Remainder inadmissible;Violation of Art. 5-1;No violation of Art. 5-1

Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

The applicant has been living and working in GPE since DATE . He has a partner and CARDINAL minor children . All his family are NORP nationals .

NORP In DATE , following media coverage of the applicant ’s successful business , he was approached by representatives of ORG . They invited him to meet the President of GPE to receive an award for his business success . The applicant refused , as he disagreed with the domestic and foreign policies of the President .

NORP In DATE the applicant financially supported CARDINAL of the opposition candidates in the Presidential elections . He submits that supporters of opposition candidates were prosecuted in GPE .

On an unknown date criminal proceedings for embezzlement were instituted against the applicant in GPE .

On DATE the applicant was placed on the list of wanted persons by ORG . An international arrest warrant was issued .

On DATE the applicant applied for refugee status in GPE .

On DATE the UNHCR Regional Representation for GPE , GPE and GPE wrote a letter to ORG of Ukraine ( “ the ORG ” ) . They noted that the applicant was officially an asylum - seeker in GPE and therefore his status should be taken into account if the ORG examined any request for his extradition to GPE .

On DATE the applicant was arrested by ORG with a view to his extradition .

On DATE ORG remanded the applicant in custody pending the extradition procedure .

On DATE the NORP ORG upheld the decision of the first - instance court .

On DATE the ORG replied to the ORG letter of DATE , assuring them that the applicant would not be extradited until his application for refugee status had been examined on the merits .

On DATE amendments to LAW entered into force . They supplemented the LAW with a new chapter , which set forth the extradition procedure to be followed and established a special procedure for detention with a view to extradition . They provided , in particular , that a person could be temporarily detained for DATE or another term envisaged in international treaties while awaiting formal request for extradition . Once a formal extradition request has been received , the court may order the detention of the person for a maximum of DATE with the possibility of further detention ( see paragraph CARDINAL below ) .

On DATE the GPE ORG requested the ORG to extend the extradition detention of the applicant .

On DATE the applicant requested the GPE ORG to order his release due to lack of grounds to keep him in detention any longer .

On DATE ORG extended the applicant ’s detention until a decision had been taken on his extradition .

On DATE the ORG received a note from ORG , informing that the applicant ’s detention was no longer required , due to a friendly settlement which had been reached between the applicant and one of the aggrieved parties in the case .

DATE the ORG ordered ORG to take the necessary measures to have the applicant released from detention .

On DATE the Deputy Prosecutor of the Odessa Region ordered the termination of the applicant ’s detention . The applicant was released DATE and the ORG terminated the examination of the request for the applicant ’s extradition to GPE .

On DATE the NORP ORG of Appeal discontinued examination of the applicant ’s appeal against the decision of DATE , given that the applicant had been released .

On DATE ORG rejected the applicant ’s request for granting him the refugee status . The applicant was notified about this decision on DATE . He challenged it before ORG on DATE .

The domestic law and practice concerning detention with a view to extradition as it stood prior to CARDINAL DATE is summarised in the judgment PERSON v. GPE ( CARDINAL , § § DATE and DATE , DATE ) ,

The Code of Criminal Procedure ( LAW , which came into force on DATE , introduced a new chapter into LAW regulating proceedings for extradition to and from GPE . The LAW contained no transitional provisions . Relevant articles of this new chapter provide , among other things , as follows :

“ ... Extradition detention - taking a person into custody to ensure his extradition .

Provisional detention - taking a person , who has been detained on suspicion of committing crime outside GPE , into custody for a period determined by this PERSON or the international treaty of GPE until receipt of extradition request ... ”

“ Taking into detention on the territory of GPE of a person who is wanted by a foreign ORG in connection with the commission of a crime , shall be carried out by a body of inquiry .

The body of inquiry that carries out the detention shall immediately inform the prosecutor who supervises the observance of laws that it has been done . The notification of the prosecutor , accompanied by the record of the arrest , shall contain detailed information on the reasons and motives for the taking into detention .

Upon receipt of notification , the prosecutor shall check the legality of the detention of the person who is wanted by the competent authorities of foreign GPE , and immediately inform the regional prosecutor .

Within TIME of the arrest , the regional prosecutor ’s office shall inform the central authority , which shall inform the competent authority of the foreign ORG within DATE .

Every case of detention of a foreign national who has committed crimes outside GPE shall also be reported by the regional prosecutor ’s office to ORG of GPE .

The person detained shall be released immediately if :

CARDINAL ) Within TIME of the arrest he or she has not been served with a substantiated decision of the court on application of extradition detention or provisional detention ;

CARDINAL ) NORP it has been established that there are circumstances applying to the case under which extradition may not be carried out .

The procedure of detention of such persons and examination of complaints about their detention shall be performed in accordance with LAW , taking into account the peculiarities established by this LAW . ”

“ A detained person who has committed a crime outside GPE shall be subject to provisional detention for DATE , or another period of time set out in the relevant international treaty of GPE , until an extradition request has been received .

If the maximum period of provisional detention envisaged by paragraph CARDINAL of this LAW has expired , and no extradition request has been received in respect of this person , the person shall be released from custody immediately .

The body of inquiry which arrested the person shall lodge , with the prosecutor ’s approval , with the court local to the place of detention a warrant for provisional detention . The prosecutor shall be also entitled to lodge such a warrant .

The warrant shall be accompanied by :

CARDINAL ) NORP the record of the arrest of the person ;

CARDINAL ) documents containing information about the crime or crimes committed by the person on the territory of a foreign ORG and the preventive measures used in respect of that person by the competent authority of the foreign ORG ;

CARDINAL ) NORP the detained person ’s identity documents .

The warrant shall be examined within TIME of the detention of the person .

When examining the warrant , a judge shall establish the identity of the detained person , shall invite him or her to make a statement , shall check the presence of the documents envisaged by subparagraph CARDINAL of paragraph CARDINAL of this Article , shall hear the opinion of the prosecutor and of other participants and shall make a ruling on :

CARDINAL ) NORP application of provisional detention ;

CARDINAL ) NORP refusal to apply provisional detention if there are no grounds for its application .

The judge ’s ruling can be appealed against to the court of appeal by the prosecutor , the person placed under provisional detention , or his or her counsel or legal representative , within DATE of the date of the ruling . The lodging of an appeal against the judge ’s ruling shall not suspend its entry into force or its execution . The ruling of the court of appeal shall not be subject to appeal , nor may the prosecutor appeal on points of law .

The release of a person from provisional detention due to the belated arrival of an extradition request at the central authority shall not prevent the imposition of extradition detention if such a request is received later .

If an extradition request is received prior to the expiry of the period of provisional detention fixed by the court , the judge ’s ruling on the application of provisional detention becomes void from the date of the court ruling on the application of extradition detention to the person concerned . ”

“ Upon receipt of an extradition request from the competent authority of a foreign ORG , the prosecutor , on the instruction ( at the request ) of the central authority , shall deposit a warrant for the extradition arrest of the person with the court at the place of the person ’s detention .

The warrant shall be submitted for examination by the court , with the following attachments :

CARDINAL ) a copy of the extradition request from the competent authority of the foreign ORG , certified by the central authority ;

CARDINAL ) NORP documents confirming the person ’s nationality ;

CARDINAL ) available materials from the extradition inquiry .

Materials submitted to the court shall be translated into the official language , or another language as provided by an international treaty of GPE .

On receipt of the warrant , the judge shall establish the identity of the person concerned , shall offer him or her the opportunity to make a statement , shall check the extradition request and the available materials from the extradition inquiry , shall hear the opinion of the prosecutor and of other participants , and shall make a ruling which will :

CARDINAL ) NORP order extradition detention ;

CARDINAL ) NORP refuse to apply extradition detention if there are no grounds for its application .

When examining the warrant , the judge does not examine the issue of guilt and does not review the lawfulness of procedural decisions taken by the competent authorities of the foreign ORG in the proceedings against the person whose extradition is requested .

The judge ’s ruling can be appealed against to the court of appeal by the prosecutor , the person placed under extradition detention , or his or her counsel or legal representative , within DATE of the date on which the ruling was made . The lodging of an appeal against the judge ’s ruling shall not suspend its entry into force or its execution . A ruling of the court of appeal shall not be subject to appeal , nor may the prosecutor appeal on points of law .

Extradition detention shall be applied until the decision on the extradition of the person concerned and his actual surrender ( extradition ) , but shall not last DATE .

Within this period , and not less than once DATE , the judge at the place of the person ’s detention shall examine , at the instigation of the prosecutor , what grounds there may be for further detention of the person or for his or her release .

If the person placed under extradition detention , or his or her counsel or legal representative , makes a complaint , the judge at the place of the person ’s detention shall check , but not more often than once DATE , what grounds there may be for the person ’s release .

If the maximum period of extradition detention provided in paragraph CARDINAL of this article has expired , and the issue of the person ’s extradition and actual surrender has not been resolved by the central authority , the person shall be released immediately .

The fact that the person has been released from extradition detention by the court does not preclude a new order for the detention of the person , for the purpose of actual surrendering that person to a foreign ORG in execution of the decision on extradition , unless otherwise stipulated by an international treaty of GPE .

If person has been released from custody by the court , the regional prosecutor or his deputy , in agreement with the competent central authority , makes an order to apply other necessary measures to prevent the person from absconding and to ensure he is surrendered later .

Such measures shall be sufficient to ensure that the decision to extradite can be put into effect , and can , in particular , include bail , restrictions on the person ’s movement and control over his or her movements . Application of bail and of restrictions on the person ’s movements shall be carried out in accordance with the procedure envisaged by Articles DATE , CARDINAL and CARDINAL - CARDINAL of this Code , taking into account the special aspects of this LAW .

The regional prosecutor or his deputy shall notify the person concerned and his or her counsel or legal representative of the order issued in respect of the person .

The regional prosecutor or his deputy may entrust the body of inquiry with the execution of the order . ”

“ A ORG detention or extradition detention shall be terminated if :

CARDINAL ) NORP the central authority , within the time - limits provided for by an international treaty of GPE , has not received a request for the person ’s extradition ;

CARDINAL ) an extradition inquiry reveals circumstances which preclude the person ’s extradition ;

CARDINAL ) The competent authority of a foreign ORG has refused to seek the person ’s extradition ;

CARDINAL ) NORP the central authority decides to refuse the person ’s extradition .

The person ’s release shall be carried out by the regional prosecutor or his deputy on the instruction at the ( request ) of the central authority and in the circumstances provided for in paragraph CARDINAL of this LAW , in agreement with the relevant central authority . A copy of the release decision shall be sent to the head of the pre - trial detention institution and to the court which decided on the application of provisional detention or extradition detention . ”

“ ... A person who has been granted refugee status may not be extradited to a foreign state where his health , life , or freedom is endangered for reasons of race , faith ( religion ) , ethnicity , citizenship ( nationality ) , membership of a particular social group or political opinion , unless otherwise provided by an international treaty to which GPE is a party .

In the event of refusal of extradition on grounds of nationality , refugee status or other grounds that do not exclude proceedings in the case , at the request of the competent authority of a foreign state ORG of GPE instructs a pre - trial investigation body to carry out an investigation of the criminal case against that person in accordance with the procedure prescribed by this Code . ”

Section CARDINAL of the LAW reads :

“ No refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race , religion , ethnicity , nationality , membership of a particular social group or political opinion .

No refugee may be expelled or forcibly returned to a country where he or she may suffer torture and other severe , inhuman or degrading treatment or punishment , or to a country from where the refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race , religion , ethnicity , nationality , membership of a particular social group or political opinion .

This Article shall not apply to refugees convicted of a serious crime in GPE . ”