(Application no. 656/06)
11 October 2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nasrulloyev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr A. Wampach, Deputy Section Registrar,
Having deliberated in private on 20 September 2007,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Historical background
B. The applicant's arrest and detention with a view to extradition
“Having heard the parties to the proceedings, the court finds the [prosecution's] request justified because the criminal-procedure laws governing application of measures of restraint have been complied with and the case file contains sufficient grounds showing that no measure of restraint other than deprivation of liberty may be applied to the accused. Mr Nasrulloyev is charged with serious and particularly serious crimes carrying a penalty of no less than two years' imprisonment. His name is on the international list of fugitives from justice. Furthermore, the court considers that, since Mr Nasrulloyev is a foreign national and has no permanent place of residence within Russian territory, he may abscond from investigation and prosecution or otherwise hinder the criminal proceedings.”
The District Court did not set a time-limit for detention.
“The measure of restraint was imposed on Mr Nasrulloyev exclusively for the purposes of providing legal assistance in criminal proceedings conducted in Tajikistan. The procedure for detaining persons with a view to extradition is governed by Chapter 54 of the Code of Criminal Procedure of the Russian Federation.
Chapter 54 does not limit the period of detention of individuals whose extradition is being sought... The international-law instruments submitted to the court do not limit [that period] either. In these circumstances, the court considers unsubstantiated counsel's reliance on Article 109 of the Code of Criminal Procedure and their reference to the fact that Mr Nasrulloyev's detention had never been extended.
In the territory of the Russian Federation there is no investigation of Mr Nasrulloyev and he is not a party to criminal proceedings within the meaning of the Russian Code of Criminal Procedure...
The court also takes into account the fact that the decision on Mr Nasrulloyev's extradition has not been taken to date because he had applied for asylum in Russia and then lodged an appeal against the decisions... rejecting his asylum claim.”
C. Decision to extradite the applicant and application of an interim measure under Rule 39 of the Rules of Court
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. The Russian Constitution
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
B. The 1993 Minsk Convention
Article 61. Arrest or detention before the receipt of a request for extradition
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order or a final conviction and shall indicate that a request for extradition will follow...”
Article 62. Release of the person arrested or detained
“1. A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest...”
Article 67. Surrender of the person being extradited
“The requested Party shall notify the requesting Party of the place and time of surrender. If the requesting Party does not accept the person being extradited within fifteen days of the scheduled date of surrender, that person shall be released.”
C. The European Convention on Extradition
Article 16 – Provisional arrest
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
4. 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.”
D. The Code of Criminal Procedure
E. Case-law of the Constitutional Court
1. Decision no. 101-O of 4 April 2006 in the case of Mr Nasrulloyev
In the Constitutional Court's view, the absence of a specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for examination of extradition requests.
The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without respecting the procedure established in the Code of Criminal Procedure or in excess of time-limits fixed in the Code.
2. Decision no. 158-O of 11 July 2006 on the Prosecutor General's request for clarification
The Constitutional Court dismissed the request, finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of courts of general jurisdiction.
F. Case-law of the Supreme Court
“The term of detention of the person who is to be extradited to the place of commission of the offence... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], the person arrested at the request of a foreign state, may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).”
I. ALLEGED VIOLATION OF ARTICLES 3 AND 18 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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 against whom action is being taken with a view to ... extradition.”
1. Submissions by the parties
2. General principles
3. Application of the general principles in the present case
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“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.”
There has therefore been a violation of Article 5 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 40,000 (forty thousand euros) in respect of non-pecuniary damage;
(ii) EUR 1,400 (one thousand four hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable;
(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;
Done in English, and notified in writing on 11 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President