AS TO THE ADMISSIBILITY OF
Application no. 72812/01
by Michael Christopher MC DONALD and Others
The European Court of Human Rights (Fourth Section), sitting on 16 November 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 11 August 2001,
Having deliberated, decides as follows:
The applicants, Mr Michael Christopher Mc Donald, Mr Declan John Rafferty and Mr Fintan Paul O'Farrell, are Irish nationals, who were born in 1957, 1960 and 1963 respectively. They normally live in Co Louth, Eire (Ireland) and are currently detained in prison in Belmarsh (the United Kingdom). They are represented before the Court by Mr J. Gereg, a lawyer practising in Banská Bystrica (Slovakia).
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 5 July 2001 a police court in inner London (the United Kingdom) issued a warrant for the applicants' arrest on charges of membership of a proscribed organisation contrary to Section 11 of Terrorism Act of 2000, fund-raising for the purposes of terrorism contrary to Section 15 of that Act, financing terrorism contrary to Section 17 of that Act and conspiracy to gather funds to support terrorism contrary to Article 1 § 1 of the Criminal Code of 1977. On the same day the applicants were detained in Slovakia on the order of the Trnava (Slovakia) Regional Prosecutor (Krajský prokurátor) who then heard the applicants and requested that they be placed under provisional arrest (predbežná väzba).
On 6 July 2001 the Trnava Regional Court (Krajský súd) placed the applicants under provisional arrest under Article 380b § 1 of the Code of Criminal Procedure. It did so without having heard them. The decision stated that no appeal was available.
On 20 July 2001 a lawyer appointed by the applicants informed the Regional Court and the Regional Prosecutor that he wished to attend all procedural steps that would be taken by the authorities and requested that he be informed of such steps beforehand. He also demanded that he be given access to the respective case-files.
On 23 July 2001 the lawyer filed a request with the Regional Court for the applicants' release. He relied on Article 380b § 2 of the Code of the Criminal Procedure and maintained that the conditions for remanding the applicants in custody pending extradition (vydávacia väzba) were not fulfilled.
On 6 August 2001 the Regional Prosecutor made available to the applicants and their lawyer for reading purposes the official request of the British authorities for the applicants' extradition dated 27 July 2001. According to them the conditions under which they were able to examine the request in the detention centre where the applicants were kept were inadequate. They therefore stated that they reserved the right to submit their comments on the request later and demanded that a copy of the request be given to them.
Later on 6 August 2001 the Regional Prosecutor refused to provide a copy of the extradition request to the applicants' lawyer who subsequently unsuccessfully complained of the refusal to the Prosecutor General and the Minister of Justice.
On 7 August 2001 the applicants' lawyer made a written submission to the Regional Court demanding inter alia that the Regional Court hold a public session (verejné zasadnutie) in the case and hear the applicants.
On 9 August 2001 the Regional Court remanded the applicants in detention pending extradition pursuant to Article 380b § 2 of the Code of the Criminal Procedure and ruled under Article 380 § 1 of the Code that their extradition was permissible. It found that the conditions for the extradition as laid down in the European Convention on Extradition of 1957 were met. The Regional Court decided in private (neverejné zasadnutie), neither the applicants nor their lawyer being present. The decision indicated that no appeal was available against it.
In a letter of 9 August 2001 the Regional Court judge in charge of the case responded to the request of 23 July 2001 for the applicants' release. He expressed the view that not all of the general legal rules in respect of detention on remand could be applied to detention in extradition cases. According to him there was no legal basis for deciding on the request for the applicants' release and for holding a public session in their case as the relevant provisions of the Code of Criminal Procedure envisaged that decisions in respect of extradition were made in private.
On 10 August 2001 the applicants' lawyer made a written submission to the Regional Court. He objected to the fact that the Regional Court had not held a public session in the case and that it had never actually heard the applicants. He also objected that the applicants had not been given adequate time and facilities for preparation of an effective defence. On the same day the applicants' lawyer also consulted the Regional Court's case-file. He was however again denied a copy of the request for the applicants' extradition.
On 23 August 2001 the applicants' lawyer invited the Minister of Justice to exercise his discretionary power under Article 380 § 2 of the Code of Criminal Procedure and to initiate proceedings before the Supreme Court (Najvyšší súd) for review of the Regional Court's decisions concerning the applicants' extradition.
On 30 August 2001 the Minister issued a decree for the applicants' extradition to the United Kingdom. The applicants were subsequently handed over to the British authorities. According to them they are now detained in a Category A special security unit of Belmarsh prison.
On 1 February 2002 the British authorities requested that the scope of the offences for which the applicants had been extradited be extended. On 18 March 2002 the Regional Prosecutor submitted the request to the Regional Court which acceded to it on 19 March 2002. The decision was made in private with neither the applicants nor their lawyer being present. It stated that no appeal was available against it.
B. Relevant domestic law
1. The Constitution
Article 7 § 5 provides that:
“International treaties on human rights and fundamental freedoms and international treaties the discharge (vykonanie) of which does not call for an act of parliament, and international treaties which directly confer rights or impose duties on natural or legal persons and which were ratified and promulgated in a way provided for by an act of parliament shall have precedence over law.”
2. The Code of Criminal Procedure
Article 36 lays down general rules in respect of mandatory legal representation in criminal matters. Under its paragraph 4 an accused person in extradition cases must be represented by an advocate.
In criminal matters courts decide at hearings (hlavné pojednávanie) which are governed by the provisions of Head 13, at public sessions (verejné zasadnutie) which are governed by the provisions of Head 14, and at private sessions (neverejné zasadnutie) which are governed by the provisions of Head 15.
Article 232 stipulates that decisions are to be taken at a public session if the law so provides. Article 240 provides that decisions are to be taken in private if the law does not envisage for their being taken at a hearing or in a public session.
Under Article 242 a private session requires the permanent presence of all members of the court's chamber and of a minutes recorder (paragraph 1). At the relevant time and until abolished by virtue of Act No. 422/2002 Coll. with effect from 1 October 2002, unless the law provided otherwise, the presence of the public prosecutor at a private session was possible but not obligatory (paragraph 2).
Head 24 of the Code governs legal relations including a foreign element. Section 375 lays down that the provisions of this Head apply only if an international convention does not envisage another procedure.
Under Article 379 § 2 the person to be extradited must be represented by an advocate. Pursuant to paragraph 5 of that Article, if the person to be extradited is under provisional arrest or detained pending extradition, contact with his or her advocate and his or her correspondence are subject to general provisions concerning detention on remand.
The decision whether or not an extradition is permissible is to be taken by a Regional Court in the judicial district of which the person to be extradited resides or was found. Following any such decision the Regional Court is to submit the matter to the Minister of Justice (Article 380 § 1). If the Minister has doubts as to the correctness of this decision, he or she can seek a review of the matter by the Supreme Court (Article 380 § 2).
On the request of the competent authorities of a foreign State, the public prosecutor who carries out a preliminary investigation into the matter can order that the police detain the person to be extradited (Article 380a). This detention is not limited exclusively to those purposes for which a person may be detained on remand pursuant to Article 67. If the person to be extradited is not released by the prosecutor within 24 hours, the prosecutor is to seek a court order for that person's provisional arrest. His or her request to that effect has to be determined by a court within another 24 hours and, if refused, the person to be extradited is to be released (Section 380b § 1). As from 1 August 2001 the said time-limits of 24 hours were extended to 48 hours by virtue of amendment no. 253/2001 Coll. to the Code of Criminal Procedure.
Under Article 380b § 1, if during the provisional arrest the State seeking extradition submits an official request to that effect, the person to be extradited can be taken into detention pending extradition.
Article 381 lays down conditions for imposing detention pending extradition. Under its paragraph 1 the President of the Regional Court chamber dealing with the case may decide to detain a person pending his or her extradition if it is necessary to prevent the person from fleeing. Under paragraph 2 of that Article, if an extradition has been declared permissible, the Regional Court Chamber is to take a decision to detain the person to be extradited pending the extradition, provided that no such detention has been ordered by the President of that Chamber. The grounds on which a person can exclusively be detained on remand pursuant to Article 67 do not apply here.
If a court declares an extradition to be permissible, the executive decision allowing the extradition to be effected is to be taken by the Minister of Justice (Article 382).
Article 383 deals with situations when the requesting State to which a person has been extradited subsequently requests that prosecution or punishment of that person be allowed also for a criminal offence other than the offence for which he or she was originally extradited. It provides that the proceedings in respect of such subsequent request are to be governed accordingly by the provisions concerning extradition.
C. Relevant international law
The European Convention on Extradition of 1957
Article 3 deals with political offences for which extradition is not permissible and provides as follows:
“1. Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.
2. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasons.
3. The taking or attempted taking of the life of a Head of State or a member of his family shall not be deemed to be a political offence for the purposes of this Convention.
4. This article shall not affect any obligations which the Contracting Parties may have undertaken or may undertake under any other international convention of a multilateral character.”
Article 12 lay down conditions in respect of the requests for extradition and supporting documents. In so far as relevant it provides that:
“2. The request shall be supported by:
b. a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and
c. a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality.”
Article 14 sets forth the rule of speciality and its relevant part provides that:
“1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:
a. when the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;
Article 16 lays down the rules concerning provisional arrest. Its section 4 provides as follows:
“Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”
The applicants complain of the deprivation of their liberty and the procedure applied and decisions taken in its respect. In particular they complain that they have never been provided with a copy of the requests for their extradition and for the subsequent extension of the scope of the offences for which they had been extradited; that they have never been heard by a court; that there was no public hearing of their case, that they could not obtain the examination of witnesses on their behalf, that the judicial decisions in respect of their extradition were taken in private meetings without their and their lawyer's presence and at a single instance only and that no remedies were available against them. They further complain that under the existing legal framework as demonstrated in the position taken by the Regional Court judge involved in their case in his letter of 9 August 2001 there was no legal basis for determining the request of 23 July 2001 for their release. They also assert that their extradition and the proceedings in its respect fell short of the requirements of the European Convention on Extradition of 1957, in particular its Sections 3, 12 (2) (b) and (c), 14 (1) (a) and 16 (4).
The applicants finally argue that, under the Code of Criminal Procedure, legal representation in cases of extradition is mandatory. In their view this prevision refers to a defence which is not only formal but above all material and effective. The way in which domestic authorities handled their case however rendered any meaningful defence of their rights impossible and a priori futile.
Formally, the applicants allege a violation of Article 5 §§ 1 (invoking sub-paragraphs (c) and (f)), 3 and 4, of Article 6 §§ 1 and 3 (a), (b), (c) and (d) and of Article 13 of the Convention.
1. The applicants complain that the deprivation of their liberty and the related proceedings infringed their rights protected under Article 5 §§ 1 (c) and (f), 3 and 4 of the Convention which provide 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:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(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.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
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.
(a) As to the complaint of a violation of Article 5 § 1 of the Convention, although the applicants have invoked both sub-paragraphs (c) and (f) of that provision, the Court notes that the applicants were detained with a view to their extradition to the United Kingdom and not for the purpose of bringing them before the Slovakian courts on suspicion of their having committed an offence. This being so, Article 5 § 1 (c) has no relevance to the present case, which falls to be examined only under Article 5 § 1 (f).
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
(b) As to the complaint under Article 5 § 3 of the Convention, the Court notes that this provision only applies to persons arrested or detained in accordance with the provisions of paragraph 1 (c) of that Article. In view of the above finding as to the applicability of Article 5 § 1 (c) of the Convention in the present case, it follows that Article 5 § 3 of the Convention also has no application.
It further follows that the relevant part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(c) As regards the complaint that in the applicants' case the guarantees of Article 5 § 4 of the Convention were not respected, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicants further complain that the proceedings concerning their extradition did not afford the guarantees of Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention which, in so far as relevant, provide as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X).
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
3. The applicants finally complain that they did not have at their disposal an “effective remedy” in respect of the above alleged violations of their Convention rights contrary to Article 13 of the Convention which provides that:
“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) In so far as the applicants allege a lack of an effective remedy in respect of their complaints under Article 5 §§ 1 and 4 of the Convention, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
(b) The Court has found above that the applicants' complaints under Article 5 § 3 and under Article 6 of the Convention are inadmissible. Accordingly, the applicants had no “arguable claim” of a violation of these provisions of the Convention and Article 13 is therefore inapplicable to these parts of the application (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
It follows that the relevant part of the complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants' complaints under Article 5 §§ 1 and 4 both taken alone and in conjunction with Article 13 of the Convention;
Declares the remainder of the application inadmissible.
Michael O'Boyle Nicolas Bratza
MC DONALD AND OTHERS v. SLOVAKIA DECISION
MC DONALD AND OTHERS v. SLOVAKIA DECISION