In absentia conviction. Non violation of fair trial as the absence of the convicted from the court was his choice. His detention with a view to extradition without a court order violated his right to freedom and security.

JUDGMENT

Kislov v. Russia 09.07.2019 (no. 3598/10)

see here  

SUMMARY 

Passive bribery of a civil servant. His in absentia conviction for passive bribery and forgery. Provisional detention in Russia with a view to extradition to Belarus without a court order.

The applicant was accused of passive bribery of an official and was convicted in absentia by a court in Belarus with seven years’ imprisonment. He left Belarus and settled in Russia. Belarus has requested his extradiction. He was arrested in Russia and detained for 4 months, pending the judgment of the Court of Appeal concerning his extradition.

The ECtHR considered that:

(a) there has been no violation of Article 3 because the applicant has not produced any evidence substantiating his fears of humiliating or inhuman treatment or punishment contrary to Article 3 if extradicted to Belarus, and his allegation of reprisal was ruled out.

(b) there has been no violation of Article 6 because his conviction in absentia was not tantamount to a “blatant denial of justice” since the applicant has not shown that his absence in the trial was for some  justifiable reason.

(c) there has been a violation of the right to liberty and security because he was unlawfully detained without a judicial decision and was deprived of the right to bring an action for his illegal detention and the right to compensation due to his illegal detention.

PROVISIONS

Article 3

Article 5 par.1, 4, and 5

Article 6

PRINCIPAL FACTS

The applicant, Vladimir Kislov, is a Belarusian national who was born in 1974. His current
whereabouts are not known but he is apparently in Russia.

The case concerned the applicant’s complaint about proceedings in Russia to extradite him to
Belarus.

A Belarus court convicted Mr Kislov in December 2005 of accepting a bribe in return for making a
favourable decision in his role as an employee at the Minsk district office of a State affiliated
enterprise and he was sentenced to seven years in a strict-regime prison. He alleged that the
proceedings had been brought against him in retaliation for denouncing his superior at the company
for various corrupt activities and that the case was fabricated.

The applicant arrived in Russia in March 2005. He stated that he had left Belarus owing to
persecution and harassment by the domestic authorities.

He was arrested in Russia in July 2009 and in October 2009 the Prosecutor General’s Office approved
his extradition to Belarus. He appealed, arguing in particular that the Russian authorities had not
assessed whether extradition had to be refused as being based on the enforcement of a sentence
which had been imposed without the minimum guarantees of a fair trial.

His lawyer submitted at a hearing that he could face the kind of ill-treatment prohibited by Article 3
of the Convention. The Russian courts upheld the extradition order. The applicant went into hiding
but as of March 2016 he was apparently still in Russia.

The Belarus courts reduced his sentence in July 2010 to four years under legislative changes that had
occurred subsequently. Requests to the Belarus Supreme Court for further reviews were dismissed.
The applicant raised various complaints under in particular Article 5 (right to liberty and security)
about his detention in Russia pending extradition from 16 August to 13 November 2009.

THE DECISION OF THE COURT…

Article 3

The Court notes that a number of international reports produced between 2007 and 2018 expressed concerns as to the human-rights situation in Belarus.

As a rule, reference to a general problem concerning human-rights observance in a particular country cannot alone serve as a basis for refusal of extradition. Having examined the available material and the parties submissions, the Court considers that it has not been substantiated that the human-rights situation in Belarus is such as to call for a total ban on extradition to that country, for instance on account of a risk that detainees will be ill-treatedThe material before the Court does not conclusively indicate that every detainee held in a Belarusian postconviction detention facility (namely, the strictregime prison as indicated in the applicants 2005 trial judgment)ran in 2009-10, or currently runs, a real risk of physical ill-treatment.

The applicants underlying argument that the prosecution had “fabricated” criminal charges against him as vengeance for his complaints to the authorities amounted, in substance, to an allegation that the investigating and prosecuting authorities had acted in bad faith by using the criminal procedures, at least predominantly, for a reprehensible ulterior purpose.

The applicant has not specified what the “fabricated” charges actually consisted of. For instance, there is no indication that he was entrapped or incited to commit a criminal offence  or convicted on the basis of planted evidence . However, the applicant may be understood as claiming that he had not committed the offences (that is, he had not received a bribe orforged a document). In this connection, it suffices for the Court to note, in so far as the assessment of the extradition request is concerned, that the material before the Russian authorities and before the Court disclosed that there was sufficient basis for a reasonable suspicion against the applicant in relation to the allegation that he had taken a bribe andforged a document, on account ofinter alia, the incriminating statement from the person who had given the bribe. There is enough material to confirm that this suspicion was supported by an array of documentary evidence and witness statements. 

The Court is thus not convinced that the applicant was in 2010, and remains now, over thirteen years after the trial in Belarus, at a real risk of ill-treatment.

As to the applicantreferences to various procedural violations during his trial in Belarus, this type of allegation raised by a fugitive convicted in a requesting country may raise issues under Article 5 of the Convention in so far as he or she is exposed to a risk of serving a prison term after a flagrant denial of justice or, as in the present caseunder Article 6 of the Convention. The Court does not discern any causal link between the alleged procedural irregularities and a risk of physical ill-treatment because of them in the event of the applicants extradition in order to serve the prison term. In any event, the complaint of “inhuman punishment” fails in so far as the applicants complaint of procedural irregularities is dismissed as unfounded.Measures depriving persons of their liberty inevitably involve an element of suffering and humiliationThe applicant has not put forward any arguments to show that in the individual circumstances of his case, he is at risk of punishment that would go beyond the inevitable suffering inherent in deprivation of liberty.

The Court concludes that the applicant has not indicated any individual circumstances that substantiate his fears of treatment or punishment contrary to Article 3 in the requesting country.

The Court concludes that the applicants extradition to Belarus would not be in breach of Article 3 of the Convention.

Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

In view of the above conclusion, the Court considers that the related complaint under Article 13 of the Convention is likewise inadmissible.

Article 6

The applicants arguments under Article 6 of the Convention, in relation to the proceedings in Belarus and with the aim of preventing his extradition in order to serve the sentence there, are twofold. First, he argued that the prison sentence resulted from proceedings that had arisen from “fabricated” charges and serious procedural irregularities. Secondly, he alleged that having been sentenced in absentia, Article 6 of the Convention would be breached because after his extradition he would have to serve the prisonsentence imposed in those circumstances, without obtaining a new determination of the charges, this time with his presence in court.

The Court reiterates that it is of paramount importance that a defendant in criminal proceedings should be present during his or her trial. However, criminal proceedings held in the absence of the accused are not necessarily incompatible with the Convention if the person concerned can subsequently obtain a fresh determination of the merits of the charge, in respect of both law and fact, from a court which has tried him or at a hearing before a court of appeal. However, the absence of such fresh determination of the charge is not problematic under Article 6 of the Convention if it has not been unequivocally established that the defendant has waived his right to appear and to defend himself or that he intended to evade trial.

In the present case, during one part of the trial the applicant exercised his right under Belarusian law to be present at his trial in that country and to defend himself. As to his subsequent absence from the remainder of the trial, there is nothing to suggest that he then fled Belarus on account of any treatment in breach of Article 3 of the Convention, substantial grounds relating to a real risk of such ill-treatment or any valid concern of political persecution there. In the Courts view, the applicant has failed to substantiate that the Convention would require the criminal proceedings in Belarus to be taken up again in the context of the present case, where the applicant had left the country before the proceedings ended and may be returned there to serve his sentence. Furthermore, the applicant has submitted no explanation to the Court as to why his privately retained counsel in Belarus no longer represented him after his departure for Russia; what prevented his counsel from exercising other procedural rights on the applicants behalf and in his interests, despite his absence; or why the applicant did not seek restoration of the timelimit for a review in the cassation appeal proceedings. It appears that he could have made such an application by post, as he did as regards a supervisory review in his case.  The Court concludes that the applicant’s conviction despite his absence did not amount to a “flagrant denial of justice” in breach of Article 6 of the Convention.

rdingly, the complaint under Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Article 5 par. 1

The applicant alleged, under Article 5 of the Convention, that his detention from 16 August to 13 November 2009 had been unlawful and that he had had no enforceable right to compensation on account of his unlawful detention. He also argued that the judicial review of the decision of 10 August 2009 had been neither speedy nor effective. Moreover, there had been no procedure by which a court could have ordered his release between August and November 2009.

  Having regard to the scope of the applicants complaints, the above considerations and, foremost, the findings made by the domestic courts  the Court concludes that there has been a violation of Article 5 § 1 of the Convention in respect of the applicants detention from 16 August to 13 November 2009.

Article 5 par. 4

The Court concludes that there has been a violation of Article 5 § 4 of the Convention on account of the applicantright to take proceedings by which the lawfulness of his detention could be decided by a court and his release ordered if the detention was not lawful, as regards the period between August and early November 2009.

Article 5 par. 5

The Court reiterates that the right to compensation under Article 5 § 5 of the Convention arises if a breach of one of its other four paragraphs has been established, directly or in substance, either by the Court or by the domestic courts.

In their observations before the Court in 2016, the Government did not put forward any argument or submit any evidence which would prompt the Court to reach a different conclusion in the present case in relation to the same legislative framework.

Accordingly, the Governments objection must be dismissed and a violation of Article 5 § 5 of the Convention, in conjunction with Article 5 § 1 thereof, found.

Violation of Article 5 § 1
Violation of Article 5 § 4
Violation of Article 5 § 5

Interim measure (Rule 39 of the Rules of Court) – not to remove Mr Kislov to Belarus – lifted.

Just satisfaction: EUR 10,000 for non-pecuniary damage(echrcaselaw.com).


ECHRCaseLaw

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