European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/1183.html
Cite as: [2010] ECHR 1183
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FIRST SECTION
DECISION
Application no.
19293/08
by Dilshod KURBANOV
against Russia
The European Court of Human Rights (First Section), sitting on 24 June 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having regard to the above application lodged on 20 April 2008,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the declaration submitted by the respondent Government on 22 December 2009 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dilshod Kurbanov, is an Uzbekistan national who was born in 1971 and lives in the Republic of Mordovia, Russia. He was represented before the Court by lawyers of EHRAC/Memorial, a non-governmental organisation with offices in Moscow and London. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mr G. Matyushkin.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background events
Until September 2002 the applicant lived in Uzbekistan. According to him, the police often subjected him to harassment because of his religious convictions.
On 29 August 2002 the applicant was arrested for having illegally purchased 600 United States dollars. He was released on the same day on the condition that he would have to come back to the police station the next day. It appears that he failed to do so.
The applicant decided to leave out of fear that the police were going to persecute him for his religious beliefs. In February 2003 he travelled from Uzbekistan to Saransk, the Russian Federation, without experiencing any problems crossing the border. He has not returned to Uzbekistan.
In 2004 the applicant married Ms A.S., a Russian national. The marriage was first concluded under Muslim law and then officially registered in a civil register in May 2005.
Since his arrival in Russia the applicant consistently registered his stay as required by domestic law. He lived with his wife in Saransk, the Republic of Mordovia, until March 2007, when he moved to Uzlovaya village in the Tula region, where he was engaged in market trading and construction work.
On 25 July 2004 Uzbek police issued an arrest warrant for the applicant on account of illegal exchange of foreign currencies. On 21 November 2006 they ordered an interstate search for him.
2. Asylum proceedings
Having become aware of the arrest warrant and the interstate search, in February 2007 the applicant applied to the Civic Assistance Committee, an NGO based in Moscow which provides legal assistance to migrants. On 11 June 2007 he was invited for an interview to the representative centre of the United Nations High Commissioner for Refugees (UNHCR). However, he could not appear for the interview since he was arrested on 30 May 2007.
On 9 June 2007 the applicant applied to the local department of the Federal Migration Service (the FMS) seeking refugee status. On the same date he applied to the UNHCR for international protection.
On 13 December 2007 the UNCHR staff were able to reach the applicant for the first time. After having interviewed him, they sent an application to the FMS stating that the applicant's circumstances corresponded to the criteria established in the Federal Law “On Refugees” and the United Nations Convention Relating to the Status of Refugees.
On 9 April 2008 the Federal Migration Service rejected the applicant's request for refugee status. According to the applicant, he was not informed about the decision and only learned of its existence at the hearing of 15 April 2008 concerning his extradition.
3. Extradition proceedings
On 30 May 2007 the applicant was arrested at his home in Uzlovaya on the basis of the arrest warrant issued by the Uzbekistani authorities.
On 1 June 2007 Uzbekistani police accused the applicant of the following crimes:
- incitement to overthrow the constitutional regime;
- production/storage of extremist materials;
-
membership in an extremist organisation (Articles 159, 244-1 and
244-2 of the Uzbekistan Criminal Code).
On 2 June 2007 the Uzlovskiy Town Court of the Tula Region ordered the applicant's detention with a view to extraditing him to Uzbekistan. The decision did not specify the term of the detention.
On 27 August 2007 the Uzlovskiy Town Court took another decision on the applicant's detention pending the extradition proceedings. Although the decision referred to the expiry of the term of the applicant's detention, no new time-limit was set by the court. The counsel of the applicant's choice was not informed of the hearing. The State-appointed counsel who assisted the applicant failed to file an appeal within the three-days' statutory time-limit.
On 26 December 2007 the Office of the Prosecutor General decided to extradite the applicant to Uzbekistan for his prosecution on charges related to the alleged extremist activities. At the same time it refused to extradite him in respect of charges on illegal exchange of foreign currency, since it was not a criminal offence under Russian law, nor was membership in the “Jihadists” (“Vakhabits”), since they were not included in the list of extremist organisations prohibited in Russia. The applicant was informed about that decision on 22 January 2008.
On 9 January 2008 the applicant's counsel applied to the Novomoskovsk Town Court seeking to lift the preventive measure applied to the applicant. On 15 January 2008 the application was left without examination on account of lack of jurisdiction.
On 28 January 2008 the applicant appealed against the extradition order to the Tula Regional Court. The hearing was adjourned on the ground that on 28 January 2008 the FMS had begun to examine his application for refugee status on the merits.
On 28 February 2008 the applicant's counsel complained to the Centralny District Court of Tula about the applicant's allegedly unlawful detention referring to the courts' failure to set time-limits for his detention.
On 29 February 2008 the applicant's counsel filed another application seeking to change the preventive measure applied to the applicant from detention to the obligation not to leave his place of residence.
On 4 March 2008 the Centralny District Court of Tula dismissed the complaint of 28 February 2008 having found that terms of detention pending extradition fell to be determined within the extradition proceedings. The applicant's counsel lodged an appeal against the decision.
On 19 March 2008 the Centralny District Court of Tula dismissed the application of 29 February 2008 also having stated that terms of detention pending extradition fell to be determined within the extradition proceedings. The applicant's counsel appealed against the decision.
On 26 March 2008 the Tula Regional Court upheld the decision of 4 March 2008.
On 14 April 2008 the Prosecutor applied to the Uzlovskiy Town Court seeking extension of the term of the applicant's detention to twelve months.
On 18 April 2008 the Tula Regional Court dismissed the applicant's appeal against the extradition order lodged on 28 January 2008 despite the fact that appeal proceedings concerning the refusal of his application for refugee status were still pending. The applicant's counsel lodged an appeal before the Supreme Court of Russia.
On 22 April 2008 the Court granted the applicant's request to apply interim measures under Rule 39 of the Rules of Court and indicated to the Government of the Russian Federation that the applicant should not be extradited to Uzbekistan until further notice.
On 23 April 2008 the Tula Regional Court upheld the decision of 19 March 2008.
On 28 April 2008 the Uzlovskiy Town Court dismissed the Prosecutor's application of 14 April 2008 on the ground that the terms of detention pending extradition fall to be determined within the extradition proceedings.
On 28 May 2008 the Supreme Court of Russia set aside the decision of the Tula Regional Court of 18 April 2008, discontinued the extradition proceedings for expiration of prescription periods and ordered the applicant's release.
On 5 June 2008 the applicant was released.
In October 2008 the applicant was granted refugee status in Sweden.
In December 2008 the applicant was granted temporary asylum in Russia.
It appears that in January 2010 the applicant moved to the Rostov Region, for economic reasons, and that his wife has lost contact with him. It also appears that in February 2010 the applicant was briefly detained in the Rostov Region in connection to the administrative offence – failure to comply with a lawful order of a police officer. After his release he returned to Moscow.
B. Relevant domestic law
For a recent summary of the relevant Russian law and practice on issues of extradition of foreign nationals see Khudyakova v. Russia, no. 13476/04, §§ 33-48, 8 January 2009.
COMPLAINT
The applicant complained under Article 5 §§ 1 and 4 of the Convention about the unlawfulness of detention pending extradition and absence of judicial review.
THE LAW
The applicant complained about the lawfulness of his detention and about lack of access to judicial review. He relied on Article 5 §§ 1 and 4 of the Convention which, in so far as relevant, provides 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. ...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...”
1. The parties' submissions
By letter dated 22 December 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“...the Russian authorities acknowledge the violation of the applicant's rights guaranteed by Article 5 §§ 1 and 4 of the Convention.
The authorities are ready to pay the applicant ex gratia a sum of 10,000 EUR as a just satisfaction. The authorities therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as 'any other reason' justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
In a letter of 11 March 2010 the applicant expressed the view that the sum mentioned in the Government's declaration was low. He requested, instead, to be awarded 15,000 euros (EUR). He also argued that the violation in question was of a systemic nature and has been the subject of the Court's findings in the past. Finally, the applicant considered that the Russian authorities should formally exempt him from the provisions of the Inter-Governmental Agreement on mutual application of travel formalities to each other's citizens, concluded in 2000 between Russia and Uzbekistan. He submitted that he could not leave for Sweden where he had been granted the status of a refugee since the Russian border service required him to obtain a permission from the Uzbek authorities to go to a third country.
2. The Court's assessment
The Court notes that both parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached.
Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike a complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); K.K. v. Finland ((striking out), no. 7779/04, 27 November 2007).
The Court has established in a number of cases against Russia its practice concerning complaints about the violation of the rights of persons detained pending extradition in so far as the lawfulness of their detention is concerned and the availability of judicial review of such detention (see, for example, Garabayev v. Russia, no. 38411/02, §§ 92-98, ECHR 2007 VII (extracts); Nasrulloyev v. Russia, no. 656/06, §§ 77 and 88-89, 11 October 2007; Ryabikin v. Russia, no. 8320/04, §§ 131 and 139-140, 19 June 2008; Muminov v. Russia, no. 42502/06, §§ 115 and 122, 11 December 2008; Khudyakova v. Russia, no. 13476/04, § 73, 8 January 2009).
The Court notes that the Government's declaration contains a clear acknowledgment that the principles of lawfulness of detention and of access to judicial review of detention as contained in Article 5 §§ 1 and 4 of the Convention have been violated in respect of the applicant. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is EUR 10,000, constitutes adequate redress for the violations alleged, having regard to all the circumstances of the case and to previous awards made in similar cases.
In light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
In so far as the applicant referred to the modalities of his travel to Sweden, the Court notes that this argument is not connected to the complaint under Article 5 of the Convention brought by the applicant and therefore cannot accept it as a reason to reject the Government's declaration.
Accordingly, it should be struck out of the list.
Furthermore, the Court notes that the Russian authorities have decided not to extradite the applicant to Uzbekistan. It therefore considers it appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration under Article 5 §§ 1 and 4 of the Convention;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Søren Nielsen Cristos Rozakis
Registrar President