Detention of Swedish refugee in Slovakia for extradition to Russia unlawful.
In today’s Chamber judgment (1) in the case of Shiksaitov v. Slovakia (application no. 56751/16) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 5 § 1 (right to liberty and security) and 5 § 5 (enforceable right to compensation) of the European Convention on Human Rights.
The case concerned the alleged unlawfulness of the applicant’s arrest and detention with a view to his extradition to Russia, despite his having refugee status in Sweden. The Court found in particular that the applicant’s arrest and the individual detention orders had complied with Slovak law and the Convention. However, the overall length that the applicant had been held had been overlong and the grounds for his detention had ceased to be valid, breaching his rights. The Court also found that the applicant had not had an enforceable right to compensation for the above breach.
The applicant, Hamzat Shiksaitov, is a Russian national who was born in 1982 and lives in Alvesta (Sweden).
On 12 July 2007 an international arrest warrant for the applicant was issued by a court in the Chechen Republic in Russia. He was alleged to have committed acts of terrorism. In 2011 the applicant fled from Ukraine to Sweden, fearing extradition from the former. He was granted asylum in Sweden. In 2015 the applicant was arrested in Slovakia en route to Ukraine as he was on Interpol’s international watch list.
The Košice Regional Court ordered the applicant’s preliminary detention until the circumstances surrounding his status in Sweden could be determined. That decision was upheld following an interlocutory appeal and later by the Constitutional Court, which also stated that his rights had not been infringed.
On 23 February 2015 the applicant was placed in detention pending extradition to Russia. The applicant lodged an interlocutory appeal, arguing that Slovakia was bound by the Swedish courts’ decision on his refugee status. That appeal was dismissed by the Supreme Court, a decision later confirmed by the Constitutional Court.
On 8 September 2016 the applicant’s extradition to Russia was ordered. The Regional Court noted, in particular, that refugees did not automatically enjoy immunity from prosecution (because the applicant was wanted for a serious non-political crime in this case) and that it was satisfied with the general guarantees given by the Russian authorities.
The Constitutional Court then dismissed a constitutional complaint by the applicant. They remitted the case to the lower-level to establish whether the applicant should have been excluded from being accorded the status of refugee.
The Supreme Court later overturned the decision of 8 September 2016 and ordered the applicant’s release on 2 November 2016. The border police expelled the applicant to Sweden.
Decision of the Court
The applicant argued that his arrest had not been in compliance with Slovak law, in particular the Police Corps Act and the Code of Criminal Procedure. He argued that as Russia had not requested his detention, and as he had been a refugee in Sweden, his preliminary detention and detention pending extradition should not have been ordered.
The Court reiterated that deprivation of liberty must be “lawful”. However, compliance with national law is not sufficient; the decision must be taken in good faith, and for the grounds given, and detention must not be too long. In particular, detention related to extradition must be reasonably considered necessary.
The Court was satisfied that the applicant’s preliminary arrest had been lawful, as the Slovak authorities could not have been aware of the applicant’s status in Sweden.
Likewise, the Court considered that the applicant’s preliminary detention had been lawful, despite the lack of a request from the Russian authorities, as in Slovakia preliminary detention only had to be ordered by a prosecutor.
Regarding the applicant’s detention pending extradition, the Court agreed with the domestic courts that that detention had not been fundamentally proscribed, as the Swedish authorities’ decisions had not been binding on Slovakia. Furthermore, it was acceptable for the Slovak authorities to have examined the applicant’s case thoroughly, especially given that the Swedish authorities had not checked his status with Interpol. Overall, the applicant’s detention had been justified by the need to keep him in Slovakia with a view to determining whether there had been any legal or factual impediments to the applicant’s extradition.
Overall the applicant’s detention had lasted one year, nine months and eighteen days. This is despite the fact that the authorities had had information concerning the applicant’s status in Sweden and his prosecution in Russia from a very early stage and that nothing had prevented the courts from reaching a final decision on the admissibility of the applicant’s extradition much earlier than they in fact had done.
In the light of the above, the Court concluded that the authorities had not acted with diligence, and the grounds for the applicant’s detention had ceased to be valid. This had led to a violation of Article 5 § 1 of the Convention.
The Court also judged that the applicant had not had an enforceable right to compensation for his unlawful detention, in violation of Article 5 § 5.
Just satisfaction (Article 41)
The Court held that Slovakia was to pay the applicant EUR 1,200 in respect of non-pecuniary damage and EUR 8,000 in respect of costs and expenses.
The judgment is available only in English.
(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
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