CASE OF RYABIKIN v. RUSSIA
(Application no. 8320/04)
19 June 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 Ryabikin v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 29 May 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings in Turkmenistan
B. Proceedings relating to the applicant’s status in Russia
C. Request for extradition to Turkmenistan and the applicant’s detention
“The General Prosecutor’s Office of Turkmenistan presents its compliments to the Prosecutor General’s Office of the Russian Federation and issues a guarantee that Aleksandr Ivanovich Ryabikin will face criminal prosecution only in respect of the crimes committed by him (embezzlement on a large scale) and [that he] will not be subjected to, and has never been subjected to, persecution on political, religious or ethnic grounds.”
D. Further proceedings to challenge the lawfulness of the applicant’s detention
1. Proceedings before the Kuybyshevskiy district court
2. Proceedings before the Smolninskiy district court
3. Proceedings before the Dzerzhinskiy district court
“The applicant’s reference to Article 109 of the CCP is unfounded because Chapter 54 of the CCP, which regulates extradition on criminal charges, does not provide for a procedure for extending a person’s detention. Persons arrested under Article 466 of the CCP may remain in detention until extradited to the foreign State. The law on criminal procedure links the term of detention only to the pre-established date set by the parties for transfer of the detainee (Article 467 § 1 CCP). The law contains no reference to application of Article 109 by analogy; therefore, the obligation on the investigators to seek an extension of the detention does not apply to this category of persons. Neither the European Convention on Extradition (13 July 1957) nor the Minsk Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, as amended on 28 March 1997 (Article 62), contains any provision corresponding in meaning to Article 109 of the CCP.
The court does not question the fact that Mr Ryabikin, who is being kept in detention, has the right to judicial protection as guaranteed by the Constitution of Russia. However, the court considers that he and his lawyer can exercise this right by challenging the actions of the officials concerned through civil proceedings, by submitting a complaint to a competent court at the location of the St Petersburg prosecutor’s office or the Prosecutor General’s Office, which is the body on which Russian criminal procedural law confers responsibility for issues relating to extradition.”
4. Proceedings before the Kalininskiy district court
5. Appeals to the prosecutors’ offices
“[The applicant] was detained in St Petersburg in accordance with Article 61 of the [Minsk] Convention on Legal Assistance, as a person in respect of whom an international search warrant had been issued by the Turkmen law-enforcement bodies.
Within 40 days the Prosecutor General of Turkmenistan submitted a request for the extradition of Mr Ryabikin. On that basis, on an application by the St Petersburg prosecutor’s office, the Kuybyshevskiy district court applied the preventive measure of detention under Article 446 § 1 of the CCP.
The question of extending the detention of a person detained under Article 446 § 1 of the CCP is not dealt with by Russian legislation.
According to the information provided by the Representative of the Russian Federation at the European Court of Human Rights, the decision of the President of the Chamber of the European Court to apply Rule 39 of the Rules of Court concerned only the expulsion/extradition/deportation, or any other forcible transfer, of Mr Ryabikin to Turkmenistan, and no decision to release him has been taken.”
6. Complaints to the head of the detention facility
E. The applicant’s release
F. Subsequent developments
G. Conditions in Turkmenistan
“Large-scale violations of all the principles of due process of law, like arbitrary detentions or show trials took place. Not only torture has been used to extract confessions, but the forced use of drugs was a means of criminalising the detainees, entailing lethal risks for them. A multiform collective repression fell on the ‘enemies of the people’, whereas forced displacement is announced in arid regions of the country, especially against people targeted on the ground of their ethnic origin. Even if the death penalty has been legally abolished, in practice, the survival expectancy of political detainees and displaced persons seems very low.”
The Report recommended, inter alia:
“Third States, and particularly the States parties to the European Convention on Human Rights, should refuse to extradite or to hand over Turkmen nationals who, in the current circumstances, are in danger of being subjected to torture or inhuman and degrading treatments. They should envisage the possibility of granting refugee status to all persons having a well-founded fear of persecution and co-operate with the UNHCR to this end.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 2002 Code of Criminal Procedure (CCP)
B. The 1993 Minsk Convention
Article 61: Arrest or detention before the receipt of a request for extradition
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax.
2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.
3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”
Article 61-1: Search for a person before receipt of the request for extradition
“1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party ...
2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition.
3. A request for the search shall be accompanied by a certified copy of ... the detention order ...
4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.”
Article 62: Release of the person arrested or detained
“1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest.
2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.”
C. Case-law of the Constitutional Court
D. Case-law of the Supreme Court
“The term of detention of a person who is to be extradited to the place of commission of an offence... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], a person arrested at the request of a foreign state may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Submissions of the parties
2. General principles
3. Application in the present case
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of ... a person against whom action is being taken with a view to ... extradition.”
1. Submissions of the parties
2. The Court’s assessment
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
1. Submissions of the parties
2. The Court’s assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 8,299 (eight thousand two hundred and ninety-nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 19 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis