KARPENKO v. UKRAINE - 23361/15 (Judgment : Right to liberty and security : Fifth Section Committee) [2021] ECHR 490 (10 June 2021)

JUDGMENT STRASBOURG 10 June 2021 This judgment is final but it may be subject to editorial revision. In the case of Karpenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Stéphanie Mourou-Vikström, President, Jovan Ilievski, Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 23361/15 ) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Vladimirovich Karpenko (“the applicant”), on 30 April 2015; the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 5 §§ 1 and 4 and 13 of the Convention and to declare inadmissible the remainder of the application; the decision of the Russian Government not to exercise their right to intervene in the proceedings; the parties’ observations; Having deliberated in private on 20 May 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The case concerns the applicant’s complaints under Articles 5 §§ 1 and 4 and 13 of the Convention that he was deprived of his liberty unlawfully, notably on account of the fact that he was repeatedly rearrested in the context of the procedure for his extradition to Russia, despite the domestic appellate court repeatedly ruling that there was no sufficient legal basis for his detention. THE FACTS 2. The applicant was born in 1970 and, according to most recent available information, lives in Odessa. The applicant was represented by Ms A. Martynovskaya, Mr M. Tarakhkalo, and Ms Y. Zaikina, lawyers practising in Kyiv. 3. The Government were represented by their Agent, most recently Mr I. Lishchyna. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In June 2014 a Russian court convicted the applicant of the unlawful acquisition and storage of ammunition. It sentenced the applicant to one year’s imprisonment and a fine. 6. In August 2014, without having served his sentence, the applicant moved to Ukraine and settled in the Ovidiopol District of the Odessa Region. 7. On 3 December 2014 the police arrested the applicant. The arrest report referred to Article 582 of the Code of Criminal Procedure (“the CCP”, see paragraph 23 below) and an entry found in a police database indicating that the applicant had an unserved sentence in Russia. 8. On 4 December 2014 the Ovidiopol District Court placed the applicant under provisional arrest until 11 January 2015 (in accordance with Article 583 of the CCP, see paragraph 24 below) with a view to his possible extradition. 9. On 30 December 2014 the Office of the Prosecutor General of the Russian Federation submitted to the Ministry of Justice of Ukraine a request for the applicant’s extradition. 10. On 6 January 2015 the Odessa Malynovsky District Court examined the prosecutor’s office’s request that the applicant be placed under extradition arrest. Noting that the extradition request and all other relevant documents, including those identifying the applicant and evidencing his conviction in Russia, had been submitted, the court placed the applicant under extradition arrest until his surrender to Russian authorities but no longer than twelve months. 11. The applicant appealed. 12. On 14 January 2015 the Odessa Regional Court of Appeal (“the Court of Appeal”) quashed the decision of 6 January 2015 and dismissed the prosecutor’s request as unsubstantiated. In its reasoning, the Court of Appeal stated that, in breach of Articles 548 and 584 of the CCP (see paragraphs 22 and 25 below), the extradition request was only available as a fax copy, not a copy certified by the Ukrainian authorities. Moreover, the name of the person to be extradited was not legible; nor were the places bearing the signature of the official and the stamp of the Russian authorities. Therefore, the decision of 6 January 2015 to place the applicant under extradition arrest was without legal basis. 13. On 15 January 2015 the applicant was released. On his exit from the detention centre he was arrested again. In the new arrest report the police referred to essentially the same circumstances as in the initial arrest report (see paragraph 7 above). The prosecutor lodged another request to have the applicant placed under extradition arrest. 14. On 16 January 2015 the Malynovsky District Court granted the prosecutor’s request and placed the applicant under extradition arrest for the period until his surrender to the Russian authorities but no longer than twelve months. It stated, as it did its order of 6 January 2014 (see paragraph 10 above), that the extradition request and all other relevant documents, including those identifying the applicant and evidencing his conviction in Russia, had been submitted. 15. On 26 January 2015 the Court of Appeal allowed the applicant’s appeal, quashed the decision of 16 January 2015 and dismissed the request for extradition arrest as unsubstantiated. It stated that the failings which the Court of Appeal had established on 14 January 2015 were still present in the prosecutor’s second request. Notably, there was still no original of the extradition request from the Russian authorities. The court ordered that the applicant be released. 16. Following the hearing of the Court of Appeal the applicant was arrested once again. The arrest report referred to essentially the same grounds as the previous reports (see paragraphs 7 and 13 above). 17. On 28 January 2015 the prosecutor lodged another request to have the applicant placed under extradition arrest. 18. On 31 January 2015 the Malynovsky District Court granted the prosecutor’s request and ordered extradition arrest for sixty days, until 30 March 2015. The applicant appealed. 19. On 10 February 2015 the Court of Appeal quashed the decision of 31 January 2015 and dismissed the prosecutor’s request as unsubstantiated. It stated that there was no evidence that the original of the extradition request had been submitted or dispatched to the Ukrainian authorities and that the available documentation had not been properly certified and prepared. The Court of Appeal ordered the applicant’s release. 20. Following his release, the applicant was arrested once again. The arrest report referred to the same grounds as in previous reports (see paragraphs 7 and 13 above). 21. On 13 February 2015 the Malynovsky District Court released the applicant on the condition that he give a written undertaking not to abscond. RELEVANT LEGAL FRAMEWORK I. Code of Criminal Procedure of 2012 22. Article 548 § 5 of the CCP provides that the competent central authority of Ukraine (the Ministry of Justice) may consider a request for international cooperation in criminal matters which is submitted by fax, e-mail or other means of communication. However, a measure in respect of such a request may only be taken upon confirmation of the posting or submission of the original request. 23. In accordance with Article 582 §§ 1 and 6 of the CCP a person wanted by a foreign State for a crime may be arrested by a competent official. 24. Article 583 of the CCP states that, before the receipt of an extradition request, a person who has committed a crime outside Ukraine and who has been arrested in Ukraine may be placed under provisional arrest for up to forty days or for another period of time as stipulated in the respective international treaty. 25. Article 584 of the CCP provides that a request to place a person under extradition arrest must be submitted by a prosecutor after the receipt of an extradition request from a foreign State. The prosecutor must submit a copy of the extradition request certified by the central Ukrainian authority, documents pertaining to the person’s citizenship and the available materials of the extradition inquiry (paragraphs 1 and 2). The extradition arrest shall be applied for the period necessary to take a decision on the person’s extradition and his or her surrender; however, it cannot exceed twelve months (paragraph 10). II. Civil Code of 2003 26. Article 1176 of the Code imposes on the State an obligation to fully compensate an individual for damage caused to him or her by an unlawful conviction, the unlawful imposition of criminal liability, the unlawful application of a preventive measure (including detention) or unlawful arrest, regardless of whether the officials involved were at fault. It further specifies that the right to compensation “arises in cases provided for by law”. III. The Law on the Procedure for Compensation for Damage caused by Law-Enforcement Authorities and Courts (“the Compensation Act”) of 1994 27. Under section 1 of the Act, a person is entitled to compensation for damage caused by unlawful arrest or detention. In such cases, persons are to be compensated for damage, regardless of whether the relevant officials from the law-enforcement authorities or courts were at fault. Section 2 makes provision for cases where the right to compensation arises, including cases where it has been acknowledged, in a judicial decision, that the detention was unlawful. THE LAW I. ALLEGED VIOLATION OF ARTICLES 5 AND 13 OF THE CONVENTION 28. The applicant complained that his detention was in breach of Article 5 § 1 of the Convention and that, contrary to Articles 5 § 4 and 13 of the Convention, he had not been able to obtain his effective release despite the domestic Court of Appeal holding that there was no legal basis for his detention. The relevant provisions read as follows: Article 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 unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 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.” Article 13 “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. The parties’ submissions 29. The Government submitted that the applicant had failed to use an available domestic remedy. As the unlawfulness of his detention had been established by the Court of Appeal, it was open to him to claim compensation under the Compensation Act and Article 1176 of the Civil Code (see paragraphs 26 and 27 above). 30. The applicant submitted that his detention from 3 December 2014 to 13 February 2015 had been unlawful in domestic terms, that the proceedings for his extradition had not been conducted with requisite diligence and that the domestic courts had initially failed to consider alternatives to detention. The remedies suggested by the Government were not effective. B. The Court’s assessment 1. Admissibility 31. In Orlovskiy v. Ukraine (no. 12222/09 , §§ 57-61, 2 April 2015) and Tikhonov v. Ukraine (no. 17969/09 , §§ 22 and 39, 10 December 2015) the Court accepted that, where unlawfulness of the applicants’ detention was acknowledged in a separate ruling dedicated specifically to the issue of lawfulness of detention, a claim for compensation under the Compensation Act was an effective remedy to be used in respect of complaints under Article 5 § 1 of the Convention. 32. By contrast, in Voykin and Others v. Ukraine (no. 47889/08 , § 127, 27 March 2018) the Court held that the Government did not demonstrate, with reference to the domestic case-law, that a ruling on appeal quashing a lower court’s detention order would as such constitute sufficient acknowledgment of illegality entitling the applicant to compensation under the Compensation Act. The Government did not submit any relevant examples of the domestic case-law in the present case either and the Court, accordingly, sees no reason to reach a different conclusion under the circumstances of the present case. 33. The Court must reach the same conclusion in respect of the possible claim for damages under Article 1176 of the Civil Code. In numerous cases the Court has found that that a claim under that provision could not be considered an effective remedy (see, for example, Ruslan Yakovenko v. Ukraine , no. 5425/11 , §§ 37 and 38, ECHR 2015, and Voykin and Others , cited above, § 128). The Government did not identify any developments in the domestic case-law that would show otherwise. 34. The Court therefore rejects the Government’s non-exhaustion objection. It further considers that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It should therefore be declared admissible. 2. Merits 35. The Court notes that on 14 January 2015 the domestic Court of Appeal established that there was no sufficient basis under domestic law for the applicant’s extradition detention since there was no appropriate copy of the extradition request in the file (see paragraph 12 above). 36. There was no indication that there was any change in that respect after 14 January 2015. Nevertheless, the authorities prevented the applicant’s effective release until 13 February 2015 by repeatedly arresting him immediately upon his pro forma “release”, and did so on the grounds the Court of Appeal had already held were invalid (see paragraphs 15 to 21 above). 37. The applicant’s detention after 14 January 2015 was, therefore, tainted by arbitrariness (see, mutatis mutandis , John v. Greece , no. 199/05 , §§ 32-37, 10 May 2007, and Mikhaniv v. Ukraine , no. 75522/01 , §§ 85-88, 6 November 2008). 38. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 14 January to 13 February 2015. 39. In view of this conclusion there is no need to examine the remainder of the applicant’s arguments under Article 5 § 1 as well as his complaints under Articles 5 § 4 and 13 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 41. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 4,350 in respect of costs and expenses. 42. The Government considered those claims unjustified and excessive. 43. The Court awards the applicant EUR 7,500 in respect of non-pecuniary damage. 44. The Court also considers it reasonable to award the sum of EUR 2,500 for the costs and expenses incurred in proceedings before the Court, to be transferred directly to the account of the applicant’s lawyer Mr Tarakhkalo. 45. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 14 January to 13 February 2015 of the Convention; 3. Holds that there is no need to examine the complaints under Articles 5 § 4 and 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be transferred directly into the account of the applicant’s lawyer Mr Tarakhkalo; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII