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ISMOILOV AND OTHERS v. RUSSIA - 2947/06 [2008] ECHR 348 (24 April 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/348.html
Cite as:
[2008] ECHR 348,
49 EHRR 42,
(2009) 49 EHRR 42
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FIRST
SECTION
CASE OF ISMOILOV AND OTHERS v. RUSSIA
(Application
no. 2947/06)
JUDGMENT
STRASBOURG
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:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
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:
PROCEDURE
The
case originated in an application (no. 2947/06) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by twelve Uzbek nationals, Mr Ilhomjon Ismoilov,
Mr Rustam Naimov, Mr Izzatullo Muhametsobirov, Mr Abdurrauf
Muhamadsobirov, Mr Sardorbek Ulughodjaev, Mr Obboskhon Makhmudov, Mr
Umarali Alimov, Mr Kabul Kasimhujayev, Mr Hurshid Hamzaev, Mr
Iskanderbek Usmanov, Mr Shkrullo Sabirov, and Mr Mahmud
Rustamhodjaev, and a Kyrgyz national, Mr Mamirgon Tashtemirov (“the
applicants”), on 18 January 2006.
The applicants, who have been granted legal aid, were represented
before the Court by Ms I. Sokolova, a lawyer practising in Ivanovo.
The Russian Government (“the
Government”) were initially represented by Mr P. Laptev,
the former Representative of the Russian Federation at the European
Court of Human Rights, and subsequently by their Representative, Mrs
V. Milinchuk.
On
7 August 2006 the President of the Chamber indicated to the
respondent Government that the applicants should not be extradited to
Uzbekistan until further notice (Rule 39 of the Rules of Court).
On 12 December 2006 the Court decided that the interim measure
should remain in force and granted priority to the application (Rule
41 of the Rules of Court).
On
12 December 2006 the Court declared the application partly
inadmissible and decided to communicate to the Government the
applicants' complaints that their extradition to Uzbekistan would
subject them to the risk of ill-treatment and of an unfair trial,
that their detention pending extradition was unlawful, that there had
been no effective judicial review of their detention, and that their
right to be presumed innocent had been violated. Under the provisions
of Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility.
The
applicants and the Government each filed their observations.
Observations were also received from the human-rights organisations
Human Rights Watch and the AIRE Centre, which had been given leave by
the President to intervene in the written procedure (Article 36 §
2 of the Convention and Rule 44 § 2 of the Rules of Court).
The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Situation in Uzbekistan: Events in Andijan on 13 May
2005 and their aftermath
According
to reports by Amnesty International and Human Rights Watch between
June and August 2004 twenty-three businessmen were arrested in
Andijan (Uzbekistan). In September 2004 twenty of their employees
were detained in Tashkent. Another group of thirteen businessmen were
arrested in Andijan in February 2005. All of them were accused of
involvement with an organisation by the name of Akramia, charged with
criminal offences and committed for trial.
The
Uzbek government claimed that Akramia was an extremist religious
group. They maintained that in his writings the group's leader, Akram
Yuldashev, had called for the formation of an Islamic state in
Uzbekistan and for the ousting of the legitimately elected State
representatives. They also claimed that Akramia was a branch of
Hizb-ut-Tahrir, which was categorised as a terrorist organisation in
Uzbekistan. In contrast, Akram Yuldashev always insisted that he had
no interest in politics. He maintained that he had never called for
the overthrow of the authorities or for the creation of an Islamic
state. His writings did not touch upon political issues, but rather
on general moral themes. A circle of sympathisers had formed around
him, who tried to follow his view of Islam in their own lives. Akram
Yuldashev's supporters argued that there was no such thing as an
organised group known as Akramia. The name “Akramia” was
derived by an Uzbek court in 1999 from Akram Yuldashev's first name.
Furthermore, Akram Yuldashev and his supporters denied having any
links with Hizb-ut-Tahrir.
The
verdict in respect of the twenty-three businessmen was expected on 11
May 2005. However, its pronouncement was postponed. A group of
supporters who gathered in front of the court building to protest the
businessmen's innocence and demand justice were arrested on 11 and
12 May 2005.
In
the early hours of 13 May 2005 armed men attacked a number of
military barracks and government buildings in Andijan, killing and
injuring several guards, and seizing weapons and a military vehicle.
They broke into the city prison, where they freed the businessmen and
hundreds of remand and convicted prisoners, and later occupied a
regional government building on the main square and took a number of
hostages.
At
the same time thousands of unarmed civilians gathered in the main
square, where many spoke out to demand justice and an end to poverty.
In the early evening the security forces surrounded the demonstrators
and started to shoot indiscriminately at the crowd. The demonstrators
attempted to flee. According to witnesses, hundreds of people –
including women and children – were killed. The Uzbek
authorities deny responsibility for the deaths, blaming them on
Islamic “extremist” organisations, such as Akramia and
Hizb-ut-Tahrir, who were intent on overthrowing the government and
creating an Islamic state in Uzbekistan.
Hundreds
of people suspected of involvement in the 13 May events were detained
and charged. The charges included “terrorism” and
premeditated, aggravated murder – capital offences – as
well as attempting to overthrow the constitutional order and
organising mass disturbances. At least 230 people were convicted and
sentenced to between twelve and twenty-two years' imprisonment for
their alleged participation in the unrest. All trials except one were
closed to the public. The defendants' relatives and international
observers were denied access to the courtroom. The Organisation for
Security and Co-operation in Europe (OSCE) and Human Rights Watch
observers who were present at the only public trial from September to
November 2005 were unanimous in their conclusion that the trial fell
far short of international standards. They noted that all the
defendants pleaded guilty to charges of “terrorism” and
asked for forgiveness, while several even requested that they be
given the death penalty. Their confessions, which were obtained from
them during incommunicado pre-trial detention, closely followed the
wording of the indictment. The observers expressed concerns that the
defendants could have been subjected to torture and that their
confessions could have been extracted under duress. Retained lawyers
were not allowed to the detention centres or in the courtroom and
were barred from representing their clients. The defendants were
represented by State-appointed counsel who did not mount an active
defence of the accused. There was no cross-examination of defendants
or witnesses, and contradictions in the testimonies were not
addressed. No witnesses for the defence were called to testify. The
prosecution did not introduce any forensic, ballistic, or medical
reports, nor did it present any exhibits or call expert witnesses.
All the defendants were found guilty, predominantly on the basis of
their confessions, and sentenced to terms of imprisonment ranging
from fourteen to twenty years (see Human Rights Watch report of 12
May 2006 “The Andijan Massacre: one year later, still no
justice”; and the report of 21 April 2006 from the OSCE/ODIHR
“Trial monitoring in Uzbekistan – September/October
2005”).
B. The applicants' background and their arrival in
Russia
All
the applicants stated that they were Muslims. They denied membership
of any political or religious organisations.
In
2000 Mr Muhamadsobirov was arrested in Uzbekistan by the Uzbekistan
National Security Service (“the SNB”). He stated that the
SNB agents had repeatedly beaten him, threatened to rape his wife and
demanded he confessed to planning a violent overthrow of the State.
He was subsequently convicted for distributing Islamic leaflets. In
prison Mr Muhamadsobirov was repeatedly beaten by the wardens
and tortured with electric shocks. He was placed in a punishment cell
if he prayed. Food was scarce and the inmates were starving. He was
released in 2003. The SNB agents repeatedly threatened to re-arrest
him and to fabricate new criminal charges. He left for Russia on 19
February 2004.
His
brother, Mr Muhametsobirov, moved to Russia in 2000. He has been
living in Russia ever since.
Mr Kasimhujayev
and Mr Rustamhodjaev have been living in Russia since 2001.
Mr
Usmanov, Mr Naimov, Mr Makhmudov, and Mr Alimov were partners in
private companies in Tashkent or Andijan. Mr Ismoilov,
Mr Ulughodjaev, and Mr Sabirov were employees of private
companies. In autumn 2004 the tax authorities and the SNB launched an
inquiry into the companies' tax affairs. The applicants were
repeatedly questioned about business matters and about their or their
relatives' alleged participation in Akramia's activities. The SNB
agents threatened to arrest Mr Ulughodjaev and Mr Sabirov.
In January 2005 business partners of Mr Usmanov, Mr Makhmudov,
and Mr Alimov were arrested.
Mr
Naimov was arrested by the SNB in September 2004 and held in
detention for fifteen days. He stated that he had been subjected to
repeated beatings and questioned about his business and alleged
membership of Akramia. After his release he was summoned to the SNB
office on several occasions where the SNB agents threatened him and
his family.
Mr
Usmanov, Mr Naimov, Mr Makhmudov, Mr Alimov, Mr Ismoilov,
Mr Ulughodjaev, and Mr Sabirov left Uzbekistan for Russia
between January and March 2005 for fear of persecution.
Mr
Hamzaev owned a company in the town of Kokand (Uzbekistan). He has
never been to Andijan. He travelled to Russia on 23 April 2005 on
business.
Before
2003 Mr Tashtemirov lived in Kyrgyzstan. In 2003 he moved to Turkey.
He has never been to Uzbekistan. In June 2005 he went to Russia on a
business trip.
On
13 May 2005 all the applicants except Mr Tashtemirov and
Mr Kasimhujayev were in Russia. Mr Tashtemirov was in Turkey and
Mr Kasimhujayev in Andijan. However, he denied any involvement
in the Andijan events.
After
the May events two of Mr Ismoilov's brothers were arrested. Their
fate remains unknown.
C. The applicants' arrest and the request for their
extradition to Uzbekistan
On
2 February 2005 the Tashkent prosecutor's office accused Mr Naimov
of membership of Akramia, and charged him with organising a criminal
conspiracy, attempting to overthrow the constitutional order of
Uzbekistan, membership of an illegal organisation and the possession
and distribution of subversive literature (Articles 159 § 4, 242
§ 1, 244-1 § 3, and 244-2 § 1 of the Uzbekistan
Criminal Code). On 25 May 2005 it ordered his arrest.
On
17, 18 and 19 June 2005 the Uzbekistan prosecutor's office charged
the other applicants with membership of extremist organisations, such
as Akramia, Hizb-ut-Tahrir and the Islamic Movement of Turkestan,
financing terrorist activities, attempting a violent overthrow of the
constitutional order of Uzbekistan, aggravated murder and organising
mass disorders on 13 May 2005 in Andijan (offences under
Articles 97 § 2 (a, d, j and m), 155 § 3 (a and b), 159 §
3 (b), 242 § 2, and 244 of the Uzbekistan Criminal Code). Some
of the applicants were also charged with involvement in subversive
activities, unlawful possession of firearms, and the dissemination of
materials liable to undermine public security and public order, in
conspiracy with others and with financial backing from religious
organisations (Articles 161, 244-1 § 3, 244-2, and 247 § 3
of the Uzbek Criminal Code). On the same dates the Tashkent and
Andijan prosecutor's offices ordered the applicants' arrest.
At the material time aggravated murder (Article 97 §
2 of the Criminal Code) and terrorism (Article 155 § 3 of the
Criminal Code) were capital offences in Uzbekistan. However,
Uzbekistan abolished the death penalty with effect from 1 January
2008 and replaced it with life imprisonment. The remaining offences
are punishable by terms of imprisonment ranging from five to twenty
years.
The applicants said that on 18 June 2005 they had been
arrested in Ivanovo. They had not been informed of the reasons for
their arrest. On 20 June 2005 they had been questioned by SNB
agents from Uzbekistan who had beaten them and threatened them with
torture in Uzbekistan. They had been told that they would be forced
to confess to various crimes and be sentenced to long prison terms or
death.
The
documents issued by various State authorities indicate inconsistent
dates of, and reasons for, the applicants' arrest. Thus, on
6 December 2005 the officer in charge of the Oktyabrskiy
District Police Station affirmed that Mr Ismoilov, Mr Usmanov, and Mr
Tashtemirov had been arrested on 19 June 2005 and charged with
administrative offences for uttering obscenities in public and
refusing to produce identity documents. A police report dated 20 June
2005 stated that the applicants had been arrested on that day because
they were wanted by the Uzbek police. However, in a letter of 16
January 2006, the Ivanovo regional police department asserted that
all the applicants had been arrested on 19 June 2005.
On
20 June 2005 the Ivanovo police informed the Tashkent police of the
applicants' arrest. On the same day the Tashkent prosecutor's office
requested the Ivanovo prosecutor's office to keep the applicants in
detention pending extradition.
In
July 2005 the Prosecutor General's Office of the Russian Federation
received requests for the applicants' extradition from the Prosecutor
General of Uzbekistan. The Uzbek prosecutor's office gave an
assurance that without Russia's consent the applicants would not be
extradited to a third-party State, or prosecuted or punished for any
offences committed before extradition and which were not mentioned in
the extradition request. It also stated that after serving their
sentences they would be free to leave Uzbekistan.
On
21 July 2005 further assurances were given by the First Deputy
Prosecutor General of Uzbekistan. He gave an undertaking that the
applicants would not be subjected to the death penalty, torture,
violence or other forms of inhuman or degrading treatment or
punishment. Their rights of defence would be respected and they would
be provided with counsel. He also gave an assurance that the Uzbek
authorities had no intention of persecuting the applicants out of
political motives, on account of their race, ethnic origin, or
religious or political beliefs. Their intention was to prosecute the
applicants for the commission of particularly serious crimes.
The Ivanovo prosecutor's office carried out an inquiry
and established that none of the applicants, except Mr Kasimhujayev,
had left Russia in May 2005. Mr Kasimhujayev had been in Andijan
from 10 to 25 May 2005. Mr Tashtemirov had arrived in
Russia from Turkey in June 2005. None of the applicants had made
money transfers to Uzbekistan in 2005.
D. Complaint of unlawful detention
On
14 July 2005 counsel for the applicants complained to the Sovetskiy
and Frunzenskiy District Courts of Ivanovo that their detention was
unlawful. She submitted that the applicants had not been served with
detention orders. On 15 July 2005 (the decisions are dated 15 May
2005, but this appears to be a misprint) the Sovetskiy and
Frunzenskiy District Courts of Ivanovo returned the complaints
because counsel had not indicated which acts or omissions of State
officials she wished to challenge, which made it impossible to
establish whether they had territorial jurisdiction to examine the
complaints.
The
applicants did not appeal.
E. Detention order
By separate decisions of 20, 25, 27, 28, and 29 July
2005, the Sovetskiy, Oktyabrskiy, Frunzenskiy, and Leninskiy District
Courts of Ivanovo ordered the applicants' detention pending
extradition on the basis of Articles 108 and 466 of the Russian Code
of Criminal Procedure (see paragraphs 85 and 87 below). They referred
to the gravity of the charges, and to the risk of the applicants'
absconding, re-offending or obstructing the investigation. It was
also noted that the applicants had absconded from Uzbekistan to
Russia. The courts held that it was not possible to apply a less
restrictive measure and that only detention could secure their
extradition and “the execution of any sentence that might be
imposed”. The courts did not set a time-limit on the detention.
On
9 or 11 August 2005 the Ivanovo Regional Court upheld the decisions
on appeal.
F. Applications for release
On
20 June 2006 counsel for the applicants asked the director of the
remand centre to release the applicants. In particular, she claimed
that Article 109 of the Code of Criminal Procedure set the maximum
period of detention at twelve months (see paragraph 85 below). A
further extension was permitted only in exceptional circumstances. As
the detention period had not been extended following the expiry of
the twelve-month period on 20 June 2006, the applicants'
subsequent detention was unlawful.
On 21 June 2006 the director of the remand centre
replied that Article 109 did not apply to cases of detention pending
extradition and refused to release the applicants.
Counsel challenged that refusal before a court,
pursuant to Articles 254 and 258 of the Civil Code (see paragraph 89
below). On 26 and 28 June 2006 the Oktyabrskiy District Court of
Ivanovo returned the complaint claiming that it had to be examined in
criminal, not civil, proceedings. On 31 July, 7, 21, and 23 August
2006 the Ivanovo Regional Court upheld those decisions on appeal.
On
30 June 2006 counsel for the applicants petitioned the Sovetskiy,
Oktyabrskiy, Frunzenskiy, and Leninskiy District prosecutors for the
applicants' release. On 3 and 10 July 2006 the prosecutors rejected
their applications. They pointed out that domestic law did not set a
maximum period for detention pending extradition or establish a
procedure for the extension of such detention.
In
July 2005 counsel lodged applications for release with the Sovetskiy,
Oktyabrskiy, Frunzenskiy, and Leninskiy District Courts of Ivanovo.
She reiterated the arguments set forth in her complaint of 20 June
2006 and submitted that the director of the detention centre and the
prosecutors had acted unlawfully in refusing release.
On 1 August 2006 the Sovetskiy District Court refused
to entertain the applications for release. It held, firstly, that
they could not be examined in criminal proceedings because there were
no criminal proceedings pending against the applicants in Russia. It
further held that domestic law did not set a maximum period for
detention pending extradition and added:
“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.”
On 24 August 2006 the Ivanovo Regional Court upheld
that decision on appeal. It endorsed the reasoning of the District
Court and indicated that the applications were to be examined in
civil proceedings.
On 26 July, 7 and 8 September 2006 the Frunzenskiy
District Court returned the applications of Mr Rustamhodjaev and Mr
Kasimhujayev because their applications could not be examined in
criminal proceedings. It also pointed out that Article 109 of the
Code of Criminal Procedure did not apply to detention pending
extradition. On 17 October 2006 the Ivanovo Regional Court upheld
those decisions on appeal.
Mr Tashtemirov's applications were disallowed in
decisions of 28 July and 4 September 2006 by the
Oktyabrskiy District Court, which held that domestic law did not set
a maximum period for detention pending extradition and that there was
no reason to vary the preventive measure. On 22 August and 28
September 2006 the Ivanovo Regional Court upheld those decisions on
appeal.
Mr Alimov contested the refusal to release him under
Article 125 of the Code of Criminal Procedure (see paragraph 86
below). On 18 September 2006 the Leninskiy District Court refused to
entertain his application. It found that such complaints were to be
filed with a court having jurisdiction for the place where the
preliminary investigation was carried out. Since Mr Alimov was
not the subject of any investigation in Russia, his application for
release could not be examined in Russian criminal proceedings. It
indicated that the application for release should be examined in
civil proceedings. On 17 October 2006 the Ivanovo Regional Court
quashed that decision as unlawful. On 7 November 2006 the Leninskiy
District Court refused to entertain the application for the same
reasons as before. On 5 December 2006 the Ivanovo Regional Court
upheld the decision on appeal.
The applicants again challenged the refusal to release
them in civil proceedings. By separate decisions of 22 January 2007
the Oktyabrskiy District Court refused to hear the applications
because they could not be examined in civil proceedings. It held that
the applications had to be examined in criminal proceedings. On 12
and 19 March 2007 the Ivanovo Regional Court upheld the decisions on
appeal.
In
January 2007 the applicants unsuccessfully petitioned prosecutors at
different levels for their release.
By separate decisions of 2 and 5 March 2007 the
Sovetskiy, Leninskiy, Frunzenskiy and Oktyabrskiy District Courts
ordered, of their own motion, the applicants' release. They found
that Article 109 of the Code of Criminal Procedure was applicable to
detention pending extradition and established a maximum period for
detention at eighteen months. As the applicants had been detained for
more than twenty months, they had to be released immediately.
On
5 March 2007 the applicants were released.
On
27 March 2007 the Ivanovo Regional Court upheld the decisions of 2
and 5 March 2007 on appeal.
G. Applications for refugee status
On
5 August 2005 the applicants applied to the Russian Federal Migration
Service (“the FMS”) for refugee status. In particular,
they submitted that they had left Uzbekistan for fear of persecution
in connection with their business activities. They claimed that some
of the applicants or their relatives had a history of unlawful
prosecution. They denied membership of Akramia or any involvement in
the events in Andijan. They maintained that the accusations against
them were groundless and that their prosecution was arbitrary and
politically motivated.
On
25 January 2006 the United Nations High Commissioner for Refugees
(“the UNHCR”) intervened in support of their
applications. The Commissioner submitted that Akramia was a peaceful
non-violent group of followers of the teachings of Akram Yuldashev.
In his writings, Akram Yuldashev called on Muslim businessmen to
cooperate and help the poor. There was no evidence of the group's
involvement in any extremist activities. It was believed that
successful Muslim businessmen were persecuted in Uzbekistan because
of their popularity and influence over the local population. It
further continued:
“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].”
The
UNHCR further argued that the risk of persecutions had increased
after the Andijan events.
On
10 February 2006 Human Rights Watch also supported the applicants'
request for refugee status. They submitted as follows:
“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.”
On
16 March 2006 a deputy head of the Ivanovo Regional Department of the
FMS rejected the applications by reference to sections 1 § 1 (1)
and 2 § 1 (1 and 2) of the Refugees Act (see paragraphs 92 and 93
below). He found that the applicants had not been persecuted for
their political or religious beliefs, or their social status. They
had been prosecuted for the commission of serious criminal offences
which were punishable under Russian criminal law. In particular, they
had been charged with supporting Hizb-ut-Tahrir and the Islamic
Movement of Turkestan, which had been recognised by the Russian
Supreme Court as terrorist organisations and whose activities were
banned in Russia. He further noted that the Uzbek authorities had
undertaken not to impose the death penalty on the applicants and to
ensure that they would not be subjected to torture or ill-treatment
and would be provided with defence counsel.
The
applicants challenged the refusals before the Oktyabrskiy District
Court of Ivanovo. They maintained that the real motives behind their
prosecution were political and that they were in fact being
persecuted for their successful business activities. They also
submitted that there was a great risk that they would be tortured and
unfairly tried in Uzbekistan.
On
8, 9, 13, 15, and 16 June 2006 the Oktyabrskiy District Court
confirmed the decisions of 16 March 2006. It found that the
applicants had come to Russia to find employment. They had not proved
that they had left Uzbekistan for fear of being persecuted on account
of their religious or political beliefs, or social status. In the
decisions concerning certain applicants it also added:
“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.”
The
court concluded that the applicants did not meet the requirements of
section 1 § 1 (1) of the Refugees Act and were, therefore, not
eligible for refugee status. However, it struck down the reference in
the decisions of 16 March 2006 to section 2 § 1 (1 and 2) of the
Refugees Act because the Uzbek authorities had not proved beyond
reasonable doubt that the applicants had committed a crime against
peace, a war crime, a crime against humanity or a serious
non-political crime.
On
5 July 2006 the UNHCR granted the applicants mandate refugee status.
On
12, 17, 19, 24 and 26 July 2006 the Ivanovo Regional Court upheld the
decisions of the Oktyabrskiy District Court on appeal.
On
14 August 2006 the applicants applied to the Ivanovo Regional FMS for
temporary asylum on humanitarian grounds. They claimed that there was
a risk of ill-treatment and unfair trial in Uzbekistan.
On
14 November 2006 the acting head of the Ivanovo Regional Department
of the FMS rejected their applications. He found that there were no
humanitarian grounds warranting temporary asylum. The applicants were
in good health, there was no military conflict in Uzbekistan and the
situation with regard to human rights had been improving. In
particular, according to the FMS report on the situation in
Uzbekistan more than 300 human-rights laws had been adopted. The
Supreme Court had issued a circular warning against convictions based
on confessions extorted under duress or in incommunicado detention.
The death penalty had been abolished as from 1 January 2008.
The
applicants challenged the refusals before the Oktyabrskiy District
Court of Ivanovo, repeating their fears of ill-treatment and an
unfair trial in Uzbekistan. They submitted reports by the UN General
Assembly, the UN Special Rapporteur on Torture and Human Rights Watch
in support of their allegations.
By separate decisions of 30 November, 1, 4 and 11
December 2006 the Oktyabrskiy District Court annulled the decisions
of 14 November 2006. It found that the reports submitted by the
applicants contained well-documented evidence of widespread torture
in Uzbekistan. The acting head of the Ivanovo Regional Department of
the FMS had disregarded those reports. He had also disregarded the
fact that the applicants had been granted mandate refugee status by
the UNHCR. The conclusion that the applicants did not run any risk of
ill-treatment if returned to Uzbekistan had been hypothetical and had
not been supported by evidence. The FMS report on the situation in
Uzbekistan could not be admitted in evidence because it was generic
and did not contain any reference to its sources of information. The
Court remitted the applicants' request for temporary asylum for a
fresh examination by the Ivanovo Regional Department of the FMS.
The
Ivanovo Regional Department of the FMS appealed. On 29 February
2007 the Ivanovo Regional Court upheld the decisions of the
Oktyabrskiy District Court in respect of Mr Makhmudov, Mr Ulughodjaev
and Mr Hamzaev. On 30 January 2007 the Ivanovo Regional Department of
the FMS withdrew their appeals in respect of the remainder of the
applicants.
It
appears that no decision on the applicants' request for temporary
asylum has been taken to date.
H. Decisions to extradite the applicants and subsequent
appeal proceedings
On 27, 31 July, and 1 August 2006 the First Deputy
Prosecutor General of the Russian Federation decided to extradite the
applicants to Uzbekistan. The decisions in respect of certain
applicants read as follows:
“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.”
The decisions in respect of the other applicants read
as follows:
“[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.”
Extradition
orders were granted in respect of aggravated murder, terrorism, the
establishment and membership of an illegal organisation, the illegal
possession of arms, and participation in mass disorders. However, the
prosecutor refused to extradite the applicants for the attempted
overthrow of the constitutional order of Uzbekistan and dissemination
of materials liable to undermine public security and public order in
conspiracy with others and with financial backing from religious
organisations, because these were not offences under Russian criminal
law.
Counsel
for the applicants challenged the decisions before a court. In
particular, she submitted that on 13 May 2005 the applicants were in
Russia and denied any involvement in the events in Andijan. The
accusations against them were unfounded and they were in fact being
persecuted by the Uzbek authorities on account of their political and
religious beliefs and their successful businesses. The applicants
were charged with capital offences and there was a risk of their
being sentenced to death following an unfair trial. They also faced
torture and other forms of ill-treatment because torture was
widespread in Uzbekistan and confessions were often extracted from
defendants under duress. She also argued that the documents that had
been submitted by the Uzbek prosecution office to support their
extradition requests were flawed. Finally, she submitted that the
wording of the extradition decisions violated the applicants' right
to be presumed innocent.
On 29 and 30 August, 1, 4, 5, 12, 13, 14, 15 and 21
September 2006 the Ivanovo Regional Court upheld the extradition
decisions. It held that the applicants were charged with offences
punishable under Uzbek and Russian criminal law, that the Uzbek
authorities had given assurances that the applicants would not be
tortured or sentenced to death, and that the Uzbek and Russian
authorities had followed the extradition procedure set out in the
applicable international and domestic law. The court rejected the
suggestion that the applicants would be subjected to inhuman
treatment and that their rights would be violated in Uzbekistan. It
further held that the issue of the applicants' guilt or innocence was
not within the scope of the review by the extraditing authorities.
The extradition decision only described the charges against the
applicants, and did not contain any findings as to their guilt.
Therefore, the presumption of innocence had not been violated.
The
applicants appealed. On 28 November 2006 the Supreme Court of the
Russian Federation upheld the decisions on appeal, finding that they
were lawful and justified.
I. Reports on Uzbekistan by the UN Institutions and
NGOs
In his report submitted in accordance with the United
Nations Commission on Human Rights resolution 2002/38
(E/CN.4/2003/68/Add.2) the Special Rapporteur on the question of
torture, Theo van Boven, described the situation in Uzbekistan as
follows:
“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.”
The United Nations High Commissioner for Human Rights
also stated in his report of 1 February 2006 entitled “Report
of the United Nations High Commissioner for Human Rights and
follow-up to the World conference on human rights. Report of the
mission to Kyrgyzstan by the Office of the United Nations High
Commissioner for Human Rights (OHCHR) concerning the events in
Andijan, Uzbekistan, 13-14 May 2005” (E/CN.4/2006/119):
“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.”
In its report of 20 September 2005, “Uzbekistan:
lifting the siege on the truth about Andijan”, Amnesty
International remarked:
“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.”
In conclusion, Amnesty International stated:
“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
In his report of 18 October 2006 “Situation of
human rights in Uzbekistan” (A/61/526) the UN Secretary General
expressed his concern about the fate of individuals extradited to
Uzbekistan after the Andijan events:
“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.”
In the report of 11 May 2006, entitled “Uzbekistan:
Andijan – impunity must not prevail”, Amnesty
International claimed:
“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
The Constitution guarantees the right to liberty
(Article 22):
“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
Article 16 of the European Convention on Extradition
of 13 December 1957 (CETS no. 024), to which Russia is a party,
provides as follows:
“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
The
CIS Convention on legal aid and legal relations in civil, family and
criminal cases (the 1993 Minsk Convention), to which both Russia and
Uzbekistan are parties, provides that a request for extradition must
be accompanied by a detention order (Article 58 § 2).
A
person whose extradition is sought may be arrested before receipt of
a request for his or her extradition. In such cases a special request
for arrest containing a reference to the detention order and
indicating that a request for extradition will follow must be sent. A
person may also be arrested in the absence of such request if there
are reasons to suspect that he has committed, in the territory of the
other Contracting Party, an offence entailing extradition. The other
Contracting Party must be immediately informed of the arrest (Article
61).
A
person arrested pursuant to Article 61 must be released if no request
for extradition is received within forty days of the arrest
(Article 62 § 1).
4. The Code of Criminal Procedure
Chapter 13 of the Russian Code of Criminal Procedure
(“Measures of restraint”) governs the use of measures of
restraint, or preventive measures (меры
пресечения),
which include, in particular, placement in custody. Custody may be
ordered by a court on an application by an investigator or a
prosecutor if a person is charged with an offence carrying a sentence
of at least two years' imprisonment, provided that a less restrictive
measure of restraint cannot be used (Article 108 §§ 1 and
3). The period of detention pending investigation may not exceed two
months (Article 109 § 1). A judge may extend that period up to
six months (Article 109 § 2). Further extensions of up to twelve
months, or in exceptional circumstances, up to eighteen months, may
only be granted if the person is charged with serious or particularly
serious criminal offences (Article 109 § 3). No extension
beyond eighteen months is permissible and the detainee must be
released immediately (Article 109 § 4).
Chapter 16 (“Complaints about acts and decisions
by courts and officials involved in criminal proceedings”)
provides for the judicial review of decisions and acts or failures to
act by an investigator or a prosecutor that are capable of adversely
affecting the constitutional rights or freedoms of the parties to
criminal proceedings (Article 125 § 1). The competent court is
the court with jurisdiction for the place where the preliminary
investigation is conducted (ibid.).
Chapter 54 (“Extradition of a person for
criminal prosecution or execution of sentence”) regulates
extradition procedures. Upon receipt of a request for extradition not
accompanied by an arrest warrant issued by a foreign court, a
prosecutor must decide on the measure of restraint in respect of the
person whose extradition is sought. The measure must be applied in
accordance with the established procedure (Article 466 § 1). A
person who has been granted asylum in Russia because of possible
political persecution in the State seeking his extradition may not be
extradited to that State (Article 464 § 1 (2)).
An extradition decision made by the Prosecutor General
may be challenged before a court. Issues of guilt or innocence are
not within the scope of judicial review, which is limited to an
assessment of whether the extradition order was made in accordance
with the procedure set out in the relevant international and domestic
law (Article 463 §§ 1 and 6).
5. Code of Civil Procedure
A person may apply for judicial review of decisions
and acts or failures to act by a State body or a State official that
are capable of violating his/her rights or freedoms, hindering the
realisation of his or her rights and freedoms, or imposing an
obligation or liability unlawfully (Articles 254 § 1 and 255).
If the court finds the application well-founded, it must order the
State body or State official concerned to remedy the violation or
remove the obstacle to the realisation of the rights and freedoms in
question (Article 258 § 1).
6. Case-law of the Constitutional Court
On
4 April 2006 the Constitutional Court examined an application by
Mr Nasrulloyev, who had submitted that the lack of any
limitation in time on the detention of a person pending extradition
was incompatible with the constitutional guarantee against arbitrary
detention. The Constitutional Court declared the application
inadmissible. It reiterated its settled case-law that excessive or
arbitrary detention, unlimited in time and without appropriate
review, was incompatible with Article 22 of the Constitution and
Article 14 § 3 of the International Covenant on Civil and
Political Rights in all cases, including extradition proceedings.
However, in the Constitutional Court's view, the absence of any
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 the 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 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
Article
33 of the UN Convention on the Status of Refugees of 1951, which was
ratified by Russia on 2 February 1993, provides as follows:
“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
The Refugees Act (Law no. 4258-I of 19 February 1993)
incorporated the definition of the term “refugee”
contained in Article 1 of the 1951 Geneva Convention, as amended by
the 1967 Protocol relating to the Status of Refugees. The Act defines
a refugee as a person who is not a Russian national and who, owing to
a well-founded fear of being persecuted for reasons of race,
religion, nationality, ethnic origin, membership of a particular
social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, unwilling to avail
himself of the protection of that country, or who, not having a
nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such
fear, unwilling to return to it (section 1 § 1 (1)).
The Act does not apply to anyone believed on
reasonable grounds to have committed a crime against peace, a war
crime, a crime against humanity, or a serious non-political crime
outside the country of refuge prior to his admission to that country
as a person seeking refugee status (section 2 § 1 (1, 2)).
A person who has applied for refugee status or who has
been granted refugee status cannot be returned to a State where his
life or freedom would be imperilled on account of his race, religion,
nationality, membership of a particular social group or political
opinion (section 10 § 1).
If
a person satisfies the criteria established in section 1 § 1
(1), or if he does not satisfy such criteria but cannot be expelled
or deported from Russia for humanitarian reasons, he may be granted
temporary asylum (section 12 § 2). A person who has been granted
temporary asylum cannot be returned against his will to the country
of his nationality or to the country of his former habitual residence
(section 12 § 4).
C. Relevant United Nations' and Council of Europe's
documents concerning the use of diplomatic assurances
The UN General Assembly resolution of 16 November 2005
“Torture and other cruel, inhuman or degrading treatment or
punishment” (UN Doc.:A/C.3/60/L.25/Rev.1) reads as follows:
“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...”
In
his interim report submitted in accordance with Assembly resolution
59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of
the Commission on Human Rights on torture and other cruel, inhuman or
degrading treatment or punishment, Manfred Nowak, reached the
following conclusions:
“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.”
Specifically referring to the situation of torture in
Uzbekistan and returns to torture effected in reliance upon
diplomatic assurances from the Uzbek authorities, the UN Special
Rapporteur on Torture Manfred Nowak has stated to the Session of the
UN Human Rights Council on 20 September 2006:
“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.”
The
UN High Commissioner for Refugees' Note on Diplomatic Assurances and
International Refugee Protection published on 10 August 2006 reads as
follows:
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.'”
The European Committee for the Prevention of
Torture's (the CPT) 15th General Report of 22 September 2005 on their
activities covering the period from 1 August 2004 to 31 July 2005
expressed concern about reliance on diplomatic assurances in light of
the absolute prohibition against torture:
“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.”
THE LAW
I. ADMISSIBILITY OF THE APPLICATION
The
Government submitted that the applicants had been charged with
serious and especially serious crimes, including terrorism and
aggravated murder, committed in Uzbekistan. They had intended to
avoid prosecution for those offenses by lodging their application
with the Court. They had claimed that before their departure from
Uzbekistan they had been persecuted and ill-treated by the Uzbek
authorities, without submitting any evidence in support of their
allegations. The Government invited the Court to declare the
application inadmissible as an abuse of the right of application.
The
Court will examine the Government's request to declare the
application inadmissible from the standpoint of Article 35, which
provides, in the relevant parts, as follows:
“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.”
The
Court reiterates that a finding of abuse might be made in such
circumstances if it appears that an application was clearly
unsupported by evidence or outside the scope of the Convention, or if
the application is based on untrue facts in a deliberate attempt to
mislead the Court (see G. J. v. Luxembourg, no. 1156/93,
Commission decision of 22 October 1996). The Court is unable to find
any indication of abuse in the present application. The applicants
complained that their extradition to Uzbekistan would expose them to
a risk of ill-treatment, that their detention pending extradition was
unlawful and that the presumption of innocence had been violated by
the wording of the extradition orders. They supported their
allegations by considerable documentary evidence. The Government did
not contest the veracity of their factual submissions, nor did they
claim that any of their allegations had been based on untrue facts.
Accordingly, the Court does not consider the
application to be an abuse of the right of petition. It dismisses the
Government's request to declare the application inadmissible on that
ground. It further notes that the application is not inadmissible on
any other grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained under Article 3 of the Convention that their
extradition to Uzbekistan would expose them to a threat of torture or
capital punishment. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
The
applicants maintained that they had argued before the Russian
authorities that there existed a real risk of their ill-treatment and
political persecution in Uzbekistan. They had submitted reports on
Uzbekistan by the UN institutions and international NGOs, confirming
that torture was widespread in detention facilities and that
individuals charged in connection with the Andijan events were at an
increased risk of ill-treatment. That information had not received
proper assessment from the Russian authorities. They had rejected the
applicants' arguments without giving any reasons except a reference
to the assurances given by the Uzbek authorities. The applicants
submitted that the Uzbek authorities had given the same assurances in
the extradition proceedings of four Uzbek nationals from Kyrgyzstan
and that those assurances had proved to be ineffective (see paragraph
78 above). As the Uzbek authorities refused to give representatives
of the international community access to the extradited individuals,
it was not possible to monitor their compliance with the assurances.
Given the administrative practice of ill-treatment in Uzbekistan, the
assurances by the Uzbek authorities were not reliable.
The
applicants further asked the Court not to limit its examination to
the establishment of the Government's failure to assess properly the
risk of ill-treatment before taking the extradition decision. They
argued that they had submitted sufficient information for the Court
to rule that their extradition to Uzbekistan would be incompatible
with Article 3 of the Convention. As additional proof of an increased
risk of ill-treatment, they had produced a list of their relatives
and business partners who had been convicted to long terms of
imprisonment in connection with the Andijan events. They also
maintained that the Uzbek authorities knew about their application
for asylum and their application before the Court, which had further
intensified the risk of torture.
Referring
to the case of Mamatkulov and Askarov v. Turkey ([GC],
nos. 46827/99 and 46951/99, ECHR 2005 I), the
Government argued that they had the right to control the entry,
residence and expulsion of aliens. The applicants had been charged
with serious and particularly serious criminal offences, including
terrorism, in Uzbekistan. The Uzbek authorities had made a request
for their extradition. Under the Minsk Convention, to which both
Russia and Uzbekistan were parties, the Government had an obligation
to abide by that request. They further referred to the judgments of
the International Court of Justice in the Lockerbie cases (Questions
of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America and Libyan Arab Jamahiriya v.
United Kingdom), Preliminary Objections, Judgment, I. C. J.
Reports 1998, pp. 9 and 115)), confirming the right of States to
prosecute those involved in terrorist activities, and to the UN
Security Council's resolution 1373 (2001), adopted on 28 September
2001. The resolution had called upon all States to take appropriate
measures before granting refugee status, for the purpose of ensuring
that the asylum seeker had not planned, facilitated or participated
in the commission of terrorist acts; and to ensure that refugee
status was not abused by the perpetrators, organisers or facilitators
of terrorist acts.
The Government further maintained that the applicants
had not submitted any documentary evidence in support of their
allegations that they had been politically persecuted before their
departure from Uzbekistan or that they would be ill-treated if
extradited there. The reports by the UN institutions and
international NGOs produced by the applicants described the general
situation in Uzbekistan, without any reference to the applicants'
particular situation. The mere fact that the applicants' relatives
and business partners had been convicted did not prove that the
convictions had been unfair or that their rights had been violated.
Nor did it prove that the applicants would suffer any violation of
their rights, if extradited. The Uzbek authorities had given
assurances that they had no intention of persecuting the applicants
out of political motives, or on account of their race, ethnic origin,
religious or political beliefs. The Government had also obtained
assurances that the applicants would not be ill-treated or subjected
to the death penalty in Uzbekistan. They considered that those
assurances were reliable, given the recent improvement in the
situation with regard to human rights in Uzbekistan. In particular,
the death penalty had been abolished as from 1 January 2008; the
Uzbekistan Supreme Court had instructed the lower courts not to rely
on confessions obtained under duress; and a monitoring group had been
set up to monitor, in cooperation with the Ombudsman, the situation
with human rights in detention facilities.
The
Government submitted, finally, that although the applicants had been
granted mandate refugee status by the UNHCR, that decision was not
binding on the Russian authorities. The Russian authorities had
thoroughly examined the applications for refugee status and
established that there was no risk of the applicants' political
persecution in Uzbekistan. They did not meet the requirements of
section 1 § 1 (1) of the Refugees Act and were, therefore, not
eligible for refugee status.
The third party, Human Rights Watch and the AIRE
Centre, submitted that there was a growing consensus among
governments and international experts that diplomatic assurances were
an inadequate safeguard against torture and other ill-treatment. They
referred to reports by the UN Special Rapporteur on Torture, the UN
High Commissioner for Human Rights, the UN High Commissioner for
Refugees, the UN Human Rights Committee and the European Committee
for the Prevention of Torture (see paragraphs 96 to 100 above), who
unanimously stated that diplomatic assurances were unreliable and
ineffective. All the governments offering diplomatic assurances had
long histories and continuing records of employing torture.
Governments with poor records on torture routinely denied that
torture was used and failed to initiate investigations when
allegations of torture were made. It was highly unlikely that those
governments, which persistently breached the international ban on
torture, would keep their promises not to torture a single
individual. Given that the receiving states were already under a duty
not to torture or ill-treat detainees, and most had ratified legally
binding treaties promising to refrain from such abuse, the diplomatic
assurances, which were not legally binding, did not provide any
additional protection to the deportees. Moreover, there was no
mechanism inherent in the assurances themselves that would enable the
person subject to the assurances to enforce them or to hold the
sending or receiving government accountable. The person subject to
extradition based on assurances had no legal recourse if the
assurances were breached.
The
third party also referred to the decision of the UN Human Rights
Committee in the Alzery v. Sweden case (CCPR/C/88/D/1416/2005,
10 November 2006). The Committee had found that the transfer of
the applicant to Egypt had breached the absolute ban on torture,
despite the assurances of humane treatment provided by the Egyptian
authorities prior to the rendition. The UN Committee against Torture
had also found that the procurement of diplomatic assurances, which
provided no mechanism for their enforcement, did not suffice to
protect against a manifest risk of ill-treatment (UN Committee
against Torture, Decision: Agiza v. Sweden,
CAT/C/34//D/233/2003, 20 May 2005). In both cases, the applicants had
been ill-treated after their extradition to Egypt, despite the
assurances of humane treatment provided by the Egyptian authorities.
The
third party further submitted that there was ample evidence to show
that diplomatic assurances could not protect people at risk of
torture from such treatment on return, whether by extradition or
otherwise. Human Rights Watch and other NGOs had documented several
cases of individuals extradited on the basis of diplomatic assurances
who were subsequently tortured by the officials of the receiving
state. In particular, a Russian man transferred from the US to Russia
had been unlawfully detained, severely beaten and denied necessary
medical care, despite assurances from the Russian authorities that he
would be treated humanely in accordance with Russia's domestic law
and international obligations. The European Court of Human Rights, in
the case of Shamayev and Others v. Georgia and Russia,
(no. 36378/02, ECHR 2005 III), had experienced directly
that diplomatic assurances were ineffective. In that case Georgia had
extradited five applicants to Russia, despite an indication by the
Court of interim measures requiring that none of them be extradited.
The Russian Government had offered diplomatic assurances, including
guarantees of humane treatment and unhindered access of the
applicants to appropriate medical treatment, to legal advice and to
the European Court of Human Rights. However, when the Court
subsequently declared the application admissible and decided to send
a fact-finding mission to visit the applicants, the Russian
authorities had refused access to them. The applicants' lawyers had
also been unable to obtain permission to visit them. That case had
proved the total failure of diplomatic assurances to provide those
who received them with any real power to react meaningfully where
those who had proffered such assurances chose to ignore them.
With respect to Uzbekistan, the third party argued
that it was notorious for practicing systematic torture. Torture was
condoned, if not encouraged, by senior authorities and occurred with
impunity. Individuals deported or extradited to Uzbekistan had been
routinely detained incommunicado and ill-treated. In particular, nine
Uzbek nationals extradited from Kazakhstan in November 2005 had
been ill-treated by the Uzbek authorities. In June and August 2005
nine Uzbek nationals had been extradited from Kyrgyzstan to
Uzbekistan, ten more Uzbek nationals had been extradited from Ukraine
in February 2006. The men had been held in incommunicado detention
ever since and their whereabouts had remained unknown. No independent
actor or organisation had been granted access to them. In recognition
of the numerous credible sources on the routine use of torture in
Uzbekistan, governments in North America, Europe, and Central Asia
had acknowledged that extradition to Uzbekistan of persons who were
wanted by the Uzbek authorities – either because of their
alleged association with the May 2005 events in Andijan or because
they were perceived to be independent Muslims – would violate
their international obligations. Several European governments,
including the Czech Republic, Germany, Norway, Romania and Sweden,
had granted full refugee status or UNHCR-mandated resettlement to
Uzbek nationals fleeing persecution by the Uzbek authorities pursuant
to the Andijan events or as a result of their religious or political
affiliations.
B. The Court's assessment
1. General principles
The
Court reiterates the relevant general principles emerging from its
case-law, as summarised in the Mamatkulov and Askarov case
(cited above):
“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
The
Court observes that most of the applicants are natives of the town of
Andijan in Uzbekistan. They arrived in Russia at various dates
between 2000 and the beginning of 2005. They fled persecution on
account of their religious beliefs and successful businesses. Some of
them had earlier experienced ill-treatment at the hands of the Uzbek
authorities, others had seen their relatives or business partners
arrested and charged with participation in illegal extremist
organisations. Two applicants arrived in Russia on business: one from
the town of Kokand in Uzbekistan, the other from Turkey.
After
the unrest in Andijan in May 2005 the applicants were arrested in
Russia at the request of the Uzbek authorities, who suspected them of
financing the insurgents. Although the applicants denied any
involvement in the Andijan events and the inquiry conducted by the
Russian authorities seemed to corroborate their statements (see
paragraph 32 above), the extradition proceedings commenced against
them. The applicants claimed that their extradition to Uzbekistan
would expose them to a danger of ill-treatment and capital
punishment. They also lodged applications for asylum, reiterating
their fears of torture and persecution for political motives. They
supported their submissions with reports prepared by UN institutions
and international NGOs describing the ill-treatment of detainees in
Uzbekistan. The Russian authorities rejected their applications for
refugee status and ordered their extradition to Uzbekistan.
In
line with its case-law cited above, the Court is called upon to
establish whether there exists a real risk of ill-treatment in case
of the applicants' extradition to Uzbekistan. Since they have not yet
been extradited owing to an indication by the Court of an interim
measure under Rule 39 of the Rules of Court, the material date for
the assessment of that risk is that of the Court's consideration of
the case. It follows that, although the historical position is of
interest in so far as it may shed light on the current situation and
its likely evolution, it is the present conditions which are decisive
(see Chahal v. the United Kingdom, judgment of 15 November
1996, Reports of Judgments and Decisions 1996 V, § 86).
As
regards the applicants' first argument that their extradition would
expose them to a risk of the death penalty, as they had been charged
with capital offences, the Court observes that they were charged with
terrorism and aggravated murder. At the time when the extradition
decisions were issued against the applicants those offences were
classified as capital under the Uzbek Criminal Code. The applicants
therefore ran the risk of a death sentence. However, capital
punishment was abolished in Uzbekistan as from 1 January 2008 (see
paragraph 26 above). The Court considers that the risk of the
imposition of the death penalty on the applicants was thereby
eliminated so that no issue arises under Article 3 in this respect.
The
Court will next examine the applicants' second argument that they
would suffer ill-treatment in Uzbekistan. It takes note of the
Government's account of recent improvements in the protection of
human rights in Uzbekistan (see paragraph 109 above) which, in the
Government's opinion, negated the risk of ill-treatment. It
reiterates, however, that in cases where the applicant – or a
third party within the meaning of Article 36 of the Convention –
provides reasoned grounds which cast doubt on the accuracy of the
information relied on by the respondent Government, the Court must be
satisfied that the assessment made by the authorities of the
Contracting State is adequate and sufficiently supported by domestic
materials as well as by materials originating from other reliable and
objective sources such as, for instance, other Contracting or
non-Contracting States, agencies of the United Nations and reputable
non-governmental organisations. In its supervisory task under Article
19 of the Convention, it would be too narrow an approach under
Article 3 in cases concerning aliens facing expulsion or extradition
if the Court, as an international human rights court, were only to
take into account materials made available by the domestic
authorities of the Contracting State concerned, without comparing
these with materials from other reliable and objective sources (see
Salah Sheekh v. the Netherlands, no. 1948/04, § 136,
ECHR 2007 ... (extracts); and Saadi v. Italy [GC], no.
37201/06, § 131, 28 February 2008).
The evidence from a number of objective sources
demonstrates that problems still persist in Uzbekistan in connection
with the ill-treatment of detainees. In particular, in 2002 the UN
Special Rapporteur on Torture described the practice of torture upon
those in police custody as “systematic” and
“indiscriminate”. His successor in this post announced in
2006 that his mandate continued to receive serious allegations of
torture by Uzbek law enforcement officials (see paragraphs 74 and 98
above). At the end of 2006 the UN Secretary General also drew
attention to the continuing problems of the widespread mistreatment
of prisoners and complained that inadequate measures were taken to
bring those responsible to justice (see paragraph 78 above).
Moreover, no concrete evidence has been produced of any fundamental
improvement in the protection against torture in Uzbekistan in recent
years. Although the Uzbek government adopted certain measures
designed to combat the practice of torture (see the Government's
submissions in paragraph 109 above), there is no evidence that those
measures returned any positive results. The Court is therefore
persuaded that ill-treatment of detainees is a pervasive and enduring
problem in Uzbekistan.
These
findings describe the general situation in Uzbekistan. As to the
applicants' personal situations, the Court observes that they were
charged in connection with the Andijan events. Amnesty International
considered such individuals to be at an increased risk of
ill-treatment (see paragraphs 76 and 77 above). The UN High
Commissioner for Human Rights and the UN Special Rapporteur on
Torture both urged the governments to refrain from transferring
persons accused of involvement in the Andijan unrest to Uzbekistan
where they would face the risk of torture (see paragraphs 75 and 98
above).
The
third party alleged, and the allegation was corroborated by the UN
Secretary General's and Amnesty International's reports, that most of
the men forcibly returned to Uzbekistan after the events in May 2005
in Andijan were held in incommunicado detention (see paragraphs 78, 79
and 114 above). Given that arrest warrants were issued in respect of
the applicants, it is most likely that they will be directly placed
in custody after their extradition and that no relative or
independent observer will be granted access to them, thus
intensifying the risk of ill-treatment.
The
Court also notes that after their arrest in Russia the applicants
received threats from Uzbek officials that they would be tortured
after their extradition to Uzbekistan to extract confessions (see
paragraph 27 above).
Finally,
the Court finds it significant that the office of the UN High
Commissioner for Refugees granted the applicants mandate refugee
status after determining they each had a well founded fear of being
persecuted and ill-treated, if extradited to Uzbekistan. A Russian
court also found that, given well-documented evidence of widespread
torture in Uzbekistan, the applicants' extradition would expose them
to the risk of torture (see paragraph 65 above). Against this
background the Court is persuaded that the applicants would be at a
real risk of suffering ill-treatment if returned to Uzbekistan.
The
Court is not convinced by the Government' argument that they had an
obligation under international law to cooperate in fighting terrorism
and had a duty to extradite the applicants who were accused of
terrorist activities, irrespective of a threat of ill-treatment in
the receiving country. It is not necessary for the Court to enter
into a consideration of the Government's untested allegations about
the applicants' terrorist activities because they are not relevant
for its analysis under Article 3. The Court is well aware of the
immense difficulties faced by States in modern times in protecting
their communities from terrorist violence. However, even in these
circumstances, the Convention prohibits in absolute terms torture or
inhuman or degrading treatment or punishment, irrespective of the
victim's conduct. The prohibition provided by Article 3 against
ill-treatment is equally absolute in expulsion and extradition cases.
Thus, whenever substantial grounds have been shown for believing that
an individual would face a real risk of being subjected to treatment
contrary to Article 3 if removed to another State, the responsibility
of the Contracting State to safeguard him or her against such
treatment is engaged in the event of expulsion or extradition. In
these circumstances, the activities of the individual in question,
however undesirable or dangerous, cannot be a material consideration
(see, mutatis mutandis, Chahal, cited above, §§ 79
to 81; and Saadi, cited above, §§ 138 to 141).
Finally,
the Court will examine the Government's argument that the assurances
of humane treatment from the Uzbek authorities provided the
applicants with an adequate guarantee of safety. In its judgment in
the Chahal case the Court cautioned against reliance on
diplomatic assurances against torture from a State where torture is
endemic or persistent (see Chahal, cited above, § 105).
In the recent case of Saadi v. Italy the Court also
found that diplomatic assurances were not in themselves sufficient to
ensure adequate protection against the risk of ill-treatment where
reliable sources had reported practices resorted to or tolerated by
the authorities which were manifestly contrary to the principles of
the Convention (see Saadi, cited above, §§ 147 and
148). Given that the practice of torture in Uzbekistan is described
by reputable international experts as systematic (see paragraph 121
above), the Court is not persuaded that the assurances from the Uzbek
authorities offered a reliable guarantee against the risk of
ill-treatment.
Accordingly, the applicants' forcible return to
Uzbekistan would give rise to a violation of Article 3 as they would
face a serious risk of being subjected to torture or inhuman or
degrading treatment there.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Compliance with Article 5 § 1
The
applicants complained under Article 5 § 1 (f) of the Convention
that they were unlawfully held in custody. In particular, they
alleged that the domestic provisions setting the maximum period of
detention were not respected. The relevant parts of Article 5 §
1 read 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:
...
(f) the lawful arrest or detention of ... a
person against whom action is being taken with a view to ...
extradition.”
1. The parties' submissions
The
applicants submitted that Article 109 of the Code of Criminal
Procedure set the initial time-limit for detention at two months. As
no extension of the applicants' detention had been ordered after the
expiry of the two-month time-limit, the applicants' subsequent
detention had been unlawful. The applicants referred in that respect
to the Government's submissions in which it had been confirmed that
the detention pending extradition was to be extended following the
procedure established by Russian law for the extension of detention
during the investigation and that that procedure had not been
respected in the applicants' case (see paragraph 133 below).
The
applicants further noted that the Russian courts had denied the
applicability of Article 109 of the Code of Criminal Procedure to
detention pending extradition and had ruled that Russian law did not
establish any time-limits for such detention or any procedure for its
extension. The applicants argued that the absence of such a procedure
had rendered their detention arbitrary and unlawful.
The
applicants finally claimed that their detention had been
unnecessarily prolonged because the Russian authorities had
procrastinated in the examination of their applications for refugee
status.
The Government maintained that the applicants had
been detained pending extradition to Uzbekistan pursuant to a court
order issued in accordance with Article 466 of the Code of Criminal
Procedure. Their detention had therefore been lawful. The Government
further noted that on 4 April 2006 the Constitutional Court had
issued a decision in which it declared that the general provisions of
Chapter 13 of the Code of Criminal Procedure were to apply to all
forms and stages of criminal proceedings, including proceedings for
extradition (see paragraph 85 above). The Supreme Court had noted in
that respect that not only initial placement in custody, but also
extensions of detention were to be ordered by a court on application
by a prosecutor. However, no application for extension of detention
had been made by the prosecutor in the applicants' case.
The Government insisted that Article 109 of the Code
of Criminal Procedure, which established time-limits for detention
during a criminal investigation, was not applicable to persons held
in custody with a view to extradition. There was no other legal
provision that established time-limits for detention pending
extradition. In the applicants' case, the custodial measure had been
applied for the period which had been necessary for a decision on
extradition to be taken. The applicants themselves had contributed to
the prolongation of their detention by filing applications for
refugee status and subsequently contesting the refusals before the
Russian courts. During that entire period the applicants had enjoyed
refugee status and their extradition had been prohibited by Russian
law.
2. The Court's assessment
It
is common ground between the parties that the applicants were
detained with a view to their extradition from Russia to Uzbekistan.
Article 5 § 1 (f) of the Convention is thus applicable
in the instant case. This provision does not require that the
detention of a person against whom action is being taken with a view
to extradition be reasonably considered necessary, for example to
prevent his committing an offence or absconding. In this connection,
Article 5 § 1 (f) provides a different level of protection from
Article 5 § 1 (c): all that is required under sub-paragraph (f)
is that “action is being taken with a view to deportation or
extradition”. It is therefore immaterial, for the purposes of
Article 5 § 1 (f), whether the underlying decision to expel can
be justified under national or Convention law (see Čonka v. Belgium,
no. 51564/99, § 38, ECHR 2002-I, and Chahal v. the
United Kingdom, judgment of 15 November 1996, Reports of
Judgments and Decisions 1996-V, § 112).
The
Court reiterates, however, that it falls to it to examine whether the
applicants' detention was “lawful” for the purposes of
Article 5 § 1 (f), with particular reference to the safeguards
provided by the national system. Where the “lawfulness”
of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention
refers essentially to national law and lays down the obligation to
conform to the substantive and procedural rules of national law, but
it requires in addition that any deprivation of liberty should be in
keeping with the purpose of Article 5, which is to protect the
individual from arbitrariness (see Amuur v. France,
judgment of 25 June 1996, Reports 1996-III, § 50).
The
Court must therefore ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied.
In laying down that any deprivation of liberty must be effected “in
accordance with a procedure prescribed by law”, Article 5 §
1 does not merely refer back to domestic law; like the expressions
“in accordance with the law” and “prescribed by
law” in the second paragraphs of Articles 8 to 11, it also
relates to the “quality of the law”, requiring it to be
compatible with the rule of law, a concept inherent in all the
Articles of the Convention. “Quality of law” in this
sense implies that where a national law authorises deprivation of
liberty it must be sufficiently accessible, precise and foreseeable
in its application, in order to avoid all risk of arbitrariness (see
Khudoyorov v. Russia, no. 6847/02, § 125,
ECHR 2005-... (extracts); Ječius v. Lithuania,
no. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III; and Amuur,
cited above).
The
Court has already found that the provisions of the Russian law
governing detention of persons with a view to extradition were
neither precise nor foreseeable in their application and fell short
of the “quality of law” standard required under the
Convention. It noted with concern the inconsistent and mutually
exclusive positions of the domestic authorities on the issue of
provisions applicable to detainees awaiting extradition, in
particular on the issue whether Article 109 of the Code of Criminal
Procedure (see paragraph 85 above), which instituted a procedure and
specific time-limits for reviewing detention, was applicable to
detention with a view to extradition (see Nasrulloyev v. Russia,
no. 656/06, § §§ 72 and seq.,
11 October 2007).
The
inconsistency of domestic law is likewise apparent in the instant
case. Thus, the Supreme Court opined that the initial judicial
decision on the applicants' placement in custody did not furnish a
sufficient legal basis for the entire duration of their detention.
The detention should have been extended by a court on application by
a prosecutor, that is in accordance with the procedure and
time-limits established by Article 109. It conceded that the
requisite procedure had not been followed in the applicants' case
(see paragraph 133 above). When the applicants asked for release,
arguing that the authorised period of their detention had expired and
no extension had been ordered in accordance with the procedure
prescribed by Article 109, the domestic courts held that Article 109
found no application in their situation and that domestic law did not
set any time-limits for detention with a view to extradition or any
procedure for its extension (see paragraphs 44 and 45 above).
However, on 2 and 5 March 2007 the same courts ordered the
applicants' release with reference to Article 109 on the ground that
the maximum detention period had already expired (see paragraph 49
above).
In the present case, the Court comes to the same
conclusion as in the Nasrulloyev case (loc. cit.) that
the provisions of the Russian law governing detention pending
extradition were neither precise nor foreseeable in their application
and did not meet the “quality-of-law” requirement. It
finds that in the absence of clear legal provisions establishing the
procedure for ordering and extending detention with a view to
extradition and setting up time-limits for such detention, the
deprivation of liberty to which the applicants were subjected was not
circumscribed by adequate safeguards against arbitrariness. The
national system failed to protect the applicants from arbitrary
detention, and their detention cannot be considered “lawful”
for the purposes of Article 5 of the Convention. In these
circumstances, the Court does not need to consider separately whether
the extradition proceedings were conducted with due diligence.
There
has therefore been a violation of Article 5 § 1 of the
Convention.
B. Compliance with Article 5 § 4
The
applicants complained under Articles 5 § 4 and 13 of the
Convention that they were unable to obtain effective judicial review
of their detention. Given that Article 5 § 4 is a lex
specialis in relation to the more general requirements of Article
13 (see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May
2006), the Court will examine the complaint under Article 5 §
4, which reads as follows:
“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
The
applicants argued that their attempts to obtain judicial review of
the detention had failed. The director of the remand centre had been
under an obligation to release the applicants after the expiry of the
authorised period of detention. However, he had refused to do so.
Counsel for the applicants had filed several applications for
judicial review of the refusal. The applications had been disallowed
because they could not be examined in criminal proceedings. The
applicants had been advised to file an application for release in
civil proceedings. They had followed that advice but the civil courts
had also refused to hear their applications. The applicants had
therefore been unable to obtain judicial review of their detention
either in criminal, or in civil proceedings.
The
Government submitted that the applicants had appealed against the
detention order. They had also lodged applications for release under
Article 109 of the Code of Criminal Procedure. Their applications had
been examined by courts at two levels of jurisdiction. They had
therefore been able to obtain a review of their detention
2. The Court's assessment
The Court reiterates that the purpose of Article 5 §
4 is to assure to persons who are arrested and detained the right to
judicial supervision of the lawfulness of the measure to which they
are thereby subjected (see, mutatis mutandis, De Wilde,
Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A
no. 12, § 76). A remedy must be made available during a person's
detention to allow that person to obtain speedy judicial review of
the lawfulness of the detention, capable of leading, where
appropriate, to his or her release. The existence of the remedy
required by Article 5 § 4 must be sufficiently certain, not only
in theory but also in practice, failing which it will lack the
accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis, Stoichkov v.
Bulgaria, no. 9808/02, § 66 in fine, 24
March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71,
ECHR 2004-VIII (extracts)). The accessibility of a remedy implies,
inter alia, that the circumstances voluntarily created by the
authorities must be such as to afford applicants a realistic
possibility of using the remedy (see, mutatis mutandis, Čonka,
§§ 46 and 55, cited above).
The
Court is not persuaded by the Government's argument that the
applicants had obtained judicial review of their detention by
appealing against the initial detention order. The thrust of the
applicants' complaint under Article 5 § 4 was not
directed against the initial decision on their placement in custody
but rather against their inability to obtain judicial review of their
detention after a certain lapse of time. Given that the applicants
spent more than twenty months in custody, new issues affecting the
lawfulness of the detention might have arisen during that period. In
particular, the applicants sought to argue before the courts that
their detention had ceased to be lawful after the expiry of the
time-limit established by Article 109 of the Code of Criminal
Procedure. By virtue of Article 5 § 4 they were entitled to
apply to a “court” having jurisdiction to decide
“speedily” whether or not their deprivation of liberty
had become “unlawful” in the light of new factors which
emerged subsequently to the decision on their initial placement in
custody (see, mutadis mutandis, Weeks v. the United
Kingdom, judgment of 2 March 1987, Series A no. 114,
§§ 55-59).
The
Court notes with concern the contradictory decisions of the domestic
courts on the issue of avenues of judicial review to be followed by
those detained with a view to extradition. Thus, on 24 August 2004
the Ivanovo Regional Court found that the applicants' applications
for release could not be examined in criminal proceedings and
indicated that they were to be examined in civil proceedings.
However, on 12 and 19 March 2007 the same court upheld on appeal
a diametrically opposed decision of 22 January 2007 indicating
that the applications for release were to be examined in criminal,
rather than civil, proceedings (see paragraphs 43 and 47 above). The
Court concludes that the applicants were caught in a vicious circle
of shifted responsibility where no domestic court, whether civil or
criminal, was capable of reviewing the alleged unlawfulness of their
detention.
The
Court will now examine in detail whether the applicants could obtain
judicial review of the lawfulness of their detention in civil or
criminal proceedings.
As
regards the possibility of initiating civil proceedings, the Court
observes that the applicants sought judicial review of their
detention pursuant to Articles 254 § 1 and 255 of the Code of
Civil Procedure (see paragraph 89 above). However, their applications
were disallowed by the domestic courts which found that the
applicants' detention fell within the province of criminal rather
than civil procedural law (see paragraphs 39 and 47 above).
As
regards the possibility of seeking judicial review of detention under
criminal procedural law, the Court notes that Article 125 of the Code
of Criminal Procedure provided, in principle, for judicial review of
complaints about alleged infringements of rights and freedoms which
would presumably include the constitutional right to liberty. That
provision conferred standing to bring such a complaint solely on
“parties to criminal proceedings”. The Russian
authorities consistently refused to recognise the applicants'
position as a party to criminal proceedings on the ground that there
was no criminal case against them in Russia (see paragraphs 42, 44
and 46 above). That stance obviously negated their ability to seek
judicial review of the lawfulness of their detention.
Finally,
the Court will examine the Government's argument that the applicants
had been able to obtain a review of their detention under Article 109
of the Code of Criminal Procedure. It has already found that Article
109 did not entitle a detainee to initiate proceedings for
examination of the lawfulness of his detention (see Nasrulloyev,
cited above, § 88). The Court observes that Article 109 sets
specific time-limits by which the prosecutor must solicit the court
for an extension of the custodial measure. In examining the
application for an extension, the court must decide whether
continuation of the custodial measure is lawful and justified and, if
it is not, release the detainee. Admittedly, the detainee has the
right to take part in these proceedings, make submissions to the
court and plead for his or her release. There is nothing, however, in
the wording of either Article 108 or Article 109 to indicate
that these proceedings could be taken on the initiative of the
detainee, the prosecutor's application for an extension of the
custodial measure being the required element for institution of such
proceedings. No application for extension of detention had been made
by the prosecutor in the applicants' case. In these circumstances,
the Court cannot find that Article 109 secured the applicants' right
to take proceedings by which the lawfulness of their detention would
be examined by a court.
The
Court concludes that all of the applicants' attempts to have their
applications for release examined in civil or criminal proceedings
failed. It follows that throughout the term of the applicants'
detention they did not have at their disposal any procedure for
judicial review of its lawfulness.
There
has therefore been a violation of Article 5 § 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained under Article 6 § 1 of the Convention that
on their return to Uzbekistan they would face an unfair trial. The
relevant parts of Article 6 § 1 read as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
The
applicants did not file any submissions under Article 6 § 1.
The
Government submitted that the Uzbek authorities had guaranteed that
the applicants would not be prosecuted or punished for any offences
committed before extradition which were not mentioned in the
extradition request, and that they would not be ill-treated in order
to obtain confessions or sentenced to death. The Government had also
received assurances that the applicants' rights of defence would be
respected and that they would be provided with counsel.
The
Court reiterates that an issue might exceptionally be raised under
Article 6 by an extradition decision in circumstances where the
fugitive has suffered or risks suffering a flagrant denial of a fair
trial in the requesting country (see Soering v. the United
Kingdom, judgment of 7 July 1989, Series A no. 161,
§ 113). However, in view of the Court's conclusion that the
applicants' extradition to Uzbekistan would give rise to a violation
of Article 3 of the Convention (see paragraph 128 above), it is not
necessary to examine separately whether their extradition would also
infringe Article 6 § 1 of the Convention (compare Saadi,
cited above, § 160).
V. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
Under
Article 6 § 2 of the Convention the applicants complained that
the wording of the extradition decisions violated their right to be
presumed innocent. Article 6 § 2 reads as follows:
“ Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
A. The parties' submissions
The
applicants submitted that in his decisions to extradite the
applicants the First Deputy Prosecutor General of the Russian
Federation had unambiguously stated that the applicants had
“committed” certain criminal offences. The extradition
decision had been sent to the Prosecutor General's Office of
Uzbekistan and had been included in the applicants' criminal files.
The prosecutor's statements might influence the Uzbek courts and
serve as evidence of the applicants' guilt. Therefore, their right to
be presumed innocent had been violated.
The
Government claimed that Article 463 § 6 of the Criminal Code
prohibited the courts from assessing the applicants' guilt or
innocence (see paragraph 88 above). The courts had only reviewed the
lawfulness of the extradition orders, without considering whether the
applicants were guilty of the imputed offences.
B. The Court's assessment
The
Court reiterates that 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,
20 November 2003).
The
presumption of innocence enshrined in paragraph 2 of Article 6 is one
of the elements of the fair criminal trial that is required by
paragraph 1 (see Allenet de Ribemont v. France, judgment
of 10 February 1995, Series A no. 308, § 35). It
prohibits the premature expression by the tribunal itself of the
opinion that the person “charged with a criminal offence”
is guilty before he has been so proved according to law (see Minelli
v. Switzerland, judgment of 25 March 1983, Series A no. 62, where
the Assize Court hearing the criminal case found the prosecution
time-barred but went on nonetheless to decide whether, if it had
continued, the applicant would probably have been found guilty for
the purposes of costs orders). It also covers statements made by
other public officials about pending criminal investigations which
encourage the public to believe the suspect guilty and prejudge the
assessment of the facts by the competent judicial authority (see
Allenet de Ribemont, § 41, where remarks were made by a
minister and police superintendent to the press naming without
qualification the applicant, arrested that day, as an accomplice to
murder; see also Daktaras v. Lithuania, no. 42095/98,
§§ 41 to 43, ECHR 2000 X; and Butkevičius
v. Lithuania, no. 48297/99, § 49, ECHR 2002 II
(extracts)).
The
Court will first examine whether the applicants may be regarded in
the circumstances of this case as “charged with a criminal
offence” for the purposes of Article 6 § 2 when the
impugned extradition decisions in respect of them were issued. It
observes that the applicants were not charged with any criminal
offence within Russia. The extradition proceedings against them did
not concern the determination of a criminal charge, within the
meaning of Article 6 of the Convention (see Maaouia v. France
[GC], no. 39652/98, § 40, ECHR 2000 X).
Accordingly, at the time when the extradition decisions were made
there was no criminal prosecution against the applicants in Russia of
which the prosecutor's statements might be regarded as prejudging the
outcome.
In
the case of Zollmann (cited above) the Court did not confine
itself to the finding that no criminal proceedings were pending
against the applicant within the United Kingdom, it went on to
examine whether the statements of a State official were linked to any
criminal investigations instigated against the applicant abroad. In
the present case, the Court must also ascertain whether there was any
close link, in legislation, practice or fact, between the impugned
statements made in the context of the extradition proceedings and the
criminal proceedings pending against the applicants in Uzbekistan
which might be regarded as sufficient to render the applicants
“charged with a criminal offence” within the meaning of
Article 6 § 2 of the Convention (compare Zollmann,
cited above).
The
Court observes that the applicants' extradition was ordered for the
purpose of their criminal prosecution. The extradition proceedings
were therefore a direct consequence, and the concomitant, of the
criminal investigation pending against the applicants in Uzbekistan.
The Court therefore considers that there was a close link between the
criminal proceedings in Uzbekistan and the extradition proceedings
justifying the extension of the scope of the application of Article 6
§ 2 to the latter. Moreover, the wording of the extradition
decisions clearly shows that the prosecutor regarded the applicants
as “charged with criminal offences” which is in itself
sufficient to bring into play the applicability of Article 6 § 2
of the Convention. The Court also notes that in the case of P. and
R.H. and L.L. v. Austria (no. 15776/89, Commission decision of
5 December 1989, Decisions and Reports (DR) 64, p. 269) the
Commission considered the applicants awaiting extradition from
Austria to the United States as “charged with a criminal
offence” within the meaning of Article 6 § 2 of the
Convention. The Court therefore concludes that Article 6 § 2 was
applicable in the present case.
The
Court will next examine whether the reasoning contained in the First
Deputy Prosecutor General's decisions to extradite the applicants
amounts in substance to a determination of the applicants' guilt
contrary to Article 6 § 2.
The
Court reiterates that the presumption of innocence will be violated
if a judicial decision or a statement by a public official concerning
a person charged with a criminal offence reflects an opinion that he
is guilty before he has been proved guilty according to law. It
suffices, even in the absence of any formal finding, that there is
some reasoning suggesting that the court or the official regards the
accused as guilty. A fundamental distinction must be made between a
statement that someone is merely suspected of having committed a
crime and a clear declaration, in the absence of a final conviction,
that an individual has committed the crime in question. The Court
emphasises the importance of the choice of words by public officials
in their statements before a person has been tried and found guilty
of a particular criminal offence (see Böhmer v. Germany,
no. 37568/97, §§ 54 and 56, 3 October 2002; and
Nešťák v. Slovakia, no. 65559/01,
§§ 88 and 89, 27 February 2007).
The
decision to extradite the applicants does not in itself offend the
presumption of innocence (see, mutadis mutandis, X. v.
Austria, no. 1918/63, Commission decision of 18 December
1963, Yearbook 6, p. 492). However, the applicants' complaint is
not directed against the extradition as such, but rather against the
reasoning contained in the extradition decisions. The Court considers
that an extradition decision may raise an issue under Article 6 §
2 if supporting reasoning which cannot be dissociated from the
operative provisions amounts in substance to the determination of the
person's guilt (see, mutadis mutandis, Lutz v. Germany,
judgment of 25 August 1987, Series A no. 123, § 60;
and Minelli, cited above, § 34).
The
extradition decisions declared that the applicants should be
extradited because they had “committed” acts of terrorism
and other criminal offences in Uzbekistan (see paragraphs 68 and 69
above). The statement was not limited to describing a “state of
suspicion” against the applicants, it represented as an
established fact, without any qualification or reservation, that they
had been involved in the commission of the offences, without even
mentioning that they denied their involvement. The Court considers
that the wording of the extradition decisions amounted to a
declaration of the applicants' guilt which could encourage the public
to believe them guilty and which prejudged the assessment of the
facts by the competent judicial authority in Uzbekistan.
As
regards the Government's argument that the domestic courts had not
assessed the applicants' guilt as they were prohibited from doing so
by domestic law, the Court notes that the applicants complained about
the prosecutor's statements contained in the extradition decisions,
not about the judicial decisions or any statements made by the
courts. The Ivanovo Regional Court found that the extradition
decisions only described the charges against the applicants, and did
not contain any findings as to their guilt (see paragraph 72 above).
However, that interpretation was at odds with the unambiguous wording
of the extradition decisions, namely that the applicants had
“committed” the imputed offences. By upholding the
extradition decisions without altering their wording the courts
failed to rectify the defects of the extradition orders (compare
Minelli, cited above, § 40, Hammern v. Norway,
no. 30287/96, § 48, 11 February 2003; and Y v.
Norway, no. 56568/00, § 45, ECHR 2003 II
(extracts)).
Accordingly,
there has been a violation of Article 6 § 2 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
Each
applicant claimed 15,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government submitted that no compensation for non-pecuniary damage
should be awarded to the applicants because their rights had not been
violated. In any event, a finding of a violation would constitute
sufficient just satisfaction.
The
Court considers that sufficient just satisfaction would not be
provided solely by the finding of a violation and that compensation
has thus to be awarded. Making an assessment on an equitable basis,
it awards EUR 15,000 to each of the applicants in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
Relying
on the fee agreements and the lawyer's timesheets, the applicants
claimed the following amounts for their representation by Ms Sokolova
before the domestic courts and the Court until 1 May 2007:
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.
In addition, the applicants claimed EUR 494 each for
their representation by Ms Sokolova which was paid on their behalf by
the Human Rights Centre Memorial. The applicants submitted that their
representation after 1 May 2007 had been paid out of money
received from the Court by way of legal aid. Mr Alimov also claimed
EUR 195 for postal expenses.
The
Government submitted that the applicants had not submitted any proof
that the payments had actually been made. The articles of association
of the Human Rights Centre Memorial did not provide for the rendering
of financial services to citizens. Therefore their financial help to
the applicants had been voluntary and was not recoverable.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. The Court is satisfied that the lawyer's
rate and the number of hours claimed were not excessive. The fact
that part of the legal fees was settled on the applicants' behalf by
the Human Rights Centre Memorial is not material for the purposes of
Article 41. The legal costs may be regarded as having been incurred
by the applicants in the sense that they, as clients, made themselves
legally liable to pay their lawyer on an agreed basis (compare
Dudgeon v. the United Kingdom (Article 50), judgment of
24 February 1983, Series A no. 59, § 21).
The Court further notes that the applicants submitted receipts
showing the amount of postal expenses. Having regard to the
information in its possession, the Court considers it reasonable to
award the following amounts to the applicants for their legal
representation by Ms Sokolova, plus any tax that may be chargeable to
the applicants on them:
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.
The
Court also awards Mr Alimov EUR 195 for postal expenses, plus any tax
that may be chargeable on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares the remainder of the application
admissible unanimously;
Holds by six votes to one that in the event of
the extradition orders against the applicants being enforced, there
would be a violation of Article 3 of the Convention;
Holds unanimously that there has been a
violation of Article 5 § 1 of the Convention;
Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention;
Holds unanimously that there is no need to
examine the complaint under Article 6 § 1 of the Convention;
Holds by six votes to one that there has been a
violation of Article 6 § 2 of the Convention;
Holds by six votes to one
(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.
Søren
Nielsen Christos Rozakis
Registrar President
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.
C.L.R.
S.N.
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.
In
my opinion, the finding of a potential violation of Article 3 of the
Convention “in the event of the extradition orders against the
applicants being enforced” constitutes a radical reading of the
recent judgment in Saadi v. Italy (no. 37201/06, [GC],
judgment of 28 February 2008), and especially of the following
conclusion: “The weight to be given to assurances from the
receiving State depends, in each case, on the circumstances obtaining
at the material time” (see Saadi, cited above, § 148).
It will be recalled that in the Grand Chamber's judgment in the case
of Mamatkulov and Askarov v. Turkey concerning extradition to
the same country – Uzbekistan – the Court concluded as
follows, taking into account an assurance obtained from the Uzbek
Government before the extradition date: “In the light of the
material before it, the Court is not able to conclude that
substantial grounds existed at the aforementioned date for believing
that the applicants faced a real risk of treatment proscribed by
Article 3” (see Mamatkulov and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, § 77, ECHR 2005-I).
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.
The
second point of my disagreement concerns the alleged violation of
Article 6 § 2 on the ground of a breach of the presumption of
innocence owing to the wording of the prosecutor's decision on
extradition. I agree with the Ivanovo Regional Court's position that
the extradition decision simply described the charges against the
applicants, as received from the Uzbek authorities, and did not
contain any findings as to their guilt.
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.
As
I voted only on the violation of Article 5 § 1 and § 4 of
the Convention, it is logical that the amounts in respect of
non-pecuniary damage could be reduced. As to the costs of legal
representation, I recall that in other comparable and no less
complicated cases the Court awarded the lawyers much more modest
amounts (EUR 1,400 in Nasrulloyev and EUR 790 in Garabayev):
a simple arithmetical multiplication by the number of applicants is
not fair in my view.
