European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
ABDULAZHON ISAKOV v. RUSSIA - 14049/08 [2010] ECHR 1070 (8 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1070.html
Cite as:
[2010] ECHR 1070
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF ABDULAZHON ISAKOV v. RUSSIA
(Application
no. 14049/08)
JUDGMENT
STRASBOURG
8 July 2010
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 Abdulazhon Isakov
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,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 May and 17 June 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 14049/08) 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 an Uzbek national, Mr Abdulazhon (also spelled
as Abdullazhon) Isakov (“the applicant”), on 21 March
2008.
The
applicant was represented by Ms S. Gannushkina and Ms E. Ryabinina,
who were assisted by lawyers of the EHRAC/Memorial
Human Rights Centre, an NGO with offices in London and Moscow.
The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
The
applicant alleged that his detention by Russian authorities in view
of his extradition to Uzbekistan where he faced politically-based
persecution by the local authorities gave rise to violations of his
rights under Articles 3, 5 and 13 of the Convention.
On
10 November 2008 the President of the Chamber to which the case was
allocated decided, in the interests of the parties and the proper
conduct of the proceedings before the Court, to indicate to the
Government of Russia, under Rule 39 of the Rules of Court, that the
applicant should not be extradited to Uzbekistan until further
notice.
On
1 April 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1963 and is currently detained in Tyumen.
The
facts of the case, which were partially disputed by the parties, may
be summarised as follows.
A. Information submitted by the applicant
1. Background information
(a) General information
In
1981 the applicant, who was born and lived in Uzbekistan, received an
Uzbek passport. In 1989 he moved from Uzbekistan to Russia. From 1989
to 1995 the applicant resided on Shishkova Street, Tyumen, Russia.
It
appears that in June 1995 the applicant officially informed the Uzbek
authorities that he had changed his permanent residency from
Uzbekistan to Russia. From 1995 to 2001 the applicant was officially
registered as residing in Chikcha, the Tyumen Region. Since 13 March
2001 the applicant has been officially registered as residing on
Doronina Street in Tyumen.
(b) Proceedings concerning the validity of
the applicant’s Russian passport
In
December 2000 the applicant exchanged his USSR passport for a Russian
passport in Department of the Interior no. 6 in the Tsentralniy
district of Tyumen (ГОМ-6 УВД
Центрального
района Тюмени).
On
13 July 2005 the Passport and Visa Service of the Tyumen Regional
Department of the Interior (the UVD) examined the validity of the
applicant’s Russian passport and stated that the document had
been issued unlawfully, that it should be confiscated as invalid and
that the applicant was not a Russian citizen.
On
14 March 2008 the Department of the Federal Migration Service of the
Tyumen Region (the FMS) informed the Tyumen regional prosecutor’s
office that “... in 2005 the issuance of the Russian passport
to A.M. Isakov was declared unsubstantiated as he was not a Russian
citizen ... the passport was declared invalid and it was supposed to
be confiscated. However, as it has been impossible to establish A.M.
Isakov’s whereabouts, at the time of writing the passport has
not been confiscated...”
On
15 August 2008 (the document is also dated 15 August 2005) the
applicant complained to the Tsentralniy district court of Tyumen and
requested that the decision of 13 July 2005 be overruled as unlawful.
The applicant stated, among other things, that he was a Russian
citizen and that he had not been informed about the decision
concerning the invalidity of his passport until the hearing conducted
on 27 March 2008 by the Tsentralniy district court on the issue of
his detention pending extradition to Uzbekistan (see part
3,-“Extradition proceedings”, below).
On
22 August 2008 the Tsentralniy district court refused to examine the
applicant’s complaint. The applicant appealed and on 29
September 2008 the Tyumen regional court overruled that decision and
remitted the case for a fresh examination.
On
15 October 2008 the Tsentralniy district court again refused to
examine the applicant’s complaint.
The
applicant lodged a civil claim challenging the validity of the
decision of 13 July 2005. On 25 February 2009 the Tsentralniy
district court rejected the claim, stating that the applicant had
failed to substantiate his allegation that he had been a legal
resident of Russia since 6 February 1992 and that therefore he could
not be a Russian citizen.
On
20 April 2009 this decision was upheld on appeal by the Tyumen
Regional Court.
2. Proceedings in Uzbekistan
On
12 June 1998 the Namangan regional prosecutor’s office of
Uzbekistan (the Namangan prosecutor’s office) opened a criminal
case against the applicant under Article 159 § 4 of
the Uzbek Criminal Code (attempt to violently overthrow the State’s
constitutional order). The applicant was accused of “...
actively participating in the subversive activities of an extremist
movement ... by conducting the holy war “jihad” ... to
create an Islamic state”.
On
29 June 1998 the applicant was charged in absentia and his
name was put on the wanted list.
On
20 October 2003 the Namangan prosecutor’s office brought
additional charges against the applicant under Article 242 of the
Uzbek Criminal Code (organisation of a criminal group and subversive
activities). The applicant was charged in absentia. The
decision also stated that the applicant should be arrested and his
name should remain on the wanted list. The Uzbek courts did not issue
orders for his arrest.
3. Extradition proceedings
On
6 March 2008 the applicant was arrested by officers of the Tyumen
town department of the interior (the GUVD) on unknown grounds.
On
7 March 2008 the applicant was placed in FBU/IZ-72/1 (“the
detention centre”). The decision to arrest the applicant and
detain him in the detention centre was not authorised by a court.
On
27 March 2008 the Tsentralniy district court of Tyumen authorised the
applicant’s detention in view of extradition. The decision did
not provide any time-limits for his detention.
On
7 April 2008 the Uzbek Prosecutor General’s office officially
requested the Russian Prosecutor General’s office to extradite
the applicant to Uzbekistan to be prosecuted as charged by the local
authorities.
On
12 August 2008 the Russian Prosecutor General’s office decided
to extradite the applicant.
On
19 August 2008 the applicant was informed about the extradition
order.
On
25 August 2008 (in the document the date was also stated as 25 August
2006) the applicant appealed against the extradition order to the
Tyumen regional court. He stated, inter alia, that he was
sought by the Uzbek authorities for alleged commission of political
crimes and participation in an extremist religious movement. The
applicant denied the accusations and stated that under Russian law
the alleged religious activity was not prohibited.
On
30 September 2008 the Tyumen regional court rejected the applicant’s
complaint, stating, inter alia, the following:
“... in their extradition request the Uzbek
authorities guarantee that the applicant will be prosecuted only for
the crimes his extradition is requested for and that after the trial
and the completion of his sentence he will be able to freely leave
Uzbekistan and that he won’t be extradited to a third country
without the consent of the Russian Federation.
In addition, the Uzbek authorities guarantee that the
applicant will not be subjected to torture in Uzbekistan and his
constitutional rights will be respected....
... There are no circumstances precluding the
applicant’s extradition to the law-enforcement agencies of
Uzbekistan or any grounds for its suspension ...
... from the case file it follows that the Russian
Ministry of Foreign Affairs and the Federal Security Service possess
no information either concerning the applicant’s persecution in
Uzbekistan on political grounds or any other data which would
preclude his extradition to Uzbekistan ...”
On
5 October 2008 the applicant appealed against this decision to the
Supreme Court of the Russian Federation (the Supreme Court). The
applicant stated, inter alia, that the Tyumen regional court
had ignored his allegations of a risk of ill-treatment in Uzbekistan;
that his detention from 6 March to 27 March 2008 had not been
authorised by a court; that the court order of 27 March 2008
authorising his detention pending extradition had not provided any
time-limits; that the detention had been excessively long and its
extensions had not been authorised by court orders.
On
10 November 2008 the European Court of Human Rights granted the
applicant’s request for the application of interim measures
under Rule 39 of the Rules of Court to suspend his extradition
to Uzbekistan.
On
22 December 2008 the Supreme Court upheld the decision of the Tyumen
regional court and the extradition order. The ruling, inter alia,
referred to the assurances provided by the Uzbek authorities that
“... the Republic of Uzbekistan guarantees that A.M. Isakov
will not be subjected to torture and that his constitutional rights
in Uzbekistan will be protected”. The Supreme Court did not
examine any of the applicant’s complaints concerning the
lawfulness and the length of his detention pending extradition.
4. The applicant’s asylum request
On
5 May 2009 the applicant applied to the Tyumen FMS requesting asylum,
stating that the extradition order against him had been finalised,
that the authorities had declared his Russian citizenship invalid and
that he was being persecuted in Uzbekistan for his religious beliefs.
On
10 September 2009 the Tyumen FMS informed the applicant that on
7 September 2009 they had rejected his asylum request as it had
been motivated by “...fear of lawful prosecution for a
committed crime”.
On
5 October 2009 the applicant appealed against that decision to the
Russia FMS.
On
8 December 2009 the Russia FMS dismissed the applicant’s appeal
and upheld the decision of the Tyumen FMS.
On
21 January 2010 the applicant appealed against the decision of the
Russia FMS to the Basmanniy district court of Moscow. The proceedings
are still pending.
At
the beginning of March 2010 the applicant applied to the Tyumen FMS
with a request for temporary asylum.
On
17 March 2010 the Tyumen FMS granted the applicant temporary asylum
in Russia for one year, stating, inter alia, that the measure
had been applied in view of the examination of the applicant’s
case by the Court.
5. Proceedings concerning to the applicant’s
requests for release
(a) The applicant’s complaints to
the administration of FBU/IZ-72/1
On
23 June 2008 the applicant complained about his detention to the head
of the detention centre and requested to be released. He stated that
his detention was unlawful as it had been neither authorised nor
extended by court orders.
On
23 or 24 June 2008 the head of the detention centre refused to
release the applicant and informed him that under Article 109 of the
Criminal Procedure Code his detention pending extradition “would
not exceed 18 months”.
(b) The applicant’s complaints to
domestic courts
On
14 March 2008 the applicant complained to the Kalininskiy district
court of Tyumen that his detention pending extradition was unlawful
and requested to be released.
On
27 March 2008 the Tsentralniy district court of Tyumen decided to
detain the applicant in view of his extradition to Uzbekistan. In its
decision the court referred to Article 466 § 1 of the
Russian Criminal Procedure Code (“the Criminal Procedure
Code”). The decision did not provide time-limits for the
detention.
On
1 April 2008 the Kalininskiy district court rejected the complaint,
stating that the decision to detain the applicant did not contravene
the regulations concerning detention on remand (Article 108 of the
Criminal Procedure Code) and that it had already been authorised on
27 March 2008 by the Tsentralniy district court. The applicant
appealed against this decision, stating, inter alia, that
between 6 and to 27 March 2008 he had been detained without a court
order.
On
6 May 2008 (in the submitted documents the date was also referred to
as 15 April 2008) the Tyumen regional court dismissed his appeal. The
court did not examine the issue of the lawfulness of the applicant’s
detention between 6 and 27 March 2008; it rejected the appeal for the
same reasons as the ones stated in the decision of 1 April 2008.
On
28 August 2008 the applicant again lodged a complaint with the
Kalininskiy district court challenging the lawfulness of his
detention pending extradition. He pointed out that it had been more
than five months since his arrest, but his detention had not been
extended by domestic courts, in violation of Article 109 of the
Criminal Procedure Code. The applicant further stated that his
complaint to the head of the detention centre of 23 June 2008
had been rejected without a proper legal basis and requested the
court to overrule the decision of the head of the detention centre.
On
4 September 2008 the Kalininskiy district court rejected the
applicant’s complaint, stating that the applicant should have
appealed against the decision of 23 June 2008 through civil
proceedings. On the same date the applicant appealed against the
court’s decision to the Tyumen regional court.
On
30 September 2008 the Tyumen regional court rejected the applicant’s
appeal and upheld the decision of the district court.
On
5 October 2008, in his appeal against the extradition order, the
applicant lodged a detailed complaint with the Supreme Court
challenging the lawfulness and the length of his detention pending
extradition (see paragraph 29 above). In its decision of 22 December
2008 the Supreme Court did not examine the applicant’s
complaints concerning the lawfulness and length of his detention
pending extradition (see paragraph 31 above).
On
18 November 2008 the applicant again complained to the Kalininskiy
district court stating that for more than eight months his detention
pending extradition had not been extended by court orders.
On
20 November 2008 the Kalininskiy district court refused to examine
the applicant’s complaint stating that the applicant had failed
to specify “... whether any criminal proceedings had been
pending against him in Tyumen and by which local authority they had
been initiated...”.
On
27 January 2009 the applicant again complained to the Kalininskiy
district court, stating that for more than ten months his detention
had not been extended by court orders.
On
6 February 2009 the district court left the applicant’s
complaint without examination as he was supposed to use a different
procedure to appeal against the alleged unlawfulness of his
detention.
On
3 August 2009 that decision was upheld by the Tyumen regional court
through the supervisory review procedure.
On
6 September 2009 the maximum eighteen-month detention period laid
down in Article 109 of the Russian Code of Criminal Procedure
expired, but the applicant remained in detention.
On
17 December 2009 the applicant again complained to the Kalininskiy
district court that his detention pending extradition was unlawful
and requested to be released.
On
14 January 2010 the district court refused to order the applicant’s
release and stated that his detention was warranted by the
application of the interim measure by the Court. The applicant
appealed against this decision to the Tyumen regional court.
On
16 February 2010 the Tyumen regional court held that the applicant’s
detention had exceeded the maximum detention period prescribed by the
Code of Criminal Procedure and ordered his release.
On
5 March 2010 the applicant was released from detention.
B. Information submitted by the Government
The
Government disagreed with the statement of facts as presented by the
applicant and, without referring to any specific documents and/or
submitting copies of them, they stated the following.
According
to the Government’s submissions, the Uzbek Prosecutor General’s
office provided the Russian authorities with the following
assurances; “... the applicant will be prosecuted only for the
crimes listed in the extradition request; after the trial and the
completion of sentence he will be able to leave Uzbekistan without
restraint. The applicant will not be deported or extradited to a
third country without the consent of the Russian Federation”.
They
further stated that the sanctions for the crimes with which the
applicant had been charged by the Uzbek authorities did not extend to
the death penalty.
The
Russian Prosecutor General’s office requested that the Russian
Ministry of Foreign Affairs and the Russian Federal Security Service
provide information concerning the applicant’s alleged
persecution in Uzbekistan. According to their replies, there were no
circumstances preventing the applicant’s extradition to
Uzbekistan; no information had been received confirming that the
persecution had been politically motivated.
During
the examination of the applicant’s allegations “... the
Russian courts of the first and the second instances noted that the
Uzbek authorities had guaranteed that the applicant would not be
subjected to unlawful treatment in Uzbekistan and that his
constitutional rights would be respected. In addition, the Russian
courts noted the absence in the case file of any information
confirming the applicant’s persecution by the law enforcement
bodies of Uzbekistan on account of his political beliefs ...”
The
Government further stated that “... the authorities of the
Russian Federation are informing [the Court] that the applicant’s
detention between 6 and 27 March 2008 was not based on a court order.
However, the applicant was arrested on 6 March 2008 and detained in
SIZO-1 in Tyumen as a person who had been put on the international
wanted list ... as a result of the decision to arrest him which had
been taken by the Namangan prosecutor’s office on 29 June 1998.
In accordance with Article 466 of the Russian Criminal Procedure
Code, upon receipt of the extradition request and [after] the
subsequent checks [had been carried out], on 27 March 2008... the
Tsentralniy district court of Tyumen ordered the applicant’s
detention ...”
On
25 March 2008 the Tyumen regional prosecutor’s office requested
the Tsentralniy district court to order the applicant’s
detention in the view of his extradition to Uzbekistan.
On
27 March 2008 the district court granted the request and ordered the
applicant’s detention in accordance with Articles 97-101, 108
and 466 § 1 of the Criminal Procedure Code. The
applicant was informed about his right to appeal against this
decision to the Tyumen regional court. The applicant exercised this
right and appealed against the detention order.
On
15 April 2008 the Tyumen regional court dismissed the applicant’s
appeal and upheld the detention order.
II. RELEVANT INTERNATIONAL AND DOMESTIC LEGAL MATERIALS
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 Criminal Procedure Code
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 court should examine
the complaints within five days from its receipt.
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. The Civil Procedure Code
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
(a) Decision of the Constitutional Court
no. no. 292-O of 15 July 2003
On
15 July 2003 the Constitutional Court issued decision no. 292-O on
the complaint of Mr Khudoyorov about the ex post facto extension
of his “detention during trial” by the Vladimir Regional
Court’s decision. It held as follows:
“Article 255 § 3 of the Code of Criminal
Procedure of the Russian Federation provides that the [trial court]
may... upon the expiry of six months after the case was sent to it,
extend the defendant’s detention for successive periods of up
to three months. It does not contain, however, any provisions
permitting the courts to take a decision extending the defendant’s
detention on remand once the previously authorised time-limit has
expired, in which event the person is detained for a period without a
judicial decision. Nor do other rules of criminal procedure provide
for such a possibility. Moreover, Articles 10 § 2 and 109 §
4 of the Code of Criminal Procedure expressly require the court,
prosecutor, investigator... to immediately release anyone who is
unlawfully held in custody beyond the time-limit established in the
Code. Such is also the requirement of Article 5 §§ 3 and 4
of the European Convention... which is an integral part of the legal
system of the Russian Federation, pursuant to Article 15 § 4 of
the Russian Constitution...”
(b) 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.
(c) 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.
(d) 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.
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 documents concerning the use of diplomatic
assurances and the situation in Uzbekistan
The UN General Assembly resolution 62/148 of 18
December 2007 “Torture and other cruel, inhuman or degrading
treatment or punishment” (UN Doc.:A/RES/62/148) reads as
follows:
“The General Assembly...
12. 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 has stated to the 2nd 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.”
Further
referring to the situation of torture in Uzbekistan, the UN Special
Rapporteur on Torture has stated to the 3rd Session of the UN Human
Rights Council on 18 September 2008:
“741. The Special Rapporteur ... stressed that he
continued to receive serious allegations of torture by Uzbek law
enforcement officials...
743. 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, and any independent
scrutiny of the related proceedings, and that there is no
internationally accepted account of the events, is deeply worrying.
Even more so, given that no independent monitoring of human rights is
currently being conducted.
744. In light of the foregoing, there is little evidence
available, including from the Government that would dispel or
otherwise persuade the Special Rapporteur that the practice of
torture has significantly improved since the visit which took place
in 2002...”
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.’”
United
States Department of State, 2009 Country Reports on Human Rights
Practices - Uzbekistan, 11 March 2010.
“C. Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
Although the constitution and law prohibit such
practices, law enforcement and security officers routinely beat and
otherwise mistreated detainees to obtain confessions or incriminating
information. Torture and abuse were common in prisons, pretrial
facilities, and local police and security service precincts.
Prisoners were subjected to extreme temperatures. Observers reported
several cases of medical abuse, and one known person remained in
forced psychiatric treatment....
Authorities reportedly gave harsher than normal
treatment to individuals suspected of extreme Islamist political
sympathies, notably pretrial detainees who were alleged members of
banned extremist political organizations Hizb ut-Tahrir (HT) or Nur.
Local human rights workers reported that authorities often paid or
otherwise induced common criminals to beat suspected extremists and
others who opposed the government. Two human rights defenders who
were arrested reported beatings in pretrial detention facilities.
There were reports of politically motivated medical
abuse. Victims could request through legal counsel that their cases
be reviewed by an expert medical board. In practice, however, such
bodies generally supported the decisions of law enforcement
authorities....
Prison and Detention Centre Conditions
Prison conditions remained poor and in some cases life
threatening. There continued to be reports of severe abuse,
overcrowding, and shortages of food and medicine. Tuberculosis and
hepatitis were endemic in the prisons, making even short periods of
incarceration potentially life-threatening. Family members frequently
reported that officials stole food and medicine that were intended
for prisoners.
There were reports that authorities did not release
prisoners, especially those convicted of religious extremism, at the
end of their terms. Instead, prison authorities contrived to extend
inmates’ terms by accusing them of additional crimes or
claiming the prisoners represented a continuing danger to society.
These accusations were not subject to judicial review.
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. THE GOVERNMENT’S PRELIMINARY OBJECTION
A. The parties’ submissions
The
Government contended that the application should be declared
inadmissible as incompatible ratione personae. They submitted
that the applicant had not been extradited by the Russian authorities
to Uzbekistan, the measure at issue had not been applied to him, his
extradition had been suspended and therefore he could not claim to be
a victim of a violation of Article 3.
The
applicant contested the objection and submitted that there was a high
risk of his ill-treatment if extradited to Uzbekistan, that the
decision to extradite him had been finalised by the Russian
authorities and that his extradition had been suspended only due to
the application of the interim measures by the Court.
B. The Court’s assessment
The
Court reiterates that an individual may no longer claim to be a
victim of a violation of the Convention where the national
authorities have acknowledged, either expressly or in substance, the
breach of the Convention and afforded redress (see, among many
authorities, Achour v. France (dec.), no. 67335/01, 11
March 2004, where the authorities annulled the expulsion order
against the applicant, and Amuur v. France, 25 June 1996,
§ 36, Reports of Judgments and Decisions 1996 III).
As
to the specific category of cases involving expulsion measures, the
Court has consistently held that an applicant cannot claim to be the
“victim” of a measure which is not enforceable (see
Vijayanathan and Pusparajah v. France, § 46,
27 August 1992, Series A no. 241 B; see also
Pellumbi v. France (dec.), no. 65730/01, 18 January 2005,
and Etanji v. France (dec.), no. 60411/00, 1 March
2005). It has adopted the same stance in cases where execution of the
deportation or extradition order has been stayed indefinitely or
otherwise deprived of legal effect and where any decision by the
authorities to proceed with deportation can be appealed against
before the relevant courts (see Kalantari v. Germany (striking
out), no. 51342/99, §§ 55-56, ECHR 2001 X, and
Mehemi v. France (no. 2), no. 53470/99, § 54,
ECHR 2003 IV; see also Shamayev and Others v. Georgia
and Russia, no. 36378/02, § 355, ECHR 2005 III;
Andrić v. Sweden (dec.), no. 45917/99,
23 February 1999; Benamar and Others v. France
(dec.), no. 42216/98, 14 November 2000; and Djemailji
v. Switzerland (dec.), no. 13531/03, 18 January
2005).
The
present application concerns the applicant’s extradition to
Uzbekistan where, according to him, he would face a serious risk of
ill treatment by the authorities on account of his political and
religious beliefs. The Court observes, firstly, that the decision
concerning the applicant’s extradition was finalised by the
Russian authorities in December 2008; and secondly, that the decision
not to extradite the applicant until further notice from the European
Court was taken by the Russian authorities in November 2008 only
because of the application of Rule 39 of the Rules of Court. Clearly,
the fact that the applicant had not been handed over to the Uzbek
authorities did not constitute any acknowledgment, whether explicit
or implicit, on the part of the Russian authorities that there had
been or would have been a violation of Article 3 or that the
applicant’s extradition order had been deprived of its legal
effect.
In
these circumstances, the Court considers that the applicant may claim
to be a “victim” for the purposes of Article 34 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that his
extradition to Uzbekistan would subject him to a real risk of torture
and ill-treatment prohibited by Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ arguments
The
Government submitted that the allegation of the applicant’s
politically-based persecution had been checked by the Russian courts
when examining his appeals against the extradition order and had been
rejected as unfounded. The Russian courts had relied on the statement
from the Uzbek Prosecutor General’s office that there would be
no risk of ill-treatment for the applicant if he were extradited to
Uzbekistan. With reference to assurances from the Uzbek authorities
the Government argued that the applicant would not be subjected to
ill-treatment or punishment contrary to Article 3 of the Convention.
The
applicant maintained that he had argued before the Russian courts
that there was a real risk of his ill-treatment and political
persecution in Uzbekistan. He had submitted reports on Uzbekistan by
the UN institutions and international NGOs, confirming that
torture was widespread in detention facilities and that this
information had not been properly assessed by the Russian
authorities. He pointed out that the courts had rejected his
arguments without giving any reasons other than the reference to the
assurances given by the Uzbek authorities. Finally, he referred to a
number of cases examined by the Court in which it had been
established that extradition to Uzbekistan of a person sought for
political crimes would constitute a violation of Article 3.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
For
a summary of the relevant general principles emerging from the
Court’s case-law see Mamatkulov and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, §§ 66-70, ECHR 2005 I.
From the materials submitted by the parties it
appears that the applicant was arrested in Russia and subsequently
detained at the request of the Uzbek authorities, who suspected him
of a number of crimes, including an attempt to overthrow the
Constitutional order and membership of an extremist organisation. The
Russian authorities commenced extradition proceedings against him.
Throughout the proceedings the applicant claimed that his extradition
to Uzbekistan would expose him to a danger of ill treatment. He
also lodged an application for asylum, reiterating his fears of
torture and persecution for political motives. He supported his
submissions with reports prepared by UN institutions and
international NGOs describing the ill-treatment of detainees in
Uzbekistan. The Russian authorities rejected his application for
refugee status and ordered his extradition to Uzbekistan.
The
Court’s task is to establish whether there is a real risk of
ill treatment in the event of the applicant’s extradition
to Uzbekistan. Since he has not yet been extradited owing to the
application 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, 15 November 1996, § 86, Reports
1996-V).
As
to the applicant’s allegation that detainees suffer
ill-treatment in Uzbekistan, the Court has recently acknowledged that
this general problem still persists in the country (see for example,
Ismoilov and Others v. Russia, no. 2947/06, §§
120-121, 24 April 2008, and Muminov v. Russia,
no. 42502/06, §§ 93-96, 11 December 2008). No
concrete evidence has been produced to demonstrate any fundamental
improvement in this area in Uzbekistan in the last several years.
Given these circumstances, the Court considers that ill-treatment of
detainees is a pervasive and enduring problem in Uzbekistan.
As
to the applicant’s personal situation, the Court observes that
he was charged with politically motivated crimes. Given that an
arrest warrant was issued in respect of the applicant, it is most
likely that he would be directly placed in custody after his
extradition and would therefore run the serious risk of
ill-treatment.
As
to the Government’s argument that assurances were obtained from
the Uzbek authorities, firstly, the Government did not submit a copy
of any diplomatic assurances indicating that the applicant would not
be subjected to torture or ill-treatment. Secondly, the Court has
already cautioned against reliance on diplomatic assurances against
torture from a State where torture is endemic or persistent (see
Chahal, cited above, and Saadi v. Italy [GC], no.
37201/06, §§ 147-148, ECHR 2008). Given that the practice
of torture in Uzbekistan is described by reputable international
experts as systematic (see paragraphs 91, 92 and 94 above),
the Court would not be persuaded that assurances from the Uzbek
authorities could offer a reliable guarantee against the risk of
ill-treatment.
Accordingly, the applicant’s forcible return to
Uzbekistan would give rise to a violation of Article 3 as he would
face a serious risk of being subjected to torture or inhuman or
degrading treatment there.
III. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 4
OF THE CONVENTION
The
applicant complained under Article 5 § 1 of the Convention that
his detention pending extradition between 6 and 27 March 2008 had
been unlawful as it had not been based on a court order and that the
court order authorising his detention as of 27 March 2008 had not set
any time limits for the duration of the detention, in violation
of the relevant provisions of the domestic law. 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 of the Convention that the
domestic courts had failed to review the lawfulness of his detention
pending extradition. Article 5 § 4 of the Convention 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
The
Government insisted that the applicant’s detention between
6 and 27 March 2008 had been lawful as it had been based on the
decision of the Namangan prosecutor’s office of 29 June 1998.
They submitted that the detention after 27 March 2008 had been
authorised by a domestic court and fully complied with the provisions
of Article 466 of the Criminal Procedure Code and that the
length of the detention had been conditioned by the necessity to
verify the guarantees provided by the Uzbek authorities and to
examine the issue of the applicant’s citizenship. In addition,
they submitted that the duration of the detention had lengthened
owing to the application of the interim measure by the Court.
The
Government contended that the applicant’s complaint concerning
the alleged failure of the domestic courts to review the lawfulness
of his detention was manifestly ill-founded as he had challenged the
lawfulness of his detention by unsuccessfully appealing against the
court order of 27 March 2008 to the Tyumen regional court.
The
applicant disagreed with the Government. He submitted that the
domestic legislation required that his detention with a view to
extradition should have been authorised by a domestic court within 48
hours of the arrest. Referring to the Court’s case-law, he
asserted that Russian laws concerning detention pending extradition
did not comply with the Convention criteria of quality of law; that
the length of his detention had been excessive as he had spent more
than nineteen months in custody whereas the maximum length of
detention under the domestic legislation could not exceed eighteen
months. He further emphasised that the application of the interim
measure by the Court had implied the suspension of his extradition to
Uzbekistan, but it had not obliged the Russian authorities to prolong
his detention. The applicant reiterated that his detention between 6
and 27 March 2008 had been unlawful as it had not been based on a
court order and pointed out that at the time of his arrest the
proceedings concerning his Russian passport had been pending and the
issue of his nationality had not been clarified and that his arrest
and detention in view of extradition had therefore been unlawful from
the outset.
The
applicant further submitted that his complaint of 14 March 2008
challenging the lawfulness of his detention pending extradition had
been examined by the Kalininskiy district court only on 1 April 2008
and rejected solely on the basis that this detention had already been
authorised by the Tsentralniy district court on 27 March 2008.
Therefore, he had been deprived of the opportunity to challenge his
detention between 6 and 14 March 2008 and the domestic
courts had failed to speedily examine his detention. Finally, the
applicant submitted that the domestic courts had refused to recognise
him as a party to any relevant criminal proceedings and left his
complaints without examination (see paragraphs 49-52 above).
B. The Court’s assessment
1. Admissibility
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 § 1 of
the Convention
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.
The
Court observes that the applicant was detained in Russia pursuant to
an arrest warrant issued by a prosecutor’s office in
Uzbekistan. His detention was not confirmed by a Russian court,
contrary to the provisions of Article 466 of the Criminal Procedure
Code, which requires such authorisation unless the detention in the
country seeking extradition has been ordered by a court. Therefore,
the applicant’s detention pending extradition between 6 and 27
March 2008 was not in accordance with a “procedure prescribed
by law” as required by Article 5 § 1.
As
to the Government’s argument that the applicant’s
situation was remedied by the decision of 27 March 2008, the Court
notes that, apart from authorising his detention as of that date, the
domestic court did not order or take steps to ensure his release or
otherwise remedy the violation of his right to liberty and security
for the period between 6 and 27 March 2008.
In
a number of its recent judgments 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 (see, for example, Nasrulloyev
v. Russia, no. 656/06, § 72, 11 October 2007,
Ismoilov and Others, cited above § 142, Muminov,
cited above, § 122, and Khudyakova v. Russia, no.
13476/04, § 73, 8 January 2009).
The
Court upholds the findings made in the above-mentioned cases and
finds that in the absence of clear legal provisions establishing the
procedure for ordering and extending detention with a view to
extradition and setting time-limits for such detention, the
deprivation of liberty to which the applicant was subjected was not
circumscribed by adequate safeguards against arbitrariness. In
particular, the Court observes that the detention order of 27 March
2008 did not set any time-limit for the applicant’s detention.
Under the provisions governing the general terms of detention
(Article 108 of the Criminal Procedure Code), the time-limit for
detention pending investigation was fixed at two months. A judge
could extend that period up to six months. Further extensions could
only be granted by a judge if the person was charged with serious or
particularly serious criminal offences. However, upon the expiry of
the maximum initial detention period of two months (Article 109 §
1 of the Criminal Procedure Code), no extension was granted by a
court in the present case. The applicant has been in detention
pending extradition for over two years. During that period no
requests for extension of his detention have been lodged. Thus, the
national system has failed to protect the applicant from arbitrary
detention, and his detention cannot be considered “lawful”
for the purposes of Article 5 § 1 of the Convention.
The
Court also takes note of the Government’s reference to the
effect that at the time of the applicant’s arrest and his
subsequent detention between 6 March 2008 and 20 April 2009 (see
paragraphs 12-17 above) the authorities had been fully aware of the
fact that the issue of his Russian citizenship had not been finally
resolved and that the Russian legislation excludes, in non-ambiguous
terms, the extradition of Russian nationals (see, mutatis
mutandis, Garabayev v. Russia, no. 38411/02, § 89,
ECHR 2007 VII (extracts)).
In
view of the above, the Court finds that the applicant’s
detention during the period in question was unlawful and arbitrary,
in violation of Article 5 § 1.
(b) Article 5 § 4 of the Convention
The
Government argued that the applicant had made use of the opportunity
to challenge the lawfulness of his detention by lodging an appeal
against the court order of 27 March 2008, which had been rejected by
the Tyumen regional court on 6 May 2008.
The
applicant argued that his detention pending extradition had never
been reviewed by a court, despite his numerous complaints. He had
thus been unable to obtain judicial review of his detention pending
extradition, in violation of Article 5 § 4.
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 De Wilde, Ooms and Versyp v.
Belgium, 18 June 1971, § 76, Series A no. 12). The
remedies must be made available during a person’s detention
with a view to that person obtaining speedy judicial review of the
lawfulness of the detention capable of leading, where appropriate, to
his or her release. 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 Čonka v. Belgium,
no. 51564/99, § 46 and 55, ECHR 2002-I).
The
applicant was detained in Russia pursuant to an arrest warrant issued
by a prosecutor’s office in Uzbekistan. As the Court has found
above, the applicant’s detention was not authorised by a
Russian court, in violation of the relevant domestic provisions. The
Tyumen regional court and subsequently the Supreme Court did not
examine the complaints concerning the lawfulness of the applicant’s
detention pending extradition (see paragraphs 44 and 48 above). Thus,
the lawfulness of the applicant’s detention during the period
in question was not examined by any court, despite his appeals to
that effect.
There has therefore been a violation of Article 5 § 4
of the Convention on account of the absence of judicial review of the
applicant’s detention pending extradition.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant alleged that he had had no effective remedies against the
above violations. He referred to Article 13, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ arguments
The
Government contended that the applicant had had access to domestic
courts in respect of his complaints about the risk of ill-treatment.
He had appealed against the extradition order to the Tyumen regional
court and subsequently to the Supreme Court. They contended that this
remedy was effective and the absence of a desirable outcome of the
applicant’s appeals did not demonstrate its ineffectiveness.
The
applicant reiterated his complaint.
B. The Court’s assessment
1. Admissibility
The
Court further notes that the applicant’s complaint under
Article 13 is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
The Court notes that the scope of a State’s obligation under
Article 13 varies depending on the nature of the applicant’s
complaint under the Convention. Given the irreversible nature of the
harm that might occur if the alleged risk of torture or ill-treatment
materialised and the importance which the Court attaches to Article
3, the notion of an effective remedy under Article 13 requires (i)
independent and rigorous scrutiny of a claim that there are
substantial grounds for believing that there was a real risk of
treatment contrary to Article 3 in the event of the applicant’s
expulsion to the country of destination, and (ii) the provision of an
effective possibility of suspending the enforcement of measures whose
effects are potentially irreversible (or “a remedy with
automatic suspensive effect” as it is phrased in Gebremedhin
[Gaberamadhien] v. France, no. 25389/05, § 66 in
fine, ECHR 2007-V, which concerned an asylum seeker wishing to
enter the territory of France; see also Jabari v. Turkey,
no. 40035/98, § 50, ECHR 2000-VIII; Shamayev
and Others, cited above, § 460; Olaechea Cahuas
v. Spain, no. 24668/03, § 35, ECHR 2006-X;
and Salah Sheekh v. the Netherlands, no. 1948/04,
§ 154, ECHR 2007-I (extracts)).
Judicial
review proceedings constitute, in principle, an effective remedy
within the meaning of Article 13 of the Convention in relation
to complaints in the context of expulsion and extradition, provided
that the courts can effectively review the legality of executive
discretion on substantive and procedural grounds and quash decisions
as appropriate (see Slivenko v. Latvia (dec.) [GC],
no. 48321/99, § 99, ECHR 2002-II). Turning to the
circumstances of the present case, the Court observes that the
decision of the Prosecutor General’s office to extradite the
applicant was upheld on appeal by the Tyumen regional court and the
Supreme Court. In their decisions the domestic courts did not conduct
a detailed examination of the applicant’s allegation of the
risk of ill-treatment in Uzbekistan and only referred in general
terms to the assurances provided by the Uzbek authorities (see
paragraphs 28 and 31 above). Consequently, the courts
failed to rigorously scrutinise the applicant’s claims of the
risk of ill treatment in the event of his extradition to
Uzbekistan.
It should also be noted that the Government did not
refer to any provisions of domestic legislation which could have
afforded redress in the applicant’s situation or had a
suspensive effect on his extradition (see, mutatis mutandis,
Muminov, cited
above, §§ 102-104).
Accordingly,
the Court concludes that in the circumstances of the present case
there has been a violation of Article 13 of the Convention
because the applicant was not afforded an effective and accessible
remedy in relation to his complaint under Article 3 of the
Convention.
As
regards the applicant’s complaints under Article 5 of the
Convention, in the light of the Court’s established case-law
stating that the more specific guarantees of Article 5, being a lex
specialis in relation to Article 13, absorb its requirements
(see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May
2006) and in view of its above findings of violations of Article 5 of
the Convention, the Court considers that no separate issue arises in
respect of Article 13 in connection with Article 5 of the Convention
in the circumstances of the present case.
V. 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 submitted that the amount claimed was excessive and that
if the Court found any violation of the Convention the amount of the
award should be decreased.
The
Court, making an assessment on an equitable basis, awards EUR 20,000
to the applicant in respect of non-pecuniary damage as requested plus
any tax that may be chargeable on that amount.
B. Costs and expenses
Relying
on the fee agreements and the lawyers’ timesheets, the
applicant claimed EUR 3,700 or 3,239 pounds
sterling (GBP) for the work of London-based lawyers Mr W. Bowring and
Ms J. Evans together with administrative and translation costs and
EUR 2,000 for the work of Ms Ryabinina for his representation
before the domestic authorities and the Court.
The
Government submitted that the applicant had not submitted any proof
that the payments had actually been made and that the amounts were
reasonable.
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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,500 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
Declares the application admissible;
Holds that in the event of the extradition order
against the applicant being enforced, there would be a violation of
Article 3 of the Convention;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that there has been a violation of Article
13 in conjunction with Article 3 of the Convention;
Holds that there is no need to examine the
alleged violation of Article 13 in connection with Article 5 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:
(i) EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
5,500 (five thousand five hundred euros) for costs and expenses, to
be converted into pounds sterling at the rate applicable at the date
of settlement and paid into the bank account in London indicated by
the applicant;
(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 8 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
