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DZHURAYEV v. RUSSIA - 38124/07 [2009] ECHR 2074 (17 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2074.html
Cite as:
[2009] ECHR 2074
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FIRST
SECTION
CASE OF DZHURAYEV v. RUSSIA
(Application
no. 38124/07)
JUDGMENT
STRASBOURG
17
December 2009
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 Dzhurayev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38124/07) 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 a national of Uzbekistan, Mr Yashin Yakubovich
Dzhurayev (“the applicant”), on 3 September 2007.
The
applicant was represented by Ms M. Morozova, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr G.
Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
On
4 September 2007 the President of the Chamber decided to apply
Rule 39 of the Rules of Court, indicating to the Government that
the applicant should not be expelled to Uzbekistan until further
notice.
On
24 April 2008 the Court decided to apply Rule 41 of the Rules of
Court and to grant priority treatment to the application, as well as
to give notice of the application to the Government. 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
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1966 and lives in Tashkent, Uzbekistan. He is
currently residing in Moscow.
A. Proceedings in Uzbekistan
In
January 2005, when the applicant was living in Uzbekistan, a district
court in Tashkent convicted him of being a member of the Islamic
religious organisation Tablighi Dzhamaat, prohibited in Uzbekistan.
The court ordered him to pay a fine in an amount equal to sixty times
the minimum monthly wage.
The
applicant paid the fine and continued to reside in Uzbekistan.
However, according to him, he felt constant pressure from the
law enforcement agencies, which required him to report on all
his actions and movements and, in case of delay or failure on his
part, threatened to arrest his elder son. So as not to put his family
in danger, on 6 December 2005 the applicant left Uzbekistan for
Moscow.
In
the meantime the Supreme Court of Uzbekistan quashed the decision of
January 2005 on the ground that the sentence was too mild and
remitted the case for fresh examination.
On
9 January 2006 the Sobir Rakhimovskiy District Court of Tashkent
ordered the applicant to be remanded in custody. On that basis a
cross-border search warrant for the applicant was issued.
B. Proceedings in Russia
1. Extradition proceedings
On
26 January 2007 the applicant was arrested in Moscow on the basis of
the cross-border search warrant.
On
an unspecified date the Tashkent Department of the Interior sent the
Meshchanskiy District Department of the Interior of Moscow a request
to keep the applicant in custody and enclosed a copy of the Sobir
Rakhimovskiy District Court’s decision of 9 January 2006.
On 29 January 2007 the Meshchanskiy Inter-District
Prosecutor’s Office in Moscow issued a decision on application
of a preventive measure and ordered that the applicant be placed in
custody on the basis of the Uzbek court’s decision of 9 January
2006. Article 61 of the Minsk Convention was cited as a legal source
for application of the preventive measure. The decision indicated
that the applicant should remain in custody until the Prosecutor
General’s Office decided on his extradition; the term of the
detention was not specified. It was not mentioned whether the
decision could be appealed against. On the same day the applicant was
placed in remand prison SIZO-77/4, Moscow.
On
12 February 2007 the applicant applied to the Russian Prosecutor
General’s Office. He asked it to refuse the request of the
Uzbek Prosecutor General’s Office for his extradition and to
release him from custody since he was charged with a crime that did
not constitute a criminal offence under Russian law.
On
28 February 2007 the Uzbek Prosecutor General’s Office
requested the Russian Prosecutor General’s Office to extradite
the applicant.
On
23 March 2007 the Russian Prosecutor General’s Office informed
the applicant that no final decision had been taken in respect of the
extradition and there were therefore no grounds to change the
preventive measure applied in his case.
On 29 June 2007 the Meshchanskiy Inter-District
Prosecutor’s Office issued a new decision to remand the
applicant in custody pursuant to Article 466 § 2 of the CCP and
Article 60 of the Minsk Convention. The decision indicated that the
applicant should remain in custody until the Prosecutor General’s
Office decided on his extradition; the term of the detention was not
specified. It was not mentioned whether the decision could be
appealed against. Neither the applicant nor his counsel was provided
with a copy of the decision. The applicant was not notified of it
until 27 July 2007, in the remand prison, as confirmed by his
signature on a copy of the decision.
On
23 August 2007 the Russian Prosecutor General’s Office
dismissed the request of the Uzbek Prosecutor General’s Office
for the applicant’s extradition because the acts with which the
applicant had been charged did not constitute a crime under Russian
law.
On
28 August 2007 the Meshchanskiy Inter-District Prosecutor’s
Office received notification from the Russian Prosecutor General’s
Office that the Uzbek authorities’ request for the applicant’s
extradition had been dismissed.
On
30 August 2007 the Meshchanskiy Inter-District Prosecutor’s
Office issued a decision authorising the applicant’s release.
The applicant was released from the remand prison.
2. Expulsion proceedings
On
30 August 2007, immediately after his release, the applicant was
conveyed by policemen to the Meshchanskiy District Court of Moscow.
At the hearing held on the same date, the court found the applicant
guilty of an administrative offence: breach by a foreigner of the
rules on entry and stay in the territory of the Russian Federation.
The court imposed a fine of 5,000 Russian roubles on the applicant
and ordered his expulsion. The court also ordered that pending his
expulsion the applicant should be held in the centre for detention of
foreign nationals of the Moscow Main Directorate of Internal Affairs.
The applicant appealed.
On
4 September 2007 the Court indicated to the respondent Government
that the applicant should not be expelled to Uzbekistan until further
notice.
On
11 September 2007 the Moscow City Court quashed the decision of the
Meshchanskiy District Court and the applicant was released.
3. Further developments
On
28 September 2007 policemen stopped the applicant in the Moscow
underground in order to check his papers. It appeared that the
applicant was still on the cross-border wanted list, and he was taken
to a police station for a decision concerning his arrest. After his
counsel arrived and clarified the applicant’s situation, he was
released. The applicant then applied to the Office of the Prosecutor
General to be removed from the list.
On
1 October 2007 the Russian Prosecutor General’s Office ordered
the Ministry of the Interior to remove the applicant’s name
from the cross border wanted list owing to the refusal to
extradite him.
4. Asylum proceedings
On
2 February 2007 the applicant applied to the Moscow Department of the
Federal Migration Service for asylum.
On
16 March 2007 officials of the Moscow Department of the Federal
Migration Service questioned the applicant in the presence of his
counsel.
On
26 March 2007 the Moscow Department of the Federal Migration Service
dismissed the applicant’s application on the ground that he did
not meet the requirements provided for in domestic law for granting
asylum. The applicant lodged a complaint with a court.
On
23 August 2007 the Zamoskvoretskiy District Court of Moscow dismissed
the applicant’s complaint. The applicant appealed.
On
18 October 2007 the Moscow City Court dismissed the appeal in the
final instance.
On
13 November 2007 the applicant was recognised as a mandate refugee by
the United Nations High Commissioner for Refugees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Constitution of the Russian Federation of 1993
Everyone has a right to liberty and security (Article 22 § 1).
Arrest, placement in custody and custodial detention are permissible
only on the basis of a court order. The term during which a person
may be detained prior to obtaining such an order cannot exceed
forty-eight hours (Article 22 § 2).
2. Code of Criminal Procedure
The
term “court” is defined by the Code of Criminal Procedure
(CCP) of 2002 as “any court of general jurisdiction which
examines a criminal case on the merits and delivers decisions
provided for by this Code” (Article 5 § 48). The term
“judge” is defined by the CCP as “an official
empowered to administer justice” (Article 5 § 54).
A
district court has the power to examine all criminal cases except for
those falling within the respective jurisdictions of a justice of the
peace, a regional court or the Supreme Court of Russia (Article 31 §
2).
Chapter 13 of the CCP governs the application of
preventive measures. Placement in custody is a preventive measure
applied on the basis of a court decision to a person suspected of or
charged with a crime punishable with at least two years’
imprisonment where it is impossible to apply a more lenient
preventive measure (Article 108 § 1). A request for placement in
custody should be examined by a judge of a district court or a
military court of a corresponding level (Article 108 § 4). A
judge’s decision on placement in custody may be challenged
before an appeal court within three days (Article 108 § 11). The
period of detention pending investigation of a crime cannot exceed
two months (Article 109 § 1) but may be extended up to six
months by a judge of a district court or a military court of a
corresponding level (Article 109 § 2). Further extensions may be
granted only if the person is charged with serious or particularly
serious criminal offences (Article 109 § 3).
Chapter 16 of the CCP lays down the procedure by which
acts or decisions of a court or public official involved in criminal
proceedings may be challenged. Acts or omissions of a police officer
in charge of the inquiry, an investigator, a prosecutor or a court
may be challenged by “parties to criminal proceedings” or
by “other persons in so far as the acts and decisions [in
question] touch upon those persons’ interests” (Article
123). Those acts or omissions may be challenged before a prosecutor
(Article 124). Decisions taken by police or prosecution
investigators or prosecutors not to initiate criminal proceedings, or
to discontinue them, or any other decision or inaction capable of
impinging upon the rights of “parties to criminal proceedings”
or of “hindering an individual’s access to court”
may be subject to judicial review (Article 125).
Extradition
may be denied if the act that gave grounds for the extradition
request does not constitute a crime under the Russian Criminal Code
(Article 464 § 2 (1)).
Upon receipt of a request for extradition accompanied
by an arrest warrant issued by a foreign judicial body, a prosecutor
may place the person whose extradition is being sought under house
arrest or in custodial detention without prior approval of his or her
decision by a court of the Russian Federation (Article 466 § 2).
3. The CIS Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters (the 1993 Minsk
Convention)
When performing actions requested under the Minsk
Convention, a requested official body applies its country’s
domestic laws (Article 8 § 1).
Upon
receipt of a request for extradition the requested country should
immediately take measures to search for and arrest the person whose
extradition is sought, except in cases where no extradition is
possible (Article 60).
The
person whose extradition is sought may be arrested before receipt of
a request for extradition, if there is a related petition. The
petition must contain a reference to a detention order and
indicate that a request for extradition will follow (Article 61 §
1). If the person is arrested or placed in detention before receipt
of the extradition request, the requesting country must be
informed immediately (Article 61 § 3).
4. Decisions of the Constitutional Court
(a) Decision of the Constitutional Court
no. 101-O of 4 April 2006
Verifying
the compatibility of Article 466 § 1 of the CCP with the Russian
Constitution, the Constitutional Court reiterated its constant
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.
In the Constitutional Court’s view, the
guarantees of the right to liberty and personal integrity set out in
Article 22 and Chapter 2 of the Constitution, as well as the legal
norms of Chapter 13 of the CCP on preventive measures, were fully
applicable to detention with a view to extradition. Accordingly,
Article 466 of the CCP did not allow the authorities to apply a
custodial measure without respecting the procedure established in the
CCP, or in excess of the time-limits fixed therein.
(b) Decision of the Constitutional Court
no. 158-O of 11 July 2006 on the Prosecutor General’s request
for clarification
The
Prosecutor General asked the Constitutional Court for an official
clarification of its decision no. 101-O of 4 April 2006 (see above),
for the purpose, in particular, of elucidating the procedure for
extending a person’s detention with a view to extradition.
The
Constitutional Court dismissed the request on the ground that it was
not competent to indicate specific criminal-law provisions governing
the procedure and time-limits for holding a person in custody with a
view to extradition. That was a matter for the courts of general
jurisdiction.
(c) Decision of the Constitutional Court
no. 333-O-P of 1 March 2007
In
this decision the Constitutional Court reiterated that Article 466 of
the CCP did not imply that detention of a person on the basis of an
extradition request did not have to comply with the terms and
time-limits provided for in the legislation on criminal procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (f) AND 4
OF THE CONVENTION
The
applicant complained under Article 5 § 1 (f) of the Convention
that his detention pending extradition had been unlawful. 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 to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
He
also complained under Article 5 § 4 and Article 13 of the
Convention that he had been unable to challenge the lawfulness of his
detention in Russia before a court. Considering that Article 5 §
4 is lex specialis to Article 13, the Court will examine this
complaint under Article 5 § 4 of the Convention, 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.”
A. The parties’ arguments
1. The Government
The
Government contested the applicant’s arguments. They insisted
that he had not exhausted the domestic remedies available to him
because he had not lodged complaints about unlawful actions of a
prosecutor to either a higher prosecutor or a court as he was
entitled to do under Articles 124 and 125 of the CCP. In particular,
he had not appealed against the decisions of the Meshchanskiy
Inter-District Prosecutor’s Office of 29 January and 29 June
2007. The Government disagreed with the applicant’s assertion
that Article 125 of the CCP had been inapplicable in his situation as
it concerned only “parties to criminal proceedings”. They
referred in this respect to Article 123 of the CCP, under which not
only “parties to criminal proceedings” but also “other
persons” were entitled to complain about a prosecutor’s
actions.
The
Government further submitted that the applicant’s detention
awaiting a decision on the extradition request was lawful under both
Russian law and the Minsk Convention. The terms of detention pending
extradition were regulated in part by the Minsk Convention and by
Chapter 13 of the CCP, as had been clarified by the Ruling of
the Russian Constitutional Court of 4 April 2006. The maximum term of
detention could not exceed eighteen months. The applicant had spent
about seven months in custody, which appeared to be a reasonable
time.
2. The applicant
The
applicant disagreed with the Government and emphasised that he had
had no effective domestic remedies to exhaust in relation to his
complaints. In fact on 12 February 2007 he had applied to the
Prosecutor General’s Office under Article 124 of the CCP,
asking to be released from custody; on 26 March 2007 the Prosecutor
General’s Office had informed him that there were no grounds to
change the preventive measure because the extradition request was
still being examined. The applicant had not been notified of the
ruling of 29 June 2007 until 27 July 2007 and had thus been deprived
of an opportunity to challenge it before a higher prosecutor. The
applicant further argued that he had been unable to complain to a
court under Article 125 of the CCP because he had not been charged
with any criminal offence in Russia.
The
applicant asserted that Russian laws concerning detention pending
extradition did not comply with the Convention criteria of quality of
law. He also claimed that the length of his detention pending
extradition had been excessive.
Lastly,
the applicant asserted that his detention between 23 and 30 August
2007 had had no legal basis and had thus been arbitrary.
B. The Court’s assessment
1. Admissibility
Turning
to the Government’s plea of non-exhaustion, the Court considers
that the issue of exhaustion of domestic remedies is closely linked
to the merits of the applicant’s complaint under Article 5 §
4 of the Convention. Thus, the Court finds it necessary to join the
Government’s objection to the merits of this complaint. The
Court further notes that the applicant’s complaints under
Article 5 §§ 1 and 4 are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and are
not inadmissible on any other grounds. They must therefore be
declared admissible.
2. Merits
(a) Article 5 § 4 of the Convention
The
Court will first examine the applicant’s complaint under
Article 5 § 4 of the Convention.
The Court reiterates that the purpose of Article 5 §
4 is to guarantee 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, 18 June 1971, § 76,
Series A no. 12). A remedy must be made available during a person’s
detention to allow that person to obtain speedy judicial review of
its lawfulness. That review should be capable of leading, where
appropriate, to release. The existence of the remedy required by
Article 5 § 4 must be sufficiently certain, failing which
it will lack the accessibility and effectiveness required for the
purposes of that provision (see Talat Tepe v. Turkey, no.
31247/96, § 72, 21 December 2004).
The
Court first notes that the applicant was detained pending extradition
on the basis of two decisions of the inter-district prosecutor’s
office. Neither decision indicated that it was open to appeal (see
paragraphs 13 and 17 above). The first decision, of 29 January 2007,
stated that the applicant was being detained under Article 61 of the
Minsk Convention, while the second one, of 29 June 2007, cited
Article 466 § 2 of the CCP and Article 60 of the Minsk
Convention as legal grounds for the detention.
The
Court points out in this respect that domestic legal provisions
should be applicable where actions are performed under the Minsk
Convention (see paragraph 39 above). The Minsk Convention does not
contain any rules on procedure for challenging a decision on
placement in custody pending extradition under its Articles 60 and
61. Accordingly, the applicant had no remedies deriving from that
Convention to challenge the lawfulness of his detention pending
extradition.
The
Government emphasised that the inter-district prosecutor’s
office had based its decisions concerning the applicant’s
detention on the decision of the Sobir Rakhimovskiy District Court of
Tashkent of 9 January 2006, pursuant to Article 466 § 2 of the
CCP. The Court observes that it is clear that the applicant had no
avenue to challenge the lawfulness of an arrest warrant issued by an
Uzbek court before a Russian court and was thus unable to obtain a
judicial review of the lawfulness of his detention on the basis of
that warrant.
As
to the Government’s reference to Chapter 13 of the CCP, the
Court points out that the only provision of this Chapter governing
complaints about the lawfulness of custodial detention provides that
a court’s decision on placement in custody is appealable to a
higher court (see paragraph 35 above). Chapter 13 remains silent when
it comes to detention authorised by a prosecutor, not a court.
Therefore, the applicant had no possibility to complain to a court
about the inter-district prosecutor’s office’s decisions
of 29 January and 29 June 2007 under the provisions of Chapter 13 of
the CCP, as suggested by the Government.
As
to the Government’s assertion that the applicant could have
complained about the unlawfulness of his detention to a prosecutor or
a court under Articles 124 and 125 of the CCP, the Court observes
that Chapter 16 of the CCP concerns the possibility for “parties
to criminal proceedings” to challenge decisions taken in the
course of a preliminary investigation, such as a decision not to
initiate criminal proceedings or a decision to discontinue them.
There is no indication that the applicant was a party to criminal
proceedings within the meaning given to that phrase by the Russian
courts (see Muminov v. Russia,
no. 42502/06, § 115, 11 December 2008, and Nasrulloyev
v. Russia, no. 656/06, § 89, 11 October 2007). Furthermore,
the Government have provided no explanation as to how the applicant
could have claimed to qualify as “other persons” within
the meaning of Article 123 of the CCP to be able to challenge
officials’ acts and decisions “touching upon” his
interests. Moreover, it is clear from the wording of Article 125 of
the CCP that “other persons” within the meaning of
Article 123 of the CCP do not have a right to complain before a court
about officials’ acts and decisions. Thus, the Court is not
persuaded that the provisions of Chapter 16 of the CCP could have
been applied in the applicant’s case as suggested by the
Government.
In
such circumstances the Court concludes that the Government failed to
show that the existence of the remedies invoked was sufficiently
certain both in theory and in practice and, accordingly, that these
remedies lack the requisite accessibility and effectiveness (see A.
and E. Riis v. Norway, no. 9042/04, § 41,
31 May 2007, and Vernillo v. France, 20 February
1991, § 27, Series A no. 198). The Government’s
objection concerning non-exhaustion of domestic remedies must
therefore be dismissed.
It
follows that throughout the term of the applicant’s detention
pending a decision on his extradition he did not have at his disposal
any procedure for a judicial review of its lawfulness. There has
therefore been a violation of Article 5 § 4 of the Convention.
(b) Article 5 § 1 of the Convention
Article 5 enshrines a fundamental human right, namely
the protection of the individual against arbitrary interference by
the State with his or her right to liberty (see Aksoy v. Turkey,
18 December 1996, § 76, Reports of Judgments and Decisions
1996-VI). The text of Article 5 makes it clear that the
guarantees it contains apply to “everyone” (see A. and
Others v. the United Kingdom [GC], no.
3455/05, § 162, ECHR 2009 ...). Sub-paragraphs (a)
to (f) of Article 5 § 1 contain an exhaustive list of
permissible grounds on which persons may be deprived of their liberty
and no deprivation of liberty will be lawful unless it falls within
one of those grounds (see Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008).
It
is common ground between the parties that the applicant was detained
as a person “against whom action is being taken with a view to
deportation or extradition” and that his detention fell under
Article 5 § 1 (f). The parties dispute, however, whether this
detention was “lawful” within the meaning of Article 5 §
1 of the Convention,
66. 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 thereof. Compliance with national
law is not, however, sufficient: Article 5 § 1 requires in
addition that any deprivation of liberty should be in keeping with
the purpose of protecting the individual from arbitrariness (see
Erkalo v. the Netherlands, 2 September 1998, § 52,
Reports 1998-VI; Steel and Others v. the United Kingdom,
23 September 1998, § 54, Reports 1998-VII; and
Saadi, cited above, § 67).
Although it is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law,
under Article 5 § 1 failure to comply with domestic law entails
a breach of the Convention and the Court can and should therefore
review whether this law has been complied with (see Benham v. the
United Kingdom, 10 June 1996, § 41, Reports 1996-III;
Ječius v. Lithuania, no. 34578/97, § 68, ECHR
2000 IX; and Ladent v. Poland, no. 11036/03, §
47, ECHR 2008-... (extracts)).
Turning
to the circumstances of the present case, the Court observes that the
applicant’s initial placement in custody was ordered, on 29
January 2007, by the inter-district prosecutor’s office on the
basis of the provisions of the Minsk Convention. The Court also notes
that, although the decision of 29 January 2007 contained no reference
to Article 466 § 2 of the CCP, the prosecutor’s authority
under domestic law to decide on the applicant’s placement in
custody without a Russian court order must have derived from that
provision (see paragraph 38 above).
The
Court points out that neither Article 61 of the Minsk Convention nor
Article 466 § 2 of the CCP stipulate any rules on procedure to
be followed when choosing a preventive measure in respect of a person
whose extradition is sought, or any time-limits for his or her
detention pending extradition.
The
Court observes in this respect that by the time of the applicant’s
placement in custody the Russian Constitutional Court had already
proclaimed that in extradition proceedings the right to liberty
should be attended by the same guarantees as in other types of
criminal proceedings. It unambiguously indicated that the application
of preventive measures with a view to extradition should be governed
not only by Article 466 but also by the norms on preventive measures
contained in Chapter 13 of the CCP (see paragraph 43 above).
Furthermore,
the Government confirmed that the applicant’s detention pending
extradition had been governed by Chapter 13 of the CCP, among other
provisions.
In
such circumstances the Court considers that, in order to be “lawful”
within the meaning of Article 5 § 1 (f) of the Convention, the
applicant’s detention should be compatible not only with the
requirements of Article 466 § 2 but also with the provisions
governing application of a preventive measure in the form of
placement in custody, namely Articles 108 and 109, which are
included in Chapter 13 of the CCP.
Article
108 § 4 of the CCP expressly provides that an issue of placement
in custody is to be decided upon by a judge of a district or military
court in the presence of the person concerned. It follows from the
wording of Article 5 § 48 and Article 31 § 2 of the CCP
that a district court is a court authorised to act on the basis of
the Russian Code of Criminal Procedure, which implies that the term
“district court” refers to a court established and
operating under Russian law. Accordingly, a judge of a district court
is an official authorised to administer justice on the territory of
the Russian Federation. Nothing in the wording of Article 108 §
4 of the CCP suggests that a foreign court may act as a substitute
for a Russian district court when deciding on a person’s
placement in custody.
Accordingly,
the fact that the applicant’s placement in custody was not
authorised by a Russian court is clearly in breach of Article 108 §
4 of the CCP.
Furthermore,
even assuming that the applicant’s initial placement in custody
was compatible with domestic legal provisions, it would have ceased
to be “lawful” after the lapse of the two-month period
provided for by Article 109 § 1 of the CCP. Article 109 § 2
of the CCP unequivocally stipulates that the two-month term of
custodial detention can be prolonged up to six months only on the
basis of a decision by a judge of a district court or a military
court of corresponding level. In the absence of any Russian court
decision to extend the applicant’s custodial detention, the
Court is bound to conclude that after 27 March 2007, that is, past
two months from the date of his placement in custody, the applicant
was detained in breach of domestic law.
The Court thus finds that the applicant’s
detention pending extradition cannot be considered “lawful”
for the purposes of Article 5 § 1 of the Convention. In these
circumstances, the Court does not need to consider separately the
applicant’s additional arguments concerning the quality of
domestic law, the length of his detention and his delayed release.
There
has therefore been a violation of Article 5 § 1 of the
Convention.
II. 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
The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
The
Government considered the amount claimed to be excessive and observed
that, should the Court find a violation of the Convention in respect
of the applicant, the mere finding would suffice as just
satisfaction.
The
Court notes that it has found violations of two provisions of Article
5 in respect of the applicant. The Court thus
accepts that he has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations and finds it
appropriate to award the applicant EUR 10,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 900 for the costs and expenses incurred
before the domestic authorities and EUR 850 for those incurred before
the Court. In support of his claims he submitted a copy of an
agreement with his lawyer.
The
Government did not comment on the applicant’s claims for costs
and expenses.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,750 covering costs
under all heads.
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 UNANIMOUSLY
Decides to join to the
merits the
Government’s objection as to non exhaustion of criminal
domestic remedies and rejects it;
Declares the application admissible;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds
(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, EUR 10,000 (ten
thousand euros), in respect of non-pecuniary damage, and EUR 1,750
(one thousand seven hundred and fifty euros), in respect of costs and
expenses, plus any tax that may be chargeable to the applicant on
these amounts, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
