradition is sought may also be arrested
before receipt of a request for extradition, if there is a related
petition (ходатайство). The petition shall contain a reference to
a detention order... and shall indicate that a request for
extradition will follow. A petition for arrest... may be sent by
post, wire, telex or fax.
2. The person may also be detained without the petition
referred to in point 1 above if there are legal grounds to suspect
that he has committed, in the territory of the other Contracting
Party, an offence entailing extradition.
3. In case of [the person's] arrest or detention before receipt
of the request for extradition, the other Contracting Party shall
be informed immediately."
Article 61-1. Search for a person before receipt of the request
for extradition
"1. The Contracting Parties shall... search for the person
before receipt of the request for extradition if there are reasons
to believe that this person may be in the territory of the
requested Contracting Party. ...
2. A request for the search... shall contain... a request for
the person's arrest and a promise to submit a request for his
extradition.
3. A request for the search shall be accompanied by a certified
copy of... the detention order. ...
4. The requesting Contracting Party shall be immediately
informed about the person's arrest or about other results of the
search."
Article 62. Release of the person arrested or detained
"1. A person arrested pursuant to Article 61 з 1 and Article 61-
1 shall be released... if no request for extradition is received
by the requested Contracting Party within 40 days of the arrest.
2. A person arrested pursuant to Article 61 з 2 shall be
released if no petition issued pursuant to Article 61 з 1 arrives
within the time established by the law concerning arrest."
Article 67. Handing over the person to be extradited
"The requested Contracting Party shall inform the requesting
Contracting Party about the place and time of the hand-over. If
the requesting Contracting Party does not take the person to be
extradited within 15 days after the fixed date for handing over,
the person shall be released."
C. Code of Criminal Procedure
29. Pursuant to Article 220-1 of the Code of Criminal Procedure
of 1960 ("the CCrP"), in force at the material time, a remand
prisoner could apply for a judicial review of his pre-trial
detention.
D. Criminal law of Belarus
30. Article 91 з 4 of the Criminal Code of Belarus 1960, in
force at the material time, provided that appropriation or
embezzlement of third parties' property of which the defendant had
custody, or appropriation of the property by abuse of office,
committed on several occasions, in concert with others and on a
large scale, was punishable by 8 to 15 years' imprisonment, the
confiscation of property and a prohibition on holding certain
offices or on taking up certain activities for a period of 3 to 5
years.
THE LAW
I. Alleged violation of Article 5 з 1 of the Convention
31. The applicant complained under Article 5 з 1 of the
Convention that his detention pending extradition was unlawful
because the relevant domestic procedure had not been respected and
because the procedure itself had not been sufficiently clear.
Article 5 of the Convention, as far as relevant, reads as follows:
"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 unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or
extradition."
A. Arguments of the parties
1. The Government
32. The Government submitted that the applicant's arrest and
detention complied with this provision.
33. According to them, the applicant was detained pursuant to
section 6 of the Agreement on Crime Control on the basis of a
detention order issued by the Belarusian GPO. Since the applicant
was a citizen of Belarus, he was extradited in accordance with the
Convention on Legal Assistance. Pursuant to Article 56 з 2 of that
Convention, a person could be extradited if he or she faced
charges punishable with at least one year's imprisonment. Pursuant
to Article 60 of the Convention on Legal Assistance, the State had
to arrest the person in question as soon as a request for
extradition was received. The Russian authorities acted in full
compliance with these provisions.
34. As to the clarity of the procedure, Article 62 з 1 of the
Convention on Legal Assistance unequivocally fixed the maximum
duration of a person's detention pending extradition proceedings.
According to this provision, the detainee had to be released if no
request for extradition was received within 40 days of the arrest.
2. The applicant
35. The applicant insisted that his detention was not "lawful"
within the meaning of the Convention case-law.
36. The conditions laid down in Articles 58 to 62 of the
Convention on Legal Assistance were not fulfilled. In particular,
a person should normally be arrested on the basis of a request for
extradition, but nothing showed that any such request had been
received by the Russian authorities before the applicant's arrest.
Nor had the Belarusian authorities submitted a petition which
could have justified the applicant's arrest before receipt of a
request for extradition. In the absence of these documents, he
could only be arrested if the Russian authorities had reason to
suspect that he might have committed an offence in Belarus.
However, there were no such reasons. The Belarusian detention
order could not serve this purpose because Belarus and Russia were
independent States with their own rules of criminal procedure. In
any event, if the applicant had been arrested on a suspicion and
no request for extradition had been received, he should have been
released after 72 hours - the maximum period for the detention of
criminal suspects laid down in the Russian law.
37. Section 6 of the Agreement on Crime Control did not set out
in sufficient detail the procedure for detention with a view to
extradition. Hence, he could not regulate his behaviour or foresee
the consequences that a given action might entail.
38. Furthermore, the Convention on Legal Assistance provided no
time-limits for detention and the applicant hence remained unaware
of his fate until his extradition.
39. Lastly, the applicant commented that in 1997 - 98 he had
travelled from Belarus to Russia and back several times, which
would have been impossible if he had been evading the Belarusian
authorities.
B. The Court's assessment
40. The applicant's complaint includes two distinct parts:
first, he alleges that the domestic procedure of extradition was
not respected and, second, that the law governing the procedure
was not sufficiently precise. The Court will deal with these
allegations consecutively.
1. Compliance with domestic law
41. The Court reiterates that to be "lawful", detention must
not only conform with the domestic law but also with the purpose
of the restrictions permitted by Article 5. This is required in
respect of both the ordering and the execution of the measures
involving deprivation of liberty. As regards conformity with
domestic law, the term "lawful" covers procedural as well as
substantive rules. There thus exists a certain overlap between
this term and the general requirement stated at the beginning of
Article 5 з 1, namely the observance of "a procedure prescribed by
law" (see Winterwerp v. the Netherlands, judgment of 24 October
1979, Series A No. 33, з 39).
42. The Court further reiterates that as these terms
essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof, it is in
the first place for the national authorities, notably the courts,
to interpret and apply domestic law. However, since under Article
5 з 1 failure to comply with domestic law entails a breach of the
Convention, it follows that the Court can and should exercise a
certain power to review whether this law has been complied with
(see Benham v. the United Kingdom, judgment of 10 June 1996,
Reports of Judgments and Decisions 1996-III, зз 40 - 41).
43. Turning to the facts of the present case, the Court's task
would have been facilitated if the domestic courts had themselves
determined whether national law had been respected in the
applicant's case. This, however, has not been done. Besides, it is
not certain if such a decision was at all possible, given that one
of the applicant's complaints under the Convention is that there
was no remedy by which he could test the lawfulness of his
detention (see paragraphs 60 - 68 below).
44. In such circumstances, the Court will have to exercise its
limited power of review of compliance with the domestic
legislation.
45. The applicant claims that at the time of his arrest the
Russian authorities had no legal basis to detain him. This
allegation does not seem to be true: The Russian GPO had indeed
received the Belarusian GPO's request for extradition on 4 August
1998, i.e. 26 days after the applicant's arrest on 9 July 1998.
However, as early as 22 September 1997, that is some 9 months
before the arrest, the Russian authorities had received from
Belarus an international search and arrest warrant for the
applicant.
It follows that, pursuant to Article 61-1 of the Convention on
Legal Assistance, the Russian authorities were under an obligation
to find and arrest the applicant, which they did. Furthermore, the
request for the applicant's extradition, required by Article 56 of
the Convention on Legal Assistance, was received by the Russian
GPO within the 40-day time-limit established by Article 62 з 1 of
that Convention, i.e. in time.
46. The Court finds, in view of the above considerations, that
there was no breach of the domestic procedure on extradition, and
the applicant's detention cannot be found "unlawful" on this
ground.
2. Quality of the law
47. The applicant next alleged that the law on extradition was
too imprecise to meet the "quality" one would expect from a law
authorising deprivation of liberty.
48. The Court reiterates, as a matter of principle, that
"quality" in this sense indeed implies that where a national law
authorises deprivation of liberty it must be sufficiently
accessible and precise, in order to avoid all risk of
arbitrariness (see, mutatis mutandis, Amuur v. France, judgment of
25 June 1996, Reports 1996-III, з 50).
49. However, the "quality of the law" is not an end in itself
and cannot be gauged in the abstract. It only becomes relevant if
it is shown that the poor "quality of the law" has tangibly
prejudiced the applicant's substantive Convention rights. The
Court finds no indication of any such prejudice in the present
case.
50. At the heart of the applicant's complaint lies the
substantive interest not to spend an indefinitely long period of
time in pre-extradition custody. Article 5 з 1 (f) of the
Convention does not require domestic law to provide a time-limit
for detention pending extradition proceedings. However, if the
proceedings are not conducted with the requisite diligence, the
detention may cease to be justifiable under that provision. Within
these limits the Court may have cause to consider the length of
time spent in detention pending extradition (see Chahal v. the
United Kingdom, judgment of 15 November 1996, Reports 1996-V, з
113). From the moment of his arrest on 9 July 1998 to the moment
of his extradition on 17 November 1998 (or 12 November 1998,
according to the Government), the applicant spent about 4 months
in Russian custody. The Court considers that this period was not
excessively long, nor is there any other reason to believe that
the Russian authorities acted without due diligence.
51. There has, accordingly, been no breach of Article 5 з 1 of
the Convention on this ground either.
II. Alleged violation of Article 5 з 2 of the Convention
52. The applicant next complained under Article 5 з 2 of the
Convention that he had not been informed about the reasons for his
arrest. Article 5 з 2 reads as follows:
"Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him."
A. Arguments of the parties
53. The Government rejected this complaint. They submitted that
the applicant had been immediately informed of the reasons for his
arrest and the charges against him. This followed from the
explanations given by the applicant on 11 July 1998.
54. The applicant maintained that in his explanations of 11
July 1998 he had only referred to the criminal investigation of
his company's activities and not to the charges against him
personally. It was not until 13 August 1998 that he first heard
about the charges.
B. The Court's assessment
55. The Court reiterates that Article 5 з 2 contains the
elementary safeguard that any person arrested should know why he
is being deprived of his liberty. This provision is an integral
part of the scheme of protection afforded by Article 5: by virtue
of з 2 any person arrested must be told, in simple, non-technical
language that he can understand, the essential legal and factual
grounds for his arrest, so as to be able, if he sees fit, to apply
to a court to challenge its lawfulness in accordance with Article
5 з 4. Whilst this information must be conveyed "promptly", it
need not be related in its entirety by the arresting officer at
the very moment of the arrest. Whether the content and promptness
of the information conveyed were sufficient is to be assessed in
each case according to its special features (see Fox, Campbell and
Hartley v. the United Kingdom, judgment of 30 August 1990, Series
A No. 182, з 40).
56. The Court also recalls that when a person is arrested on
suspicion of having committed a crime, Article 5 з 2 neither
requires that the necessary information be given in a particular
form, nor that it consists of a complete list of the charges held
against the arrested person (see X v. Germany, No. 8098/77,
Commission decision of 13 December 1978, DR 16, p. 111). When a
person is arrested with a view to extradition, the information
given may be even less complete (see K. v. Belgium, No. 10819/84,
Commission decision of 5 July 1984, DR 38, p. 230).
57. In the case at hand, the applicant noted in his
explanations of 11 July 1998 that, until his arrest in St.
Petersburg, he had been unaware that the Belarusian authorities
had been searching for him. It follows that, in the course of the
arrest, the applicant had been told that he was wanted by the
Belarusian GPO.
58. Having regard to the case-law cited above, the Court finds
that this information was sufficient for the purpose of Article 5
з 2 of the Convention.
59. There has, accordingly, been no violation of that
provision.
III. Alleged violation of Articles 5 з 4
and 13 of the Convention
60. Lastly, the applicant complained under Articles 5 з 4 and
13 of the Convention that his applications for release addressed
to the courts of St. Petersburg were not examined.
Article 5 з 4 reads as follows:
"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."
Article 13 reads as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
A. Arguments of the parties
61. The Government rejected this complaint. According to them,
the applicant's lawyer did not file any applications for release
with the courts of St. Petersburg. The applicant supplied the
Court with a copy of his application to the Kalininskiy District
Court. That copy bore a certain reference number. However, that
number did not originate from the Kalininskiy District Court. Had
the applicant's lawyer lodged the applications, they would have
certainly been examined. Applications for release lodged by
persons detained with a view to extradition were routinely
examined pursuant to Article 220 of the CCrP.
62. The applicant insisted that his lawyer did lodge the
necessary applications. The lawyer learned the reference number
from the court's registry, and could not take the blame for the
registry's possible mistakes. In any event, Russian law provided
no remedy by which detention with a view to extradition could be
challenged. Even though the applicant tried to challenge his
detention under Article 220-1 of the CCrP, this remedy failed
because it was intended for the judicial review of the detention
of criminal suspects, and not that of persons to be extradited.
B. The Court's assessment
63. Since Article 5 з 4 constitutes a lex specialis, that is a
special rule, in relation to the more general requirements of
Article 13 (see Nikolova v. Bulgaria [GC], No. 31195/96, з 69,
ECHR 1999-II), the Court will examine this complaint solely under
Article 5 з 4.
64. The Court reiterates that, in guaranteeing to persons
arrested or detained a right to institute proceedings, Article 5 з
4 also proclaims their right, following the institution of such
proceedings, to a speedy judicial decision terminating their
deprivation of liberty if it proves unlawful (see Van der Leer v.
the Netherlands, judgment of 21 February 1990, Series A No. 170-A,
з 35). This right must be not only theoretical or illusory but
practical and effective (see R.M.D. v. Switzerland, judgment of 26
September 1997, Reports 1997-VI, з 51).
65. Turning to the present case, the Court notes that the
applicant's complaint is twofold. First, the applicant alleges
that his applications for release were disregarded, or, in other
words, that judicial review was not available in fact. Secondly,
he alleges that his applications for release were not examined
because they had no legal basis, or, in other words, that judicial
review was not available in law.
66. As to the availability of judicial review in law, the
Government asserted that judicial review of detention with a view
to extradition was possible under Article 220 of the CCrP.
The Court has no reason to mistrust the Government's
interpretation of their own legislation. Moreover, the applicant
has not advanced any arguments to the contrary, other than the
fact that his applications were not examined.
67. As to the availability of judicial review in fact, the
parties make conflicting statements as to whether the applicant's
lawyer had at all lodged the applications for release.
The contents of the case-file do not convince the Court that he
had. The applicant has furnished, in support of his claim, copies
of documents purporting to be his applications to the Dzerzhinskiy
and Kalininskiy District Courts of St. Petersburg. However, these
documents are neither dated nor signed. More importantly, they do
not carry any mark to show that they had indeed been submitted to
the courts - by post or otherwise - or received by them.
Furthermore, there are no documents concerning the alleged
application to the St. Petersburg City Court.
Evidence that meagre does not establish a prima facie case of a
breach of the Convention.
68. There has, therefore, been no violation of Article 5 з 4 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 5 з 1 of
the Convention;
2. Holds that there has been no violation of Article 5 з 2 of
the Convention;
3. Holds that there has been no violation of Article 5 з 4 of
the Convention.
Done in English, and notified in writing on 8 February 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
J.-P.COSTA
President
{S.DOLLE}
Registrar
|
