(Application no. 2947/06)
24 April 2008
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 Ismoilov and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 27 March 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Situation in Uzbekistan: Events in Andijan on 13 May 2005 and their aftermath
B. The applicants' background and their arrival in Russia
C. The applicants' arrest and the request for their extradition to Uzbekistan
D. Complaint of unlawful detention
E. Detention order
F. Applications for release
“Russian law in substance prohibits impermissibly excessive, unlimited and uncontrolled detention.
[The applicants'] detention cannot be said to be impermissibly excessive, unlimited or uncontrolled, because it has not exceeded the time-limit set in Article 109 of the Criminal Procedure Code.
[The applicants] were held in detention pending the decisions by the Prosecutor General's office to extradite [them] to Uzbekistan. Those decisions were only taken on [27, 31 July, or 1 August 2006].
Moreover, [the applicants'] detention was prolonged as a result of [their] application for refugee status to the Ivanovo Region Federal Migration Service and [their] challenges of the Federal Migration Service decisions before the courts. Therefore, the detention has not been excessive.”
G. Applications for refugee status
“In the UNHCR's opinion, in Uzbekistan criminal prosecution of people accused of involvement in the activities of extremist religious organisations can be arbitrary in nature and can result in violations of inalienable human rights, including arbitrary arrest, torture, violations of fair trial guarantees, imposition of penalty unproportionate to the committed crime. Moreover, as the Uzbek authorities do not tolerate any forms of opposition, there is a high risk of attributing membership of such religious organisations to people who have been noticed for their opposition views or who are perceived by the authorities as supporters of opposition groups. Therefore, there is a great risk that people involved in the activities of such religious organisations, or to whom such an involvement is attributed by the authorities, can be persecuted for the reasons enumerated in the 1951 Convention relating to the status of refugees which was ratified by the Russian Federation in 1993, especially taking into account the lack of an effective mechanism of legal guarantees in [Uzbekistan].”
“We are deeply concerned about [the applicants'] fate if their application is dismissed and they are extradited to Uzbekistan. It would be a breach of the prohibition against returning individuals to a country where they will face the risk of being subjected to torture... In Uzbekistan ... torture is systematic. People accused of participation in the Andijan events are at an increased risk of torture: we have documented tens of cases of extraction of confessions by means of torture and other forms of inhuman and degrading treatment.
Confessions obtained under duress serve as a basis for criminal prosecution. Trials of people charged in connection with the May massacre in Andijan fell far short of international procedural standards. Courts in Uzbekistan are not independent, the defendants are deprived of their right to effective defence, and convictions are based exclusively on doubtful confessions of defendants and statements by prosecution witnesses. In breach of Uzbek and international law cases of tens of defendants are examined in closed trials. Serious doubts as to fairness of the Andijan trials were expressed by the UN High Commissioner for Human Rights.”
“The court considers that the Ivanovo Regional Department of the Federal Migration Service ... correctly disregarded the Andijan events and their aftermath because [the applicants] denied ... involvement in those events and had come to Russia long before they occurred.”
H. Decisions to extradite the applicants and subsequent appeal proceedings
“On the night of 12-13 May 2005 [an applicant], acting in criminal conspiracy and being a member of the religious extremist party Hizb-ut-Tahrir al-Islami, committed the following offences in aggravating circumstances: attempted overthrow of the constitutional order of the Uzbekistan Republic, murder, terrorism, and organised mass disorders in Andijan with the aim of destabilising the socio-political situation in Uzbekistan.”
“[An applicant] has been a member of an extremist organisation; he disseminated materials liable to undermine public security and public order, in conspiracy with others and with financial backing from religious organisations. On the night of 12-13 May 2005 [the applicant], acting in criminal conspiracy and being a member of the religious extremist party Hizb-ut-Tahrir al-Islami, unlawfully obtained weapons and ammunition and committed the following offences in aggravating circumstances: the attempted overthrow of the constitutional order of the Uzbekistan Republic, murder, terrorism, subversive activities, and organised mass disorders in Andijan with the aim of destabilising the socio-political situation in Uzbekistan.”
I. Reports on Uzbekistan by the UN Institutions and NGOs
“66. The combination of a lack of respect for the principle of presumption of innocence despite being guaranteed by the Constitution (art. 25) and [the Code of Criminal Procedure] (art. 23), the discretionary powers of the investigators and procurators with respect to access to detainees by legal counsel and relatives, as well as the lack of independence of the judiciary and allegedly rampant corruption in the judiciary and law enforcement agencies, are believed to be conducive to the use of illegal methods of investigation. The excessive powers in the overall criminal proceedings of procurators, who are supposed at the same time to conduct and supervise preliminary criminal investigations, to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention, make investigations into complaints overly dependent on their goodwill.
67. The Special Rapporteur regrets the absence of legal guarantees such as the right to habeas corpus and the right to prompt and confidential access to a lawyer and relatives. He further observes that pre-trial detainees are held in facilities which are under the same jurisdiction as investigators in the case...
68. The Special Rapporteur believes, on the basis of the numerous testimonies (including on a number of deaths in custody) he received during the mission, not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations, that torture or similar ill-treatment is systematic as defined by the Committee against Torture. Even though only a small number of torture cases can be proved with absolute certainty, the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process cannot be denied. The Special Rapporteur also observes that torture and other forms of ill-treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.”
“42. The main relevant concerns identified by the United Nations human rights treaty bodies and the special procedures of the Commission can be summarized as follows: violations of the right to life, in particular the execution of prisoners under sentence of death despite requests for interim measures by the Human Rights Committee; violations of the principle of prohibition of torture, in particular the systematic and widespread use of torture, the high numbers of convictions based on confessions extracted by torture and the use of 'solved crimes' as a criterion for the promotion of law enforcement personnel; violations of fair trial provisions, in particular the lack of access to legal counsel, the lack of independence of the judiciary and of the respect of the principle of 'equality of arms'; the lack of a definition of 'terrorist acts'; and violations of freedom of opinion and expression, of the press and media and of freedom of association and freedom of religion...
55. There is an urgent need for a stay of deportation to Uzbekistan of the Uzbek asylum-seekers and eyewitnesses of the Andijan events who would face the risk of torture if returned.”
“Amnesty International is concerned by reports of alleged torture and other ill-treatment by law enforcement officials in the aftermath of the events in Andijan. Individuals, who have been detained and subsequently released, claimed that the detainees were being subjected to various forms of torture and other ill-treatment including beatings, beating of the heels with rubber truncheons, and the insertion of needles into gums and under fingernails. Torture and other ill-treatment have reportedly been used to force detainees to 'confess' to being involved in religious extremism. A senior policeman who spoke anonymously to IWPR claimed to have witnessed law enforcement officials threatening to rape a detainee's female relative if he did not confess to being involved in the events in Andijan. Amnesty International has also received reports that the detainees have been sexually assaulted with truncheons...
Amnesty International considers individuals charged in connection with the events in Andijan to be at serious risk of being tried in a manner that violates even the most basic international fair trial standards. In April 2005 the UN Human Rights Committee expressed its concern about continuing violations of the right to a fair trial in Uzbekistan... In particular, the Committee expressed concern that the judiciary is not fully independent and pointed to the high number of convictions based on 'confessions' made in pre-trial detention that were allegedly obtained by torture or other ill-treatment. The Committee also expressed concern that the right of access to a lawyer from the time of arrest is often not respected in practice...
On 1 August 2005 the government announced that it would abolish the death penalty as of 1 January 2008. Amnesty International welcomes this development but is concerned that unless fundamental changes are introduced immediately then scores of people are likely to be sentenced to death and executed before January 2008. In previous reports Amnesty International has documented that Uzbekistan's flawed criminal justice system provides fertile ground for miscarriages of justice and executions due to judicial error or grossly unfair trials. Amnesty International is also concerned that the August 2005 announcement may come too late to protect those people who have been charged with capital crimes – premeditated aggravated murder and terrorism – in connection with the events in Andijan. Amnesty International considers that these individuals are at great risk of suffering a violation of their right to life as a result of the likely imposition of the death penalty following what would likely be an unfair trial. The death penalty has played an important role in the clampdown on 'religious extremism' in Uzbekistan and dozens of alleged 'Islamists' have been sentenced to death and executed without being granted the right to effective assistance of counsel and to prepare a defence... In April 2005 the Human Rights Committee deplored the fact that at least 15 individuals have been executed by the Uzbek authorities, while their cases were pending before the Human Rights Committee.”
“Amnesty International is concerned for the safety of all those individuals who have been detained in connection with the events in Andijan. These concerns are based on Uzbekistan's well-documented history of human rights violations in the name of national security. Amnesty International considers all such detained individuals to be at serious risk of being subjected to torture and other ill-treatment. Amnesty International also considers those individuals who have been charged with criminal offences to be at risk of being tried in a manner that violates international fair trial standards. ... [I]ndividual[s] who have been charged with capital offences are at great risk of suffering a violation of their right to life, as a result of likely imposition of the death penalty following an unfair trial.”
J. Information on the fate of the asylum-seekers extradited to Uzbekistan
“18. On 9 August 2006, the Government of Kyrgyzstan extradited four Uzbek refugees and one asylum-seeker to Uzbekistan... Back in Uzbekistan, the five Uzbek citizens face a series of charges, including terrorism, the attempted overthrow of the constitutional order of the Republic of Uzbekistan, and the establishment of an illegal organization. As per information received by OHCHR, no one has been granted access to the five since their return.
19. The fate of four other Uzbek individuals, who fled the Andijan events to Kyrgyzstan and were forcibly returned to Uzbekistan in June 2005, remains unclear. Though the Government of Uzbekistan informed OHCHR about their whereabouts, no international body has been granted access to them thus far.
20. UNHCR continues to be concerned about the fate of an increasing number of Uzbek asylum-seekers and refugees, some of whom fled the Andijan events, who have been detained in countries of the Commonwealth of Independent States and forcibly returned to Uzbekistan despite a real risk of mistreatment in breach of international standards. In February 2006, 11 Uzbek asylum-seekers were forcefully returned from Ukraine to Uzbekistan. In a press statement of 16 February 2006, UNHCR said that it was appalled by this forceful deportation. Thus far, the Office of the United Nations High Commissioner for Refugees (UNHCR) has not had access to the 11 individuals... According to information received by OHCHR, no access has been granted to these individuals since their return to Uzbekistan.
21. OHCHR is concerned about other individuals who have fled since the Andijan events and who are under pressure from the Government of Uzbekistan or the host country to return despite a real risk of mistreatment in breach of international standards...
46. In an interview of 10 April 2006, the Special Rapporteur on the question of torture said that 'there is ample evidence that both police and other security forces have been and are continuing to systematically practise torture, in particular against dissidents or people who are opponents of the regime'...
48. The Human Rights Committee, in its concluding observations of 31 March 2005 (CCPR/OP/83/UZB), remained concerned about the high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the International Covenant on Civil and Political Rights. The Committee expressed concern at the definition of torture in the Criminal Code of Uzbekistan. In addition, the Committee pointed to the allegations relating to widespread use of torture and ill-treatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. The Government of Uzbekistan was due to submit follow-up information by 26 April 2006 on these issues in accordance with the request of the Committee. So far, no such information has been submitted to the Human Rights Committee.”
“Scores of people suspected of involvement in the Andijan events have been sentenced to long terms, in vast majority in closed secret trials, in violation of international fair trial standards. Most had been held incommunicado for several months in pre-trial detention...
The Uzbek authorities have also continued to actively – and often successfully – seek the extradition of members or suspected members of banned Islamic parties or movements, such as Hizb-ut-Tahrir and Akramia, whom they accuse of participation in the Andijan events, from neighbouring countries, as well as Russia and Ukraine. Most of the men forcibly returned to Uzbekistan continue to be held in incommunicado detention, thus increasing fears that they are at risk of being tortured or otherwise ill-treated. Over the years Amnesty International has documented many cases of people forcibly returned or extradited to Uzbekistan at the request of the Uzbek authorities who were tortured to extract 'confessions', sentenced to death after unfair trials and executed.”
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE
A. Detention pending extradition and judicial review of detention
1. 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.”
2. The European Convention on Extradition
“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.”
3. The 1993 Minsk Convention
4. The Code of Criminal Procedure
5. Code of Civil Procedure
6. Case-law of the Constitutional Court
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 complying with the procedure established in the Code of Criminal Procedure or the time-limits fixed in the Code.
B. Status of refugees
1. The 1951 Geneva Convention on the Status of Refugees
“1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
2. Refugees Act
C. Relevant United Nations' and Council of Europe's documents concerning the use of diplomatic assurances
“The General Assembly
8. Urges States not to expel, return ('refouler'), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement...”
“51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return.
52. The Special Rapporteur calls on Governments to observe the principle of non-refoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognized as refugees.”
“The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven's visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.”
22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases.
23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that 'unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel'. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling
'...the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.'
24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and nonderogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that:
'in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.'”
“38. Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment.
39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case?
40. In response, it has been argued that mechanisms can be devised for the post-return monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism. To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.”
I. ADMISSIBILITY OF THE APPLICATION
“3. The Court shall declare inadmissible any individual application ... which it considers ... an abuse of the right of application.
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions
B. The Court's assessment
1. General principles
“66. The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. The right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 34, § 102).
67. It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 89-91).
68. It would hardly be compatible with the 'common heritage of political traditions, ideals, freedom and the rule of law' to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment (see Soering, cited above, pp. 34-35, § 88).
69. In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. Since the nature of the Contracting States' responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition; the Court is not precluded, however, from having regard to information which comes to light subsequent to the extradition. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party of the well-foundedness or otherwise of an applicant's fears (see Cruz Varas and Others v. Sweden, judgment of 20 March 1991, Series A no. 201, pp. 29-30, §§ 75-76, and Vilvarajah and Others, cited above, p. 36, § 107).
However, if the applicant has not been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1856, §§ 85-86).
This situation typically arises when deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court. Such an indication means more often than not that the Court does not yet have before it all the relevant evidence it requires to determine whether there is a real risk of treatment proscribed by Article 3 in the country of destination.
70. Furthermore, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects (see Vilvarajah and Others, cited above, p. 36, § 107).
Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30).”
2. Application to the present case
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Compliance with Article 5 § 1
“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. The parties' submissions
2. The Court's assessment
B. Compliance with Article 5 § 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.”
1. The parties' submissions
2. The Court's assessment
There has therefore been a violation of Article 5 § 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
V. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
A. The parties' submissions
B. The Court's assessment
VI. 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
Mr Alimov: EUR 1,051;
Mr Ismoilov: EUR 1,200;
Mr Kasimhujayev: EUR 765;
Mr Rustamhodjaev: EUR 671;
Mr Makhmudov: EUR 887;
Mr Usmanov: EUR 810;
Mr Muhamadsobirov: EUR 810;
Mr Muhametsobirov: EUR 741;
Mr Ulughodjaev: EUR 876;
Mr Sabirov: EUR 798;
Mr Naimov: EUR 727;
Mr Hamzaev: EUR 873;
Mr Tashtemirov: EUR 883.
Mr Alimov: EUR 1,545;
Mr Ismoilov: EUR 1,694;
Mr Kasimhujayev: EUR 1,259;
Mr Rustamhodjaev: EUR 1,165;
Mr Makhmudov: EUR 1,381;
Mr Usmanov: EUR 1,304;
Mr Muhamadsobirov: EUR 1,304;
Mr Muhametsobirov: EUR 1,235;
Mr Ulughodjaev: EUR 1,370;
Mr Sabirov: EUR 1,292;
Mr Naimov: EUR 1,221;
Mr Hamzaev: EUR 1,367;
Mr Tashtemirov: EUR 1,377.
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, 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 15,000 (fifteen thousand euros) to each of the applicants in respect of non-pecuniary damage;
(ii) the following amounts in respect of the legal representation:
Mr Alimov: EUR 1,545 (one thousand five hundred and forty-five euros);
Mr Ismoilov: EUR 1,694 (one thousand six hundred and ninety-four euros);
Mr Kasimhujayev: EUR 1,259 (one thousand two hundred and fifty-nine euros);
Mr Rustamhodjaev: EUR 1,165 (one thousand one hundred and sixty-five euros);
Mr Makhmudov: EUR 1,381 (one thousand three hundred and eighty-one euros);
Mr Usmanov: EUR 1,304 (one thousand three hundred and four euros);
Mr Muhamadsobirov: EUR 1,304 (one thousand three hundred and four euros);
Mr Muhametsobirov: EUR 1,235 (one thousand two hundred and thirty-five euros);
Mr Ulughodjaev: EUR 1,370 (one thousand three hundred and seventy euros);
Mr Sabirov: EUR 1,292 (one thousand two hundred and ninety-two euros);
Mr Naimov: EUR 1,221 (one thousand two hundred and twenty-one euros);
Mr Hamzaev: EUR 1,367 (one thousand three hundred and sixty-seven euros);
Mr Tashtemirov: EUR 1,377 (one thousand three hundred and seventy-seven euros);
(iii) EUR 195 (one hundred ninety-five euros) to Mr Alimov in respect of postal expenses;
(iv) any tax that may be chargeable to the applicants on the above amounts;
(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 24 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Kovler is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE KOVLER
I share the conclusions of the Chamber as to the admissibility of the remainder of the application, in view of the seriousness of the applicants' allegations. I also concur with its conclusions concerning the violation of Article 5 §§ 1 and 4 of the Convention, as the reasoning of the Chamber follows the approach established in the case of Nasrulloyev v. Russia (no. 656/06, 11 October 2007), in which the Court found that the legal provisions on detention pending extradition did not meet the “quality of law” requirement, in breach of Article 5 § 1, and did not provide for judicial review of such detention, contrary to Article 5 § 4 of the Convention.
My dissent concerns some of the other conclusions.
The Chamber justified this departure from Mamatkulov by assessing the current position of the applicants in the light of the evolution of the situation in the receiving country, as stipulated by our case-law (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, § 86). I could agree with this approach if I were persuaded that the extradition of the applicants was inevitable or was even carried out. But the Chamber's analysis of the facts of this extremely sensitive and constantly evolving case stops with the applicants' release on 5 March 2007 (that is, more than one year before adoption of the judgment!) (§ 50) and with the ruling of the Ivanovo Regional Court of 27 March 2007 upholding the decisions releasing them (§ 51). According to the Russian media the applicants left Russian territory for “third countries”; however, this information was not confirmed or refuted by the parties and the Court did not take the trouble to obtain information concerning the applicants' current situation (the application of Rules 39 and 41 of the Rules of Court provides such an opportunity). As my colleague Judge Zupančič stressed in his concurring opinion in Saadi, speaking about the “Chahal test”, “one cannot prove a future event to any degree of probability because the law of evidence is a logical rather than a prophetic exercise. It is therefore an understatement to say that the application of the Chahal test is 'to some degree speculative'” (see Saadi, cited above, concurring opinion of Judge Zupančič). Accordingly, I favoured a clear position of non-violation over a “prophetic exercise” or “some degree of speculation”, precisely because of the lack of specific information concerning the current situation of the applicants.
I would recall that in its decision in Zollmann v. the United Kingdom the Court stated: “Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. Where no such proceedings are, or have been in existence, statements attributing criminal or other reprehensible conduct are relevant rather to considerations of protection against defamation and adequate access to court to determine civil rights and raising potential issues under Articles 8 and 6 of the Convention” (see Zollmann v. the United Kingdom (dec.), no. 62902/00, 27 November 2003).
In the present case the applicants were not charged with any criminal offence in Russia, nor was there any pending or intended criminal investigation against them in Russia, the outcome of which might have been said to be prejudged by the statements of the First Deputy Prosecutor General of the Russian Federation. Moreover, I cannot consider that any close link, in legislation, practice or fact, was established between the statements by the Russian prosecutor and the criminal proceedings pending against the applicants in Uzbekistan. I saw no need to speculate as to how the prosecutor's statements (despite their strictly professional wording) might have unduly influenced the judicial authorities of another sovereign State competent to decide on the applicants' guilt or innocence.