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GAFOROV v. RUSSIA - 25404/09 [2010] ECHR 1557 (21 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1557.html
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[2010] ECHR 1557
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FIRST
SECTION
CASE OF GAFOROV v. RUSSIA
(Application
no. 25404/09)
JUDGMENT
STRASBOURG
21 October
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 Gaforov 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,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Section
Deputy Registrar,
Having
deliberated in private on 30 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 25404/09) 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 Tajikistani national, Mr Abdurazok
Abdurakhmonovich Gaforov (“the applicant”), on 15 May
2009.
The
applicant was represented by Ms E. Ryabinina and Mr A. Gaytayev,
lawyers practising in Moscow. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, the
Representative of the Russian Federation at the European Court of
Human Rights.
On
15 May 2009 the President of the First Section decided to apply Rule
39 of the Rules of Court, indicating to the Government that the
applicant should not be extradited to Tajikistan until further
notice, and granted priority treatment to the application under Rule
41 of the Rules of Court.
On
11 September 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 1973 and lived before his arrest in the town of
Khudzhand, Tajikistan. He is currently residing in Moscow.
A. Criminal proceedings against the applicant in
Tajikistan
In
2005 the applicant lost his job at a telephone exchange in Khudzhand
and started earning his living by printing various texts for people
on his computer, including theses and extracts from the Koran.
In
2005 several persons were arrested in Khudzhand on suspicion of
membership of Hizb ut-Tahrir (“HT”), a transnational
Islamic organisation, banned in Russia, Germany and some Central
Asian republics. Subsequently, the applicant learnt that some of the
arrestees had testified before the prosecuting authorities that he
was a member of HT and had printed various materials for it from the
Internet. The applicant denies being a member of HT.
On
16 February 2006 the prosecutor’s office of the Sogdiyskiy
Region of Tajikistan (“the Sogdiyskiy prosecutor’s
office”) instituted criminal proceedings against the applicant
on suspicion of membership of an extremist organisation (Article 307
§ 2 of the Tajikistani Criminal Code (“TCC”)). In
particular, the applicant was suspected of having actively worked
with HT by printing out leaflets and religious literature for that
organisation with a view to their dissemination. The case was
assigned the number 9615.
On
19 February 2006 the Sogdiyskiy prosecutor’s office ordered the
applicant’s placement in custody. Shortly thereafter the
applicant was arrested and placed in the basement of the Ministry of
National Security (MNS). According to the applicant, he was held
there for about three months. He was systematically beaten up and was
tortured at least six times with electricity. He was held in premises
with nothing to rest on, was refused access to the toilet for lengthy
periods of time and received no food.
On
6 May 2006 the prosecutor’s office of the Bobodzhon Gafurovskiy
District (“the Bobodzhon-Gafurovskiy prosecutor’s
office”) opened a further criminal case against the applicant
in connection with his alleged activities within HT. In particular,
the applicant was suspected of: having secretly studied extremist
literature provided by other members of HT; having worked for the
organisation as an IT specialist; having printed out the
organisation’s leaflets and other literature and secretly
distributed it among non-members of the organisation; having paid
membership fees to the organisation and trained another member to
work with the PC. On the same day the applicant was charged with
membership of a criminal organisation banned owing to its extremist
activities (Articles 187 § 2 and 307.2-3), incitement to
religious and other hatred (Article 189 § 3) and public appeals
to overthrow the constitutional order and to engage in extremist
activities (Articles 307 and 307.1). The criminal case was joined
with case no. 9615 and given the number 9431.
According
to the applicant, in May 2006 he and other detainees were taken to a
construction site for a recreation zone for officers of the MNS,
where they were ordered to dig, working in a bending position. When
they tried to straighten up, the guards beat them severely.
On
24 May 2006, fearing further beatings, the applicant escaped.
According to the applicant, his relatives told him
that after his escape law enforcement officials had tortured his
co-accused to find out where he had gone and whether they had helped
him to make good his escape.
On 25 May 2006 the Bobodzhon-Gafurovskiy prosecutor’s
office instituted criminal proceedings against the applicant for
escaping from custody. The decision stated that on 24 May 2006,
“while in custody at a summer cottage [дачный
участок]
belonging to the MNS”, the applicant had fled to an unknown
destination.
On
an unspecified date the criminal case against the applicant in
connection with his alleged activities within HT was transferred for
examination to the Bobodzhon-Gafurovskiy District Court of the
Sogdiyskiy Region
By a decision of 6 June 2006 the Bobodzhon-Gafurovskiy
District Court put the applicant’s name on a wanted list and
suspended the examination of the criminal case against him pending
his arrest.
On
9 June 2006 the Bobodzhon-Gafurovskiy prosecutor’s office
charged the applicant with escape from custody.
B. The applicant’s arrival in Russia
It
appears that the applicant was hiding in Tajikistan until
December 2006, when he moved to Kyrgyzstan. On an unspecified
date in May 2007 the applicant arrived in Russia.
C. Extradition proceedings
On 5 August 2008 the applicant was arrested in Moscow
as a person wanted by the Tajikistani authorities.
On
6 August 2008 the Nagatinskiy deputy prosecutor questioned the
applicant about the circumstances of his arrival in Russia. According
to the applicant’s written explanation [объяснение]
of the same date, in 2006 the Tajikistani authorities had opened a
criminal case against him on suspicion of membership of an extremist
organisation. For about three months in 2006 he had been held in
custody. During that period he had been taken on a daily basis to
work at a construction site, from where he had escaped. In 2007 the
applicant had come to Russia to avoid criminal prosecution and to
earn a living. He had not applied for Russian citizenship, refugee
status or political asylum. The transcript bore the applicant’s
signature. In the applicant’s submission, the explanation was
compiled by the Russian authorities on the basis of material from his
criminal case produced by the Tajikistani law enforcement
authorities.
On
11 September 2008 the Tajikistani Prosecutor General’s Office
(“the TPGO“) sent to the Russian Prosecutor General’s
Office a request for the applicant’s extradition to Tajikistan
in connection with the charges concerning his membership of HT. The
letter stated that the applicant would be tried only on the charges
for which his extradition was being sought, and that he would not be
extradited to a third country without the consent of the Russian
authorities.
On
5 December 2008 the TPGO sent their Russian counterpart an additional
request for the applicant’s extradition on the charge of
escaping from custody.
By a letter of 19 December 2008 the applicant’s
lawyer informed the Russian Prosecutor General’s Office that
the applicant intended to challenge before the courts the refusal to
grant him refugee status (see below) and requested them to take that
fact into account when examining the extradition issue.
1. Decision to extradite the applicant
On 30 December 2008 the deputy Prosecutor General of
the Russian Federation ordered the applicant’s extradition to
Tajikistan. The decision, in its relevant parts, read as follows:
“... [Mr] Gaforov is charged with having actively
participated in 2002-2006 in the activities of a criminal
organisation “Hizb-ut-Tahrir al-Islam”, aimed at the
violent seizure of state power and the overthrow of the
constitutional order and banned on the territory of Tajikistan by a
court decision ...
...
The [applicant’s] actions are punishable under
Russian criminal law and correspond to Article 210 of the Russian
Criminal Code (membership of a criminal organisation); Article 278
(acts aimed at violent overthrowing of the constitutional order);
Article 280 (public appeals in the media to engage in extremist
activities); Article 282 § 2 (c) (incitement to hatred and
degrading treatment via the mass media, carried out by an organised
group); Article 282 § 2 (membership of an extremist
organisation); Article 282 § 2 (membership of an organisation
banned by a court decision because of its extremist activities);
Article 205 § 1 (financing terrorism). The above-mentioned
offences carry penalties of over one year’s imprisonment. The
time-limits for [the applicant’s] prosecution under Russian and
Tajikistani legislation have not expired.
...
[The applicant] is charged with having absconded from
custody ... on 24 May 2006 ...
The [applicant’s] actions are punishable under
Article 313 § 1 of the Russian Criminal Code (escape from
custody of a person detained on remand) and carry a penalty of over
one year’s imprisonment. The time-limits for [the applicant’s]
criminal prosecution under Russian and Tajikistani legislation have
not expired.”
Lastly,
the decision stated that, according to the Federal Migration Service
(“the FMS”), the applicant had not obtained Russian
citizenship, and concluded that there were no other grounds for not
extraditing him to Tajikistan.
On 21 January 2009 the applicant appealed against the
decision of 30 December 2008, alleging that, if extradited, he would
be subjected to torture in breach of Article 3 of the Convention. He
averred, in particular, that he had described in detail the treatment
to which he had been subjected while in custody in Tajikistan and
that the Russian Prosecutor General’s Office had disregarded
those submissions and the relevant materials from international NGOs
showing that the Tajikistani law enforcement authorities
systematically tortured detainees. The applicant also submitted that
the Tajikistani authorities were not able to provide effective
guarantees against the risk of ill-treatment and unfair criminal
proceedings. Lastly, he stated that the decision to extradite him had
been taken despite the fact that his asylum application was pending.
By a letter of 10 February 2009 the TPGO guaranteed to
their Russian counterpart that, if extradited, the applicant would
not be persecuted on political, ethnic, linguistic, racial or
religious grounds and that he would not be subjected to torture or
inhuman or degrading treatment or punishment. The letter also noted
that on 11 March 2008 the Supreme Court of Tajikistan had declared HT
a terrorist organisation and had banned its activities on the
territory of Tajikistan.
2. Hearing before the Moscow City Court
At
a hearing on 16 February 2009 the Moscow City Court (“the City
Court”) examined the applicant’s complaint about the
decision to extradite him to Tajikistan.
According to the hearing transcript, the applicant
submitted to the court that after his arrest in 2006 in Tajikistan he
had been severely beaten and on six occasions tortured with
electricity with a view to extracting a confession that he was a
member of HT. He had been held in the MNS basement for about three
months. During his detention there he had been systematically beaten
and insulted and had been allowed access to the toilet only twice a
day. While still in detention, he had been taken to a construction
site for an MNS recreation zone. There he and other detainees had
worked laying the foundation for a sports centre; they had also been
ordered to mow grass. The applicant and other detainees had been
systematically subjected to beatings. Unable to stand the beatings
and the lack of food, the applicant had escaped. The applicant
further stressed that he feared returning to Tajikistan because after
his escape several MNS officials had threatened his family. They had
allegedly told his family members that if the applicant was caught,
they would not leave him alive. An MNS officer who had beaten the
applicant and who had been on duty on the day of his escape had
allegedly told the applicant’s sister that if he went to jail
because of the applicant, he would kill the applicant’s whole
family, once released.
At the hearing the applicant’s lawyer also
stated that his client’s detention was unlawful because the
authorities had failed to extend it properly, in breach of the Code
of Criminal Procedure (“CCrP”) and the decisions of the
Constitutional Court.
Having
heard the applicant and his lawyer and granted their request to
include in the case file reports from various NGOs and international
organisations on the situation in Tajikistan in relation to torture,
the City Court adjourned the examination of the complaint pending the
outcome of the asylum proceedings.
By
a faxed letter of 25 February 2009 the City Court informed the
Russian Ministry of Foreign Affairs (“the MID”) about the
applicant’s case and his allegations of the risk of torture
were he to be extradited to Tajikistan. The City Court asked the MID
to present their position and to assist the court in obtaining
information from the Tajikistani Ministry of Foreign Affairs on the
issues raised by the applicant.
By
a letter of the same date the City Court asked the Tajikistani
Ministry of Foreign Affairs to submit its position and any relevant
information on the applicant’s allegations concerning the risk
of torture and inhuman and degrading treatment should he be
extradited to Tajikistan, and to verify those allegations via the
relevant State authorities.
On 13 March 2009 the MID replied to the City Court
that Tajikistan had become party to almost all the international
instruments on the protection of human rights and that it had thereby
confirmed its intention to build a democratic and secular state based
on respect for the rule of law. A post of ombudsman had been
created. The MID did not have any information to indicate that “the
applicant’s civil rights would be violated if he was
extradited”. It does not appear that the Tajikistani Ministry
of Foreign Affairs replied to the City Court’s request.
3. The City Court decision of 20 April 2009
On 20 April 2009 the City Court examined the
applicant’s complaint about the decision of 30 December 2008.
The applicant and his lawyer attended the hearing
According to the hearing transcript, the applicant
reiterated before the court his submissions concerning his alleged
torture while in custody in Tajikistan. He submitted that the fact of
his previous torture and the threats to his family members proved
that he ran a risk of being subjected to such treatment again, should
the extradition decision be upheld. The applicant’s lawyer
asked the court to release the applicant, stressing that he had been
detained for a long period of time and that his detention had not
been extended despite clear instructions from the Constitutional
Court in that respect.
The City Court dismissed the applicant’s
complaint. The decision, in so far as relevant, read as follows:
“ [Mr] Gaforov is charged with having, in the
period from August 2002 to February 2006 in the Sogdiyskiy Region of
the Republic of Tajikistan, been an active member of the criminal
organisation “Hizb ut-Tahrir al-Islami”, founded with the
aim of violent seizure of power and overthrowing the constitutional
order, which [organisation] had been banned by a court from the
territory of the Republic of Tajikistan because of its extremist
activities; [the applicant] is also charged with having financed the
above organisation. During the relevant time period, being a member
of that organised group and using the mass media, [the applicant]
disseminated materials containing public appeals for the violent
overthrow of the existing state regime to take control of the
territory of the Republic of Tajikistan and seize power there. [The
applicant] recruited citizens to the extremist organisation with a
view to disrupting the constitutional order of the Republic of
Tajikistan; made public appeals to engage in extremist activities;
disseminated leaflets and other printed materials aimed at incitement
to ethnic, racial, ..., religious hatred, degrading treatment,
propaganda proclaiming the superiority of certain citizens based on
their religious ... convictions, and the founding of an Islamic state
“Caliphate” on the territory of the Republic of
Tajikistan.
The [applicant’s] actions are punishable under
Russian criminal law and correspond to Article 210 § 2 [of the
Russian Criminal Code] (participation in a criminal organisation);
Article 278 (acts aimed at violent overthrow of the constitutional
order); Article 280 § 2 (public appeals via the mass media to
engage in extremist activities); Article 282 § 2 (c) (incitement
to hatred and degrading treatment committed by an organised group
through the mass media); Article 282-1 § 2 (membership of an
extremist organisation); Article 282-2 § 2 (membership of an
organisation banned by a final court decision because of its
extremist activities); and Article 205-1 § 1 (financing
terrorism). The above-mentioned offences carry penalties of over one
year’s imprisonment. The time-limits for [the applicant’s]
prosecution under Russian and Tajikistani law have not expired.
...
Moreover ... [the applicant] is charged with having
absconded from custody ... on 24 May 2006 ...
The above-mentioned actions of [the applicant] are
punishable under Article 313 § 1 of the Russian Criminal Code
(escape from custody of a person detained on remand) and carry a
penalty of over one year’s imprisonment. The time-limits for
[the applicant’s] criminal prosecution under Russian and
Tajikistani law have not expired ...
The decision of the Prosecutor General of the Russian
Federation of 30 December 2008 is lawful and well-founded.
From the information submitted by the Russian FMS
[Federal Migration Service] and its Moscow branch it follows that
[the applicant] had not obtained Russian citizenship or applied for
it in accordance with the law
At the court hearing [the applicant] explained that he
had not applied for Russian citizenship; he had been arrested in
Russia as a person whose name had been put on an international wanted
list...; [he] had not applied for refugee status before his arrest
because he thought that he would not be granted it as a wanted
person; he was not a refugee, he had not been and was not being
persecuted in the territory of the Republic of Tajikistan on
political or any other grounds, except for his criminal prosecution;
he had left his place of residence voluntarily, having fled from
custody – [a fact] which proves that [the applicant] was
deliberately hiding in the territory of the Russian Federation from
the Tajikistani law enforcement bodies.
Thus, there are no grounds stipulated in international
agreements or the legislation of the Russian Federation to prevent
[the applicant’s] extradition ...
...
The court has examined and dismissed [the applicant’s]
arguments, supported by his lawyer ... with reference to the opinion
[заключение]
of 13 March 2009 by specialist Ms Ryabinina and materials confirming,
in their opinion, that he should not be extradited to Tajikistan on
account of his possible persecution there. However, having applied to
the FMS after his arrest pursuant to an international warrant, [the
applicant] himself had explained that he feared extradition to
Tajikistan because of the possibility of his conviction leading to a
long term of imprisonment.
Hence, the court considers that there is no well-founded
fear of [the applicant] becoming a victim of persecution in
Tajikistan under Article 1 § 1-1 of the Refugees Act.
Consequently, he does not satisfy the criteria to be granted refugee
status because only 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 to avail himself of the protection of that
country as a result of such events, can be recognised as a refugee.
Furthermore, the receiving country furnished an
assurance that [the applicant] would be prosecuted only for the
crimes with which he had been charged. Moreover, the Republic of
Tajikistan is party to almost all international legal instruments on
human rights, and has thereby reaffirmed its intention to build a
secular democratic state based on the rule of law; a post of
Ombudsman had been created there.
The issue of whether [the applicant] is guilty of the
crimes in respect of which [the Tajikistani authorities] have
requested his extradition can only be assessed by a court in the
requesting country examining the merits of the criminal case against
him. Hence, [the applicant’s] and his lawyer’s arguments
that he is not guilty and that the charges against him are fabricated
are not subject to this court’s examination.”
The City Court decision was silent on the issue of the
applicant’s detention.
On 21 April 2009 the applicant appealed to the Supreme
Court of the Russian Federation (“the Supreme Court”),
submitting that the City Court had failed to take into account his
arguments, supported by materials from various NGOs, that he would be
subjected to torture in the event of extradition. He also averred
that the City Court had disregarded that at the time of its
examination of the case appeal proceedings against the FMS decision
to refuse him refugee status had been pending.
On 8 June 2009 the applicant lodged an additional
appeal statement with the Supreme Court submitting that the City
Court had failed to assess Ms Ryabinina’s opinion and materials
from various NGOs attesting to the existence of systematic problems
with torture in Tajikistan and had limited its assessment to the MID
letter stating merely that “there was no indication that [the
applicant’s] civil rights would be violated in the event of his
extradition”. He stressed that the City Court had confused the
risk of torture with the risk of criminal prosecution, although the
applicant’s position in that respect was unequivocal: he feared
his extradition to Tajikistan because he had already been subjected
to torture there and he had fled to Russia for that reason. The City
Court’s conclusion that he had voluntarily left Tajikistan was
at odds with the fact that the applicant had fled from custody.
Lastly, the City Court had exceeded its jurisdiction in finding that
the applicant did not satisfy the criteria to be granted refugee
status, as it was for the civil courts to rule on that matter.
4. The Supreme Court decision of 8 June 2009
On 8 June 2009 the Supreme Court of the Russian
Federation (“the Supreme Court”) examined the applicant’s
appeal against the City Court decision. The applicant’s lawyer
was present at the hearing, but the applicant did not attend. At the
hearing the applicant’s lawyer filed a written request for
release with the Supreme Court. He submitted that his detention in
the absence of a judicial decision had exceeded the two-month limit
set in Article 109 of the CCrP. In that connection he referred to
Article 466 of the CCrP, the Constitutional Court’s decisions
nos. 101-0 and 333-O-P (see below) and the fact that the latest court
decision to place him in custody had been taken on 16 September 2008.
He also complained that the Babushkinskiy District Court and the
Moscow City Court had refused to examine his complaints about his
detention.
By a decision of the same date the Supreme Court
dismissed the complaint, reproducing verbatim the text of the
decision of 20 April 2009. The Supreme Court decision was silent on
the matter of the applicant’s detention.
D. Asylum proceedings
On 23 October 2008 the applicant filed an application
for asylum with the Moscow Department of the Federal Migration
Service (“the Moscow FMS”), stating that he could not
return to Tajikistan, where he had been subjected to ill-treatment.
In particular, he submitted that in February 2006 he had been
arrested by law enforcement officials who had tortured him with
electricity and severely beaten him. Two days later he had been
transferred to the MNS, where he had been kept in a damp basement
together with eight other persons. He had not been fed and had been
allowed access to the toilet only twice a day. The applicant and
other detainees were systematically beaten up with a view to
extracting confessions about their involvement with HT, to which they
had finally had to confess because of the beatings. The MNS officers
had forced the applicant and his fellow detainees to work on their
construction site and had beaten them if they did not work properly.
In May 2006, while at a construction site, he had escaped because he
could no longer endure the violence.
In an interview with an official of the Moscow FMS on
28 November 2008, the applicant reiterated and confirmed his
earlier submissions
On 15 December 2008 the Moscow FMS refused to grant
the applicant asylum, finding that the reason for his request was his
fear of being sentenced to a lengthy term of imprisonment if
extradited. It further noted that when questioned by FMS officials,
the applicant submitted that he had been unlawfully arrested by the
Tajikistani law enforcement officials and that he had fled from
custody because he had been severely ill-treated. The FMS concluded
that the grounds referred to by the applicant did not constitute
well-founded fear of being persecuted in his home country.
On 13 January 2009 the applicant appealed to the
Zamoskvoretskiy District Court of Moscow (“the Zamoskvoretskiy
District Court”) against the decision of 15 December 2008,
submitting that the Tajik authorities were persecuting him on
religious grounds in connection with his alleged membership of HT, a
banned religious organisation. Referring to Article 3 of the
Convention, he stressed that the migration authority had disregarded
his consistent and convincing submissions in respect of the
ill-treatment to which he had been subjected. Knowing that the Code
of Civil Procedure made no provision for a detainee’s
transportation to court hearings concerning their civil claims, the
applicant did not request the Zamoskvoretskiy District Court to
secure his presence.
On 7 April 2009 the Zamoskvoretskiy District Court
examined the applicant’s complaint in the presence of his
lawyer and dismissed it. The applicant was not brought to the
hearing. The court found that in examining the applicant’s
application the Moscow FMS had obtained from the Russian Prosecutor
General’s Office and their Tajikistani counterpart materials
concerning his criminal prosecution in Tajikistan. Those State bodies
had not confirmed that the Tajikistani authorities were persecuting
Tajikistani nationals because of their religious beliefs, or
torturing them or treating them inhumanely in connection with
criminal proceedings against them. Although the applicant had arrived
in Russia in May 2007, he had applied for asylum only after his
arrest with a view to extradition. In sum, the applicant had failed
to adduce convincing reasons showing that he had well-founded fears
of being persecuted in Tajikistan on political, racial, religious,
national or ethnic grounds or because of his membership of a
particular social group, and had only applied to the migration
authorities because of his criminal prosecution.
On 20 April 2009 the applicant appealed against the
decision of 7 April 2009, submitting that the Zamoskvoretskiy
District Court had disregarded his detailed and consistent
submissions concerning the ill treatment to which he had been
subjected while in custody in Tajikistan and his persecution on
religious grounds. He also averred that the district court had
disregarded a number of reports of UN bodies and NGOs attesting to
the widespread practice of ill-treatment of detainees by law
enforcement authorities in Tajikistan.
On
25 June 2009 the Moscow City Court set aside the decision of 7 April
2009 and remitted the case at first instance for fresh examination.
On 10 September 2009 the Zamoskvoretstkiy District
Court upheld the migration authority’s refusal to grant the
applicant asylum, reproducing almost verbatim the reasoning of its
decision of 7 April 2009. The court also noted that as the applicant
only feared criminal prosecution and thus did not qualify for asylum
it would not attach any weight to his submissions concerning the risk
of ill-treatment in Tajikistan in the event of extradition and the
general human rights situation in that country.
The applicant appealed against the decision. Referring
to reports of various NGOs, he stressed that the problem of
ill-treatment of detainees persisted in Tajikistan and that he feared
his extradition not only because of the general situation in the
country but also because of his own experience of ill-treatment at
the hands of the Tajikistani State officials, who were persecuting
him on religious grounds. However, the District Court had refused to
take that information into account and limited its assessment to the
information provided by the Russian State authorities.
On
26 January 2010 officers of the United Nations High Commissioner for
Refugees (“the UNHCR”) interviewed the applicant in the
remand facility in connection with his application for international
protection.
On 28 January 2010 the City Court upheld the decision
of 10 September 2009 in the presence of the applicant’s
lawyer. The City Court decision, in its relevant part, stated:
“On 28 November 2008 [Mr] Gaforov, a national of
the Republic of Tajikistan, held in IZ-77/4 in Moscow, applied for
refugee status.
In his questionnaire [анкета]
and report form [опросный
лист]
[the applicant] stated that there was a real risk of his persecution
by law enforcement officials who had arrested him in 2006 in
Khudzhand and charged him with being a member of HT. Moreover, [the
applicant] stated that he feared criminal prosecution and had been
subjected to ill-treatment while in detention [in Tajikistan].
In arriving at its conclusions the [Moscow FMS] examined
information submitted by the Russian Prosecutor General’s
Office and concerning [the applicant’s] prosecution by the
Tajikistani prosecutor’s office on various charges under
Articles of the Tajikistani Criminal Code.
There is no indication of [the applicant’s]
persecution on religious grounds in the Bobodzhon-Gafurovskiy
prosecutor’s office’s decision of 6 May 2006 to charge
the applicant [with his activities within HT].
From the impugned decision [of the Moscow FMS] it
transpires that in arriving at its conclusions the authority took
into account information from the [Russian] Prosecutor General’s
Office and their Tajikistani counterpart.
In examining [the applicant’s] complaint, the
[District] court correctly established that the applicant had not
referred to any humanitarian reasons to be granted temporary asylum
in the Russian Federation, such as precise details of his personal
persecution by the Tajikistani authorities, [or stated] that in the
event of his return there existed a real risk to his personal safety
from the [Tajikistani] authorities. He had not justified his
application for temporary asylum by his state of health or the need
for medical assistance. He also failed to submit any evidence that
there were obstacles to his returning to Tajikistan.”
On
8 February 2010 the applicant applied to the Moscow FMS for temporary
asylum. The outcome of those proceedings is unclear.
On 10 March 2010 the UNHCR office informed the
applicant’s lawyer that it had examined her client’s
application for international protection. The examination established
that the applicant was “outside his country of nationality due
to well-founded fear of being persecuted by the authorities of his
country for reasons of imputed political opinions”, that he was
“unable to return to the Republic of Tajikistan” and thus
“eligible for international protection under the UNHCR
mandate”.
E. Proceedings concerning the applicant’s
detention
1. First detention order
On 7 August 2008 the Nagatinskiy District Court of
Moscow ordered the applicant’s placement in custody pending
extradition, with reference to Articles 97, 99, 101 and 108 of the
Russian CCrP and Article 61 of the Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters
(“the Minsk Convention” – see the Relevant Domestic
Law below). The court stated, in particular, that the applicant was
charged under the Tajikistani Criminal Code with a crime carrying a
sentence of imprisonment, that he had fled from custody, did not have
a permanent place of residence or registration in Russia and might,
consequently, again abscond to avoid prosecution. It further stated
that the need to place the applicant in custody was also justified by
his eventual extradition to Tajikistan, and that the related
proceedings had been instituted following the Tajik authorities’
petition under Article 61 of the Minsk Convention. The decision did
not specify the term of the applicant’s detention and stated
that it was open to appeal before the Moscow City Court within three
days after its delivery. There is no indication that the applicant
challenged the decision on appeal.
2. Second detention order
On 16 September 2008, the Simonovskiy District Court
of Moscow ordered the applicant’s placement in custody pending
extradition, referring to Article 466 § 1 of the CCrP and
Article 60 of the Minsk Convention. The court stated that the Russian
Prosecutor General’s Office was verifying the materials in
respect of the applicant’s extradition and that no grounds
preventing it had been established. On 7 August 2008 the Nagatinskiy
District Court had ordered the applicant’s placement in custody
pending receipt of the formal request for his extradition under
Article 61 of the Minsk Convention. By the time of the examination of
the case by the Simonovskiy District Court, that request had been
received. The applicant was charged with having escaped from custody
which, under the Tajikistani Criminal Code, was punishable with over
two years’ imprisonment. Furthermore, the applicant had
absconded, he did not have a permanent place of residence or a
permanent job in Russia and his name was on the international list of
wanted persons. Hence, the applicant’s requests for application
of a non-custodial preventive measure were unfounded and he was to be
remanded in custody. The decision did not set a time-limit for the
applicant’s detention and stated that it was open to appeal
before the Moscow City Court within three days after its delivery.
There is no indication that the applicant challenged the decision on
appeal.
3. The applicant’s complaints about detention
On 21 January 2009 the applicant complained to the
Babushkinsky District Court of Moscow that his detention in the
absence of a judicial decision had exceeded the two-month term set in
Article 109 of the CCrP. He referred to Article 466 of the CCrP,
Constitutional Court decisions nos. 101-0 and 333-O-P (see the
section on Relevant Domestic Law below) and the fact that the latest
court decision to place him in custody had been taken on 16 September
2008. He requested his immediate release.
On 27 January 2009 the Babushkinskiy District Court
disallowed the applicant’s complaint, finding that he had
failed to comply with the formal requirements for lodging a civil
claim, laid down in the Code of Civil Procedure. The applicant was
invited to rectify the shortcomings and informed of his right to
appeal against the decision.
On
14 September 2009 the applicant complained about his detention to the
Nagatinskiy District Court. In particular, he averred that the latest
detention order authorising his placement in custody was dated
16 September 2008 and that neither that decision nor the
previous one dated 7 August 2008 specified the term of his detention.
In any event, since 16 September 2008 the Nagatinskiy
prosecutor’s office had not requested the courts to extend his
detention pursuant to Article 109, so it had become unlawful after
the expiry of the two initially authorised two-month terms; that is
to say that out of the thirteen months the applicant had spent in
custody, nine months of that detention had been unlawful.
Furthermore, the Babushkinskiy District Court had refused to examine
the applicant’s complaint about detention and the City Court
had likewise disregarded his request for release submitted at the
hearing of 20 April 2009. Relying on Articles 5 §§1
and 4 of the Convention, the Court’s case-law, Articles 109 and
110 of the CCrP and the practice of the Constitutional Court, the
applicant insisted that his detention had been unlawful, that he had
not been provided with an effective remedy to complain about it and
that the applicable legislation did not meet the requisite standards
of quality of the law. Lastly, he argued that the extradition check
against him had been finalised on 30 December 2008 and that after
that date no action was taken with a view to extraditing him.
On
21 September 2009 the Nagatinskiy District Court refused to examine
the applicant’s complaint. It held firstly that the applicant
had failed to appeal against the decision of 7 August 2008 within the
required time-limits. As to the alleged inaction of the prosecutor’s
office, it was open to the applicant to complain about it under
Article 125 of the CCrP to the Simonovskiy District Court, which had
territorial jurisdiction over the matter.
On
21 October 2009 the applicant appealed against that decision to the
Moscow City Court.
On
the same date the applicant complained to the Simonovskiy District
Court, reiterating his submissions made in the complaint of
14 September 2009.
By a letter of 29 October 2009 the Simonovskiy
District Court returned the applicant’s complaint of 21 October
2009, stating that in the Russian Federation criminal proceedings
were conducted in accordance with the provisions of the CCrP and that
the applicant had failed to refer to any provisions of the CCrP in
his submissions.
On
8 December 2009 the applicant complained to the Prosecutor General’s
Office about his detention, averring that he had been held in custody
for sixteen months and that twelve months of that detention had been
unlawful because the prosecutor’s office had failed to request
the courts to extend it. He also stressed that the decision to
extradite him had become final in June 2009, after which date no
action had been taken with a view to extraditing him.
On
21 December 2009 the Moscow City Court dismissed the applicant’s
appeal against the decision of 21 September 2009. It held, in
particular, that it was open to the applicant to complain about his
detention to a court having territorial jurisdiction or to an appeal
court.
On 30 December 2009 the Prosecutor General’s
Office replied to the applicant that his detention had been
authorised first by the Nagatinskiy and then by the Simonovskiy
District Court, pursuant to Article 466 § 1 of the CCrP.
According to Article 109 of the CCrP, the maximum term of detention
of persons charged with particularly serious crimes was up to
eighteen months. The Prosecutor General’s Office had decided on
the applicant’s extradition on 30 December 2008, that is within
the required time-limit. The applicant’s ensuing detention was
prompted by his appeals to the courts against the extradition order
and by the decision of the European Court of Human Rights to apply
Rule 39 of the Rules of Court. As to the Supreme Court Ruling of 29
October 2009 (see below), it was applicable only to persons in
respect of whom the Russian authorities were carrying out an
extradition check, and not to those in respect of whom the Prosecutor
General’s Office had already issued an extradition order. In
the applicant’s case the Prosecutor General’s Office had
decided on 30 December 2008 to extradite him and that decision
was to be enforced.
4. Letter of the ombudsman
On 22 January 2010 the Ombudsman to the President of
the Russian Federation (“the ombudsman”) wrote to the
Prosecutor General of the Russian Federation stating, in particular,
that the European Court of Human Rights had recently found a breach
of Article 5 of the Convention on account of the unsatisfying quality
of the law in several cases involving persons detained pending
extradition. Yet the practice continued, in breach of the applicable
Russian legislation, of keeping in custody foreign nationals whose
detention on remand had not been extended. The ombudsman opined that
the problem lay in the domestic authorities’ inconsistent
practice in applying the relevant legislation, and had persisted even
after the Constitutional Court’s Ruling no. 101-O and the
Supreme Court’s Ruling no. 22 (see Relevant Domestic
Law below). The ombudsman referred to the Yuldashev, Isakov,
Khaydarov and Sultanov cases, which were pending before the Court, in
which the term of the applicants’ detention pending extradition
had exceeded the eighteen-month maximum term laid down in Article 109
of the CCrP.
The ombudsman further stressed that on 5 February 2010
the eighteen-month maximum detention term was about to expire for the
applicant in the present case and that the domestic courts had twice
authorised his remand in custody without setting any time-limit for
his detention. He also stated that the Government were justifying the
detention on remand of the applicants in the above-mentioned cases by
the fact that the Strasbourg Court had indicated to them under Rule
39 to suspend their extradition. However, nothing in the Strasbourg
Court’s Rules provided for the respondent State’s
obligation to hold detainees whose extradition was suspended in
custody in breach of the Russian legislation. Lastly, the ombudsman
asked the Prosecutor General to carefully examine the situation of
the persons mentioned in his letter, in particular with regard to the
extension of their detention for an unlimited period of time, and to
further improvement of the legislation and its correct application in
order to prevent possible violations of the Convention.
5. Reply of the Prosecutor General’s Office
By a letter of 8 February 2010 the Deputy Prosecutor
General of the Russian Federation replied to the ombudsman. The
letter, in so far as relevant, read as follows:
“...
...the decisions to extradite the applicants in the
cases mentioned [in your letter] were taken within the
time-limits established by Article 109 of the CCrP, the lawfulness of
those decisions was verified by the courts and those decisions are
bound to be executed. To release the above-mentioned persons from
custody would entail breach by the Russian Federation of its
international obligations concerning extradition.
The possibility to apply the provisions of the CCrP in
respect of the time-limits for the detention of persons held in
custody pending extradition was first mentioned in Constitutional
Court Ruling no. 101-O ... In its Ruling... no. 158-O
the Constitutional Court stated that in its previous Ruling no. 101-O
it had not, and could not have, established what particular
provisions of the CCrP were to regulate the procedures and
time-limits for the detention of persons in custody pending
extradition ... as it had no jurisdiction in the matter ...
The Supreme Court, in its replies of 9 August and 6
October 2008 to the Prosecutor General’s requests for
clarification, explained that in deciding on procedures and
time-limits for the detention of persons detained pending
extradition, the authorities were to apply the provisions of the
CCrP. However, this issue had never been examined by the Plenary of
the Supreme Court and the practice of the domestic authorities in
this respect had not been studied or summarised.
Until 29 October 2009 there was no uniform judicial
practice on this category of cases in different regions of the
Russian Federation. Some judges requested that the time-limits for
detention be extended, others refused to extend those time-limits,
considering it unnecessary.
On 26 November 2009, following the Supreme Court’s
Ruling no. 22 ..., the Prosecutor General’s office sent
out to prosecutors in all regions of the Russian Federation an
information letter explaining the order on extending the time-limits
for the detention of persons in respect of whom the extradition check
was pending and the decision to extradite was not yet final...
Further time-limits for the detention of a person pending extradition
are regulated by Article 467 of the CCrP.
The lengthy detention of Mr Yuldashev, Mr Isakov, Mr
Khaydarov, Mr Sultanov and [the applicant] Mr A.Gaforov ... is
at the present moment a consequence of the European Court’s
application of Rule 39 of the Rules of Court pending the examination
of their cases [by the Strasbourg Court].”
F. The applicant’s release
On
23 April 2010 the Babushkinskiy district prosecutor ordered the
applicant’s release from custody, finding that the time-limits
for his detention under Article 109 of the CCrP had expired and that
there was no reason to extend his detention.
On
the same date the Babushkinskiy District Court dismissed the
prosecutor’s request to confine the applicant to the detention
centre for foreign nationals [центр
содержания
иностранных
граждан
ГУВД
по г. Москве].
The court held that only persons charged with administrative offences
could be held in the above-mentioned centre and that, in any event,
the maximum time-limits for the applicant’s detention had
expired pursuant to Articles 107-109 of the CCrP.
It
appears that the applicant was released shortly thereafter.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure (CCrP)
Chapter 13 of the CCrP governs the application of
preventive measures. Preventive measures may be applied to a suspect
or a person charged with an offence where it is probable that the
person in question might abscond, continue to engage in criminal
activities, threaten witnesses or hinder the investigation (Article
97). When deciding on the necessity to apply a preventive measure, it
is necessary to take into account the gravity of the charges and the
various personal details of the person concerned (Article 99).
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 lodged by a
prosecutor (or an investigator or inquirer with a prosecutor’s
prior approval) (Article 108 § 3). The request 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, further to a request lodged by a prosecutor (or an
investigator or inquirer with a prosecutor’s prior approval)
(Article 109 § 2). Further extensions up to twelve months may be
granted at the request of an investigator, with the approval of a
prosecutor of the Russian Federation, only if the person is charged
with a serious or particularly serious criminal offence or offences
(Article 109 § 3).
Chapter 16 of the CCrP lays down the procedure by
which acts or decisions of a court or public official 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).
Under Article 466 § 1, upon receipt of a request
for extradition not accompanied by an arrest warrant issued by a
foreign court, the Prosecutor General or his or her deputy is to
decide on the preventive measure in respect of the person whose
extradition is sought “in accordance with the established
procedure”. If a foreign court’s decision to place a
person in custody is appended to the extradition request, a
prosecutor is entitled to place that person under house arrest or
remand him or her in custody without the Russian courts validating
his decision (Article 466 § 2).
B. Custody Act
The Custody Act (Law no. 103-FZ of 15 July 1995)
lays down the procedure and conditions for the detention of persons
arrested under the CCrP on suspicion of criminal offences; it also
applies to persons suspected or accused of criminal offences who are
remanded in custody (Article 1). Persons suspected or accused of
criminal offences have a right to lodge complaints with a court or
another authority concerning the lawfulness and reasonableness of
their detention (Article 17(7)).
C. Decisions of the Constitutional Court
1. Decision of the Constitutional Court no. 101-O of 4
April 2006
The Constitutional Court examined the compatibility of
Article 466 § 1 of the CCrP with the Russian Constitution and
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
CCrP on preventive measures, were fully applicable to detention with
a view to extradition. Accordingly, Article 466 of the CCrP did not
allow the authorities to apply a custodial measure without complying
with the procedure established in the CCrP, or in excess of the
time-limits fixed therein.
2. Decision 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 provisions of the criminal law
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.
3. Decision no. 333-O-P of 1 March 2007
In this decision the Constitutional Court reiterated
that Article 466 of the CCrP 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.
D. Decisions of the Supreme Court
1. Decision of 14 February 2003
By
a decision (решение)
of 14 February 2003 the Supreme Court of the Russian Federation
granted the Prosecutor General’s request and classified a
number of international and regional organisations as terrorist
organisations, including HT (also known as the Party of Islamist
Liberation), and prohibited their activities on Russian soil. It held
that HT aimed to overthrow non-Islamist governments and to establish
“Islamist governance on an international scale by reviving a
Worldwide Islamist Caliphate”, in the first place in the
regions with predominantly Muslim populations, including Russia and
other members of the Commonwealth of Independent States.
2. Directive Decision no. 1 of 10 February 2009
By a Directive Decision No.1 adopted by the Plenary
Session of the Supreme Court of the Russian Federation on 10 February
2009, (“Directive Decision of 10 February 2009”) the
Plenary Session issued several instructions to the courts on the
application of Article 125 of the CCrP. The Plenary reiterated that
any party to criminal proceedings or other person whose rights and
freedoms were affected by actions or the inaction of the
investigating or prosecuting authorities in criminal proceedings
could invoke Article 125 of the CCrP to challenge a refusal to
institute criminal proceedings or a decision to terminate them. The
Plenary stated that whilst the bulk of decisions amenable to judicial
review under Article 125 also included decisions to institute
criminal proceedings, refusals to admit a defence counsel or to grant
victim status, a person could not rely on Article 125 to
challenge a court’s decision to apply bail or house arrest or
to remand a person in custody. It was further stressed that in
declaring a specific action or inaction of a law enforcement
authority unlawful or unjustified, a judge was not entitled to annul
the impugned decision or to oblige the official responsible to annul
it but could only request him or her to rectify the indicated
shortcomings. Should the authority concerned fail to comply with the
court’s instructions, an interested party could complain to a
court about the authority’s inaction and the latter body could
issue a special decision [частное
определение],
drawing the authority’s attention to the situation. Lastly, the
decision stated that a prosecutor’s decision to place a person
under house arrest or to remand him or her in custody with a view to
extradition could be appealed against to a court under Article 125 of
the CCrP.
3. Directive Decision no. 22 of 29 October 2009
In a Directive Decision No. 22, adopted by the
Plenary Session of the Supreme Court of the Russian Federation on 29
October 2009 (“Directive Decision of 29 October 2009”),
it was stated that, pursuant to Article 466 § 1 of the CCrP,
only a court could order placement in custody of a person in respect
of whom an extradition check was pending and the authorities of the
country requesting extradition had not submitted a court decision to
place him or her in custody. The judicial authorisation of placement
in custody in that situation was to be carried out in accordance with
Article 108 of the CCrP and following a prosecutor’s petition
to place that person in custody. In deciding to remand a person in
custody a court was to examine if there existed factual and legal
grounds for applying the preventive measure. If the extradition
request was accompanied by a detention order of a foreign court, a
prosecutor was entitled to remand the person in custody without a
Russian court’s authorisation (Article 466 § 2 of the
CCrP) for a period not exceeding two months, and the prosecutor’s
decision could be challenged in the courts under Article 125 of the
CCrP. In extending a person’s detention with a view to
extradition a court was to apply Article 109 of the CCrP.
III. INTERNATIONAL INSTRUMENTS AND OTHER DOCUMENTS
A. Council of Europe
Recommendation
No. R (98) 13 of the Council of Europe Committee of Ministers to
Member States on the right of rejected asylum seekers to an effective
remedy against decisions on expulsion in the context of Article 3 of
the European Convention on Human Rights reads as follows:
“The Committee of Ministers...
Without prejudice to the exercise of any right of
rejected asylum seekers to appeal against a negative decision on
their asylum request, as recommended, among others, in Council of
Europe Recommendation No. R (81) 16 of the Committee of Ministers,
Recommends that governments of member states, while
applying their own procedural rules, ensure that the following
guarantees are complied with in their legislation or practice:
1. An effective remedy before a national
authority should be provided for any asylum seeker whose request for
refugee status is rejected and who is subject to expulsion to a
country about which that person presents an arguable claim that he or
she would be subjected to torture or inhuman or degrading treatment
or punishment.
2. In applying paragraph 1 of this
recommendation, a remedy before a national authority is considered
effective when: ...
2.2. that authority has competence both to
decide on the existence of the conditions provided for by Article 3
of the Convention and to grant appropriate relief; ...
2.4. the execution of the expulsion order is
suspended until a decision under 2.2 is taken.”
The
Council of Europe Commissioner for Human Rights issued a
Recommendation (CommDH(2001)19) on 19 September 2001 concerning the
rights of aliens wishing to enter a Council of Europe Member State
and the enforcement of expulsion orders, part of which reads as
follows:
“11. It is essential that the right of
judicial remedy within the meaning of Article 13 of the ECHR be not
only guaranteed in law but also granted in practice when a person
alleges that the competent authorities have contravened or are likely
to contravene a right guaranteed by the ECHR. The right of
effective remedy must be guaranteed to anyone wishing to challenge a
refoulement or expulsion order. It must be capable of suspending
enforcement of an expulsion order, at least where contravention of
Articles 2 or 3 of the ECHR is alleged.”
For
other relevant documents, see the Court’s judgment in the case
of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§
36-38, ECHR 2007 V.
B. The CIS Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters (the Minsk
Convention)
When
performing actions requested under the Minsk Convention, to which
Russia and Tajikistan are parties, 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).
A person detained pending extradition pursuant to
Article 61 § 1 of the Minsk Convention must be released if the
requesting country fails to submit an official request for
extradition with all requisite supporting documents within forty days
from the date of placement in custody (Article 62 § 1).
C. Reports on Tajikistan
The “Conclusions and Recommendations:
Tajikistan”, issued by the UN Committee against Torture on 7
December 2006 (CAT/C/TJK/CO/1), pointed out the following areas of
concern regarding the human rights situation in the country:
“The definition of torture provided in domestic
law ... is not fully in conformity with the definition in article 1
of the Convention, particularly regarding purposes of torture and its
applicability to all public officials and others acting in an
official capacity.
...
There are numerous allegations concerning the widespread
routine use of torture and ill-treatment by law enforcement and
investigative personnel, particularly to extract confessions to be
used in criminal proceedings. Further, there is an absence of
preventive measures to ensure effective protection of all members of
society from torture and ill-treatment.
...
The Committee is also concerned at:
(a) The lack of a legal obligation to
register detainees immediately upon loss of liberty, including before
their formal arrest and arraignment on charges, the absence of
adequate records regarding the arrest and detention of persons, and
the lack of regular independent medical examinations;
(b) Numerous and continuing reports of
hampered access to legal counsel, independent medical expertise and
contacts with relatives in the period immediately following arrest,
due to current legislation and actual practice allowing a delay
before registration of an arrest and conditioning access on the
permission or request of officials;
(c) Reports that unlawful restrictions of
access to lawyers, doctors and family by State agents are not
investigated or perpetrators duly punished;
(d) The lack of fundamental guarantees to
ensure judicial supervision of detentions, as the Procuracy is also
empowered to exercise such oversight;
(e) The extensive resort to pretrial
detention that may last up to 15 months; and
(f) The high number of deaths in custody.
...
There are continuing and reliable allegations concerning
the frequent use of interrogation methods that are prohibited by the
Convention by both law enforcement officials and investigative
bodies.
...
There are reports that there is no systematic review of
all places of detention, by national or international monitors, and
that regular and unannounced access to such places is not permitted.”
The report by Amnesty International entitled “The
State of The World’s Human Rights”, released in 2007, in
so far as relevant, reads as follows:
“...
There were continuing reports of unlawful arrests and
widespread and routine torture or other ill-treatment by law
enforcement officers, several of whom were sentenced to prison terms.
...
Sadullo Marufov, a member of the Islamic Renaissance
Party (IRP), died in police custody in May after he was detained for
questioning by law enforcement officers in Isfara. Initially the
officers claimed that he had committed suicide by jumping from a
third floor window. The IRP claimed that an autopsy report indicated
that he had been beaten and ill-treated, and alleged that he had been
pushed from the window. The general prosecutor’s office
subsequently announced that following an investigation three officers
had been detained.”
In its “World Report 2008 – Tajikistan”
of 31 January 2008 the Human Rights Watch stated as follows:
“Tajikistan’s human rights situation
continues to be characterized by lack of access to justice, due
process violations, incommunicado detention, and ill-treatment in
custody. The government interferes with opposition political parties.
Government harassment of non-traditional religious groups and Muslim
groups that are independent of state-controlled religious bodies has
intensified.
...
Torture and Ill-treatment in Custody
Human rights organizations and lawyers continue to
receive reports of arbitrary arrests, violations of detention
procedures and fair trial standards, and credible, serious
allegations of ill-treatment and torture in detention. Defense
lawyers themselves are subject to threats and harassment if they
insist on effective assistance of counsel.
Tajikistan has not amended its law on torture to comply
fully with the UN Committee Against Torture’s recommendations
to the country in December 2006. Law enforcement officials can be
charged with "abuse of professional competency" (criminal
code article 314), but not with torture. National legislation does
not prohibit torture evidence from being admitted at trial.
Impunity for ill-treatment in detention continues to be
widespread. There were, however, at least two cases in 2007 in which
law enforcement officers were prosecuted for ill-treatment. In April
police lieutenant Nurullo Abdulloev was sentenced to seven years’
imprisonment by a court in Kulyab for the unlawful detention and
ill-treatment of two detainees. In another case in April, two police
officers were each sentenced to two years’ imprisonment for
beating and torturing with electrical shock a 15-year-old boy in the
capital, Dushanbe. All three men were convicted under article 314.
...
Actions in the Name of Countering Terrorism and
Extremism
In 2007 law enforcement bodies continued to arrest
individuals simply because they were accused of possessing leaflets
of Hizb ut-Tahrir, a banned Islamic organization, and at least three
alleged Hizb ut-Tahrir members were sentenced to more than 10 years’
imprisonment each for "incitement of ethnic and religious
hatred" and "membership in extremist organizations."
In the first case of a child being imprisoned for membership in Hizb
ut-Tahrir, Muminbek Mamedov, a 17-year-old boy, was sentenced to
eight years’ imprisonment.
In January the Supreme Court banned another 10
organizations, including the Islamic Movement of Turkestan, as
"extremist." In August a small Islamist group, Mavlavi, was
banned on the grounds that it holds "unsanctioned gatherings."
Uzbek and Tajik citizens continue to be arrested for
alleged membership in the Islamic Movement of Uzbekistan. In these
highly political cases involving terrorism charges, the suspects are
frequently denied procedural protection and the right to a fair
trial, and routinely suffer from inhumane treatment in detention.
...
Visiting Tajikistan in April, United Nations High
Commissioner for Human Rights Louise Arbour called on the government
to ensure better access to justice and to allow local and
international monitors, including the International Committee of the
Red Cross, to visit detention places. Asma Jahangir, the UN special
rapporteur on freedom of religion or belief, visited Tajikistan in
February, concluding that religious communities and individuals faced
"challenges," and underscoring the importance of the
government’s ensuring that "especially vulnerable
individuals" be protected "from harassment by non-State
actors in the name of religion."
In March the UN Human Rights Committee issued two
decisions on applications alleging abuses by Tajik authorities. It
found that in both Ashurov v. Tajikistan, and Karimov and
Nursatov v. Tajikistan the victims had been subjected to torture
and unfair trial. The decisions urge Tajik authorities to ensure
effective remedy to the applicants, including compensation, and in
the Ashurov case to immediately release the victim. At this
writing the government has not implemented the decisions.”
In its monthly report of November 2008 the Bureau on
Human Rights and the Rule of Law, an NGO established in Tajikistan,
provided the following information on the situation regarding torture
in detention in that country:
“In Tajikistan only 2% of victims of torture are
able to prove that fact and have the perpetrators punished... This
conclusion is based on the findings of the research of practice of
ill-treatment by law enforcement officials at arrest and during the
preliminary investigation carried out by the League of lawyers and
the public foundation “Panorama”. Having interviewed the
victims, the researchers came to the following conclusions.
The detainees stated that they had been subjected to the
following methods of ill treatment: psychological pressure –
24%; being hit, kicked and beaten with truncheon on different parts
of the body – 32,5%; threats of physical violence –
12,5%. 32% of victims stated that they had been simultaneously
subjected to various forms of torture, in particular, torture with
electricity, threats and beatings.
57% of victims of torture and ill-treatment suffered
from psychological disorder, one third of the interviewed had bodily
injuries. 3% of victims of torture or ill treatment had grave
bodily injuries. There were also fatal cases [among those examined by
the researchers]. There were suspiciously many cases of suicides
committed in custody.
The research showed that the perpetrators were mostly
unpunished. The main reason for this was that the majority of victims
of torture were not complaining to law enforcement bodies. Only 24%
[of the interviewed] submitted such complaints. The main reasons for
failure to complain were fear of reprisals (44,5%), lack of trust
towards the law enforcement officials (29%), lack of knowledge of the
relevant procedures (6,7%)....”
The World Report chapter on Tajikistan by Human Rights
Watch released in January 2009, in so far as relevant, reads as
follows:
“Actions in the Name of Countering Terrorism
and Extremism
Following a recommendation by the prosecutor general,
the Supreme Court of Tajikistan designated Hizb ut-Tahrir, a group
that supports the reestablishment of the Caliphate, or Islamic state,
by peaceful means, an "extremist" organization. The
government continued to arrest alleged Hizb ut-Tahrir members and
convict them either of sedition or incitement to racial, ethnic, or
religious hatred, often simply for possessing the organization’s
leaflets.
...
Torture and Deaths in Custody
Tajikistan’s definition of torture does not comply
fully with the UN Committee Against Torture’s recommendations
to the country in December 2006. In a positive move, in March 2008
the Criminal Procedure Code was amended to make evidence obtained
under torture inadmissible in court proceedings.
Experts agree that in most cases there is impunity for
rampant torture in Tajikistan. In one of the few cases that reached
the courts, two policemen in Khatlon province were convicted in
August 2008 for ill-treating minors; one of the two received a
four year prison sentence, and the other a suspended sentence.
NGOs and local media reported at least three deaths in
custody in 2008, including the death from cancer of the ex-deputy
chair of the Party of Islamic Revival Shamsiddin Shamsiddinov. The
party alleged his arrest in 2003 was politically motivated and
claimed that his life could have been saved had he been allowed to
undergo surgery.
In an April 1, 2008 decision (Rakhmatov et al. v.
Tajikistan) the UN Human Rights Committee found that Tajikistan
violated the rights, including freedom from torture, of five
applicants, two of them minors when they were arrested. Tajikistan
failed to cooperate with the committee’s consideration of the
complaint. Similar violations were established in an October 30, 2008
decision (Khuseynov and Butaev v. Tajikistan)”.
In January 2010 the Human Rights Watch released its
World Report 2010, where the chapter on Tajikistan, in so far as
relevant, states:
“Torture is routinely used by law enforcement
officials, and the Tajik government continues to deny human rights
groups access to places of detention.
...
Torture
Torture is practiced by law enforcement officers and
within the penitentiary system in a culture of near-impunity. It is
often used to extract confessions from defendants, who during initial
detention are often denied access to family and legal counsel. To
date the Tajik government has refused all requests from human rights
groups to visit detention sites, interrogation rooms and prisons.
Tajikistan’s definition of torture does not fully
comply with recommendations made to the country by the United Nations
Committee against Torture in November 2006. In a small sign of a
progress, local and international human rights groups recently
completed a campaign to document instances of torture in Tajikistan,
as part of a two year project funded by the European Union.
That project, which was run in Tajikistan by the Bureau on Human
Rights and the Rule of Law, determined that over the past two years
there had been more than 90 cases of torture.
Freedom of Religion
...
There continued to be reports of the Tajik authorities
prosecuting alleged members of Hizb ut-Tahrir, an international
Islamic organization that is banned in several countries in the
region, and sentencing them to long prison terms on questionable
evidence.”
The 2009 US Department of State Country Report on
Human Rights Practices, released on 11 March 2010, in so far as
relevant, reads as follows:
“The government’s human rights record
remained poor, and corruption continued to hamper democratic and
social reform. The following human rights problems were reported: ...
torture and abuse of detainees and other persons by security forces;
impunity of security forces; denial of right to fair trial; harsh and
life-threatening prison conditions; prohibition of international
monitor access to prisons; ...
The law prohibits [cruel, inhumane or degrading
treatment or punishment], but some security officials used beatings
or other forms of coercion to extract confessions during
interrogations, although the practice was not systematic. Officials
did not grant sufficient access to information to allow human rights
organizations to investigate claims of torture.
In Sughd region, four suspects arrested in a murder case
claimed investigators tortured them seeking to extract confessions.
One suspect claimed an investigator threatened to ‘ruin’
his daughter if he did not confess to a crime. The same individual
stated he lost toenails as a result of torture while in custody. The
courts dismissed the individual’s claim of torture, and he was
convicted of murder and other crimes and sentenced to 30 years in
prison. Several individuals held in Dushanbe city jails also claimed
they were beaten while in custody. Articles in the criminal code do
not specifically define torture, and the country’s law
enforcement agencies have not developed effective methods to
investigate allegations of torture. According to a report during
the year by Human Rights Watch, ‘Experts agreed that in most
cases there is impunity for rampant torture in Tajikistan’.
In an April 2008 court decision (Rakhmatov et al. v.
Tajikistan) the UN Human Rights Committee found that the
government violated the human rights, including freedom from torture,
of three adults and two minors. The committee also noted that the
government failed to cooperate with the committee and that similar
allegations were substantiated in an October 2008 court decision
(Khuseynov and Butaev v. Tajikistan). Denial of access to
detention centres impeded efforts to determine if any improvements
had occurred since then.
...
The Ministry of Justice (MOJ) continued to deny access
to prisons or detention facilities to representatives of the
international community and civil society seeking to investigate
claims of harsh treatment or conditions. Some foreign diplomatic
missions and NGOs were given access to implement assistance programs
or carry out consular functions, but their representatives were
limited to administrative or medical sections, and MOJ personnel
accompanied them. The government did not sign an agreement with the
International Committee of the Red Cross (ICRC) to allow free and
unhindered access to prisons and detention centres, and the ICRC’s
international monitoring staff has not returned to the country since
2007.
Detainees and inmates described harsh and
life-threatening prison conditions, including extreme overcrowding
and unsanitary conditions. Disease and hunger were serious problems,
but outside observers were unable to assess accurately the extent of
the problems because authorities did not allow access to prisons.
Organizations such as the UN Human Rights Council reported that
infection rates of tuberculosis and HIV were significant and that the
quality of medical treatment was poor.
...
The government placed few checks on the power of
prosecutors and police to make arrests. The criminal justice system
operated under the criminal procedure code based on a 1961 Soviet
law. Individuals reported that some prosecutors and courts pressed
questionable criminal charges and that some officials influenced
judges inappropriately to get convictions. In December the government
approved a new criminal procedure code to replace the existing code
in April 2010.
...
Victims of police abuse may submit a formal complaint in
writing to the officer’s superior or the Office of the
Ombudsman. Most victims chose to remain silent rather than risking
retaliation by the authorities.
...
By law prosecutors are empowered to issue arrest
warrants, and there is no requirement for judicial approval of an
order for pre-trial detention. Police may detain a suspect without a
warrant in certain circumstances, but a prosecutor must be notified
within 24 hours of arrest. After a warrant is issued, the police may
hold a suspect 72 hours before arraignment. Defence advocates
alleged that prosecutors often held suspects for longer periods and
only registered the initial arrest when the suspect was ready to
confess. Pre-trial detention may last as long as 15 months in
exceptional circumstances.
...
Prosecutors oversee pre-trial investigation and have the
right to initiate criminal proceedings. Individuals have the right to
an attorney upon arrest and the government must appoint lawyers for
those who cannot otherwise afford one. In practice the government
provided few attorneys for public defence, and these attorneys were
generally ineffective. There is no bail system, although criminal
detainees may be released conditionally and restricted to their place
of residence pending trial. The typical length of pre-trial detention
was two to three months.
According to the law, family members are allowed access
to prisoners only after indictment; officials occasionally denied
attorneys and family members access to detainees. Authorities held
detainees charged in crimes related to national security
incommunicado for long periods without formally charging them. In
January, after relatives of former citizen Muhammadi Salimzoda sought
his whereabouts for five months, the SCNS admitted that Salimzoda had
been in state custody the entire period. Salimzoda was sentenced to
29 years’ imprisonment for espionage and attempting to
overthrow the government, but he claimed security personnel obtained
his confession to the crimes under physical and psychological duress.
The government generally provided a rationale for
arrests, although some detainees claimed that authorities falsified
charges or inflated minor problems to make politically motivated
arrests. Some police and judicial officials regularly accepted bribes
in exchange for lenient sentencing or release.
...
Authorities claimed that there were no political
prisoners and that they did not make any politically motivated
arrests. Opposition parties and local observers claimed the
government selectively prosecuted political opponents. There was no
reliable estimate of the number of political prisoners, but former
opposition leaders claimed there were several hundred such prisoners
held in the country, including former fighters of the UTO.
In February Rustam Fayziev, deputy chairman of the
unregistered Party of Progress, died in prison after four years of
confinement for insulting and defaming President Rahmon in a 2005
unsent, unpublished letter. The government claimed his death was the
result of natural causes. Muhammadruzi Iskandarov, head of the
Democratic Party of Tajikistan and former chairman of Tojikgaz, the
country’s state-run gas monopoly, remained in prison following
his unlawful extradition from Russia and 2005 conviction for
corruption. Former interior minister Yakub Salimov remained in prison
serving a 15-year sentence for crimes against the state and high
treason following his 2005 closed trial.”
The chapter “Tajikistan” in the Amnesty
International report “The State of the World’s Human
Rights”, released in May 2010, states, in so far as relevant:
“The Government continued to exert tight control
over the exercise of religion. Reports of torture and other
ill-treatment by law enforcement officers continued.
...
Torture and ill-treatment
Report of torture and ill-treatment by law enforcement
officials continued, in particular, to extract confessions during the
first 72 hours, the maximum period suspects could be held without
charge.
On 27 June, Khurshed Bobokalonov, a specialist in the
Tajikistani Oncology Centre, dies after being arrested by the police.
He had been walking along the street when the police stopped him and
accused him of being drunk. He protested, and some 15 policemen
bundled him into a police car. The Ministry of the Interior claimed
that he died of a heart attack on the way to the police station. His
mother reported injuries on her son’s face and body, and on 22
July the Minister of the Interior announced an investigation into
possible “death through negligence”. There was no public
information about the progress of the investigation by the end of the
year.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
The
applicant complained that, if extradited to Tajikistan, he would run
a real risk of being subjected to ill-treatment in breach of Article
3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
applicant also contended under Article 13 of the Convention that he
had had no effective remedies in respect of his allegations of
possible ill-treatment in Tajikistan. Article 13 reads:
“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’ submissions
1. The Government
The
Government argued that the domestic authorities, including the FMS
and the courts, had carefully examined the applicant’s
allegations that he would be subjected to a risk of ill-treatment if
extradited to Tajikistan and had correctly dismissed them as
unfounded. The information obtained from “official sources”
had not confirmed that the Tajikistani authorities were persecuting
their citizens on political or religious grounds or subjecting
citizens under criminal prosecution to inhuman or degrading
treatment. The courts also examined the information produced by
various NGOs. However, their reports were not official documents and
were not binding for the courts. In any event, the applicant had come
to Russia in 2007 to earn money. He had not legalised his status upon
arrival and, until his arrest in 2008, had not applied for Russian
citizenship, asylum or temporary asylum. Nor had he notified the
authorities of his fears of being persecuted in Tajikistan, as proved
by his explanation of 6 August 2008 and the hearing transcript
of 20 April 2009.
The
Government further submitted that the applicant had not requested the
authorities to secure his presence at the hearing of 20 April 2009.
In any event, his lawyer attended the hearing, but the prosecutor did
not.
They
further argued that the applicant had had at his disposal a number of
effective remedies in respect of his grievances under Article 3. In
particular, under Article 462 § 6 of the Code of Criminal
Procedure, a person challenging an extradition order could not be
extradited until such time as the order became final. Furthermore,
under Article 464 § 5 of the CCrP a person was not to be
extradited if there was a final court decision prohibiting
extradition. Lastly, Article 12 of the Refugees Act provided for a
possibility to grant a person temporary asylum even if he or she did
not qualify for refugee status.
2. The applicant
The applicant submitted that there were substantial
grounds for believing that he would be exposed to a real risk of
ill-treatment in breach of Article 3 if extradited to Tajikistan.
Relying on reports by various NGOs, such as Human Rights Watch and
Amnesty International, the applicant stated that torture continued to
be applied to detainees in Tajikistan to extract their confessions
and that persons prosecuted for their presumed membership in HT were
particularly targeted by the authorities. The applicant further
referred to his own experience of ill-treatment at the hands of the
authorities and his relatives’ reports that they had been
threatened and that his co-accused had been severely ill-treated
after his escape. According to the applicant, after the City Court
had asked the Tajikistani authorities to comment on his accusations
concerning the Tajikistani law enforcement system, the risk of the
applicant being subjected to ill-treatment in retaliation for his
criticism and also for his escape, was all the higher. With reference
to the Court’s Saadi judgment, the applicant also
affirmed that the assurances given by the Tajikistani authorities
were not sufficient to safeguard him against the alleged risk of
ill-treatment.
The applicant further argued that in examining his
case the Russian authorities had disregarded his specific submissions
concerning his religious and political persecution and relevant
reports by independent NGOs, and had relied solely on “official
sources of information”. The courts’ conclusion that the
applicant had voluntarily left Tajikistan was at variance with his
consistent submissions that he had fled because of his persecution on
religious grounds and the ill-treatment sustained in custody.
Referring to other cases against Russia concerning expulsion and
extradition and pending before the Court, the applicant insisted that
the Russian courts consistently adopted the same formalistic approach
in dealing with such complaints, which showed that the remedies
suggested by the Government were ineffective in practice.
Lastly, he claimed that the asylum legislation did
not unequivocally prohibit extradition of an asylum seeker, that the
outcome of the asylum proceedings had been prejudged in the
extradition proceedings and that his absence from the hearing on
7 April 2009 had deprived him of an opportunity to effectively
challenge the Moscow FMS refusal to grant him asylum.
B. The Court’s assessment
1. Admissibility
The
Court notes that the applicant’s complaints under Articles 3
and 13 of the Convention are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that they are not inadmissible on any other grounds and must
therefore be declared admissible.
2. Merits
(a) Article 3 of the Convention
(i) General principles
The
Court reiterates at the outset that Contracting States have the right
as a matter of international law and subject to their treaty
obligations, including the Convention, to control the entry,
residence and expulsion of aliens (see Abdulaziz, Cabales and
Balkandali v. the United Kingdom, 28 May 1985, § 67,
Series A no. 94), and the right to political asylum is not explicitly
protected by either the Convention or its Protocols (see Salah
Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007 I
(extracts)). However, expulsion by a Contracting State may give rise
to an issue under Article 3, and hence engage the responsibility of
that State under the Convention, where substantial grounds have been
shown for believing that the individual concerned, if deported, faces
a real risk of being subjected to treatment contrary to Article 3.
In such a case, Article 3 implies an obligation not
to deport the person in question to that country (see Saadi v.
Italy [GC], no. 37201/06, § 125, ECHR 2008 ...).
Nonetheless, there is no question of adjudicating on or establishing
the responsibility of the receiving country, whether under general
international law, under the Convention or otherwise (see Soering
v. the United Kingdom, 7 July 1989, § 91, Series A no.
161).
The
assessment whether there are substantial grounds for believing that
the applicant faces a real risk of being subjected to treatment in
breach of Article 3 inevitably requires that the Court assess the
conditions in the receiving country against the standards of that
Convention provision (see Mamatkulov and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, § 67, ECHR 2005 I). These
standards imply that the ill-treatment the applicant alleges he will
face if returned must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this is
relative, depending on all the circumstances of the case (see
Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II).
In
determining whether it has been shown that the applicant runs a real
risk of suffering treatment proscribed by Article 3 if extradited,
the Court will examine the issue in the light of all the material
placed before it or, if necessary, material obtained proprio motu
(see Saadi, cited above, § 128). Since the nature of
the Contracting States’ responsibility under Article 3 in cases
of this kind lies in the act of exposing an individual to the risk of
ill-treatment, the existence of the risk must be assessed primarily
with reference to those facts which were known or ought to have been
known to the Contracting State at the time of the extradition (see
Vilvarajah and Others v. the United Kingdom, 30 October 1991,
§ 107, Series A no. 215).
It
is in principle for the applicant to adduce evidence capable of
proving that there are substantial grounds for believing that, if the
measure complained of were to be implemented, he would be exposed to
a real risk of being subjected to treatment contrary to Article 3
(see N. v. Finland, no. 38885/02, § 167, 26 July
2005). Where such evidence is adduced, it is for the Government to
dispel any doubts about it (see Ryabikin v. Russia,
no. 8320/04, § 112, 19 June 2008).
As
regards the general situation in a particular country, the Court has
held on several occasions that it can attach certain importance to
the information contained in recent reports from independent
international human-rights-protection associations such as Amnesty
International, or governmental sources, including the US State
Department (see, Saadi, cited above, § 131, with further
references). At the same time, the mere possibility of ill-treatment
on account of an unsettled situation in the receiving country does
not in itself give rise to a breach of Article 3 (ibid).
Where
the sources available to the Court describe a general situation, an
applicant’s specific allegations in a particular case require
corroboration by other evidence (see Mamatkulov and Askarov,
cited above, § 73).
(ii) Application of the above principles
to the present case
The
Government argued that “official sources” had not
confirmed the applicant’s allegation that he would run a real
risk of ill-treatment and torture if extradited to Tajikistan. With
reference to various reports of international and local NGOs and his
own experience, the applicant disputed the Government’s
argument.
The
Court reiterates that in cases where an applicant provides reasoned
grounds which cast doubt on the accuracy of the information relied on
by the respondent Government, the Court must be satisfied that the
assessment made by the authorities of the Contracting State is
adequate and sufficiently supported by domestic materials as well as
by materials originating from other reliable and objective sources
such as, for instance, other Contracting or non-Contracting States,
agencies of the United Nations and reputable non-governmental
organisations (see Salah Sheekh, cited above, § 136, and
Ismoilov and Others v. Russia, no. 2947/06, § 120,
24 April 2008).
The
Court will first assess whether the applicant’s grievance
received any reply at the national level (see Muminov v. Russia,
no. 42502/06, § 86, 11 December 2008).
(α) Domestic proceedings
Having
regard to the materials in its possession, the Court notes that the
applicant complained about the risk of being subjected to treatment
in breach of Article 3 in both the asylum and the extradition
proceedings and that in both those sets of proceedings the domestic
authorities took cognisance of his submissions. Hence, in assessing
whether the applicant’s grievance received an adequate reply,
the Court will have regard to both sets of proceedings.
Referring
to the applicant’s explanation of 6 August 2008 and the hearing
transcript of 20 April 2009, the Government argued that the applicant
had failed to inform the authorities of his fear of being persecuted
in Tajikistan. In this respect the Court notes that the information
contained in the written explanation was, indeed, not particularly
detailed. However, on 19 December 2008 the applicant’s lawyer
notified the Russian Prosecutor General’s Office that the
applicant was challenging before the courts the refusal to grant him
asylum and requested it to take that fact into account when examining
the extradition issue (see paragraph 23 above). Furthermore,
according to the impugned hearing transcript of 20 April 2009 and
contrary to the Government’s assertion, the applicant addressed
to the City Court detailed submissions on the risk of his being
subjected to treatment in breach of Article 3 (see paragraph 29
above).
Having
regard to the applicant’s submissions to the courts in
extradition and asylum proceedings, the Court is satisfied that he
consistently raised before the domestic authorities the issue of the
risk that he would be subjected to treatment in breach of Article 3
of the Convention, advancing a number of specific and detailed
arguments. Among other things, he referred to his alleged previous
ill-treatment, the systematic practice of ill-treatment inflicted on
detainees in Tajikistan and the fact that the authorities had
persecuted him on religious grounds. The applicant substantiated his
allegations by reference to reports by international organisations on
the human rights situation in Tajikistan, in particular as regards
the risk of persons being detained and persecuted for their religious
beliefs (see paragraphs 26, 29, 36, 39-43, 46, 48 and 51 above).
However, the Court is not persuaded that the domestic authorities
made an adequate assessment of the risk of torture or ill-treatment
if the applicant were to be extradited to Tajikistan.
As regards the extradition proceedings, the Court
cannot but note that the domestic authorities involved in the
decision-making process in fact disregarded the applicant’s
submission that he would run a risk of treatment proscribed by
Article 3 in his home country. In particular, they failed to address
his allegations of previous ill-treatment while in detention in
Tajikistan and his submission that he ran a particular risk of
torture as a person charged with active membership of a proscribed
religious organisation (see paragraphs 37 and 41 above). Nor did they
give any consideration to his allegation that he had fled from
custody because of the beatings inflicted on him (ibid.).
The
Court finds particularly striking the City Court’s statement
that the applicant “had not been and was not being persecuted
in the territory of the Republic of Tajikistan on political or other
grounds” (see paragraph 37 above), although a copy of the
related hearing transcript clearly contained information to the
contrary (see paragraph 29 above).
Furthermore,
neither the City Court nor the Supreme Court gave any consideration
to a body of relevant information from independent NGOs, relied on by
the applicant and enclosed by those courts in the case file materials
(see paragraphs 29, 37 and 42 above). It transpires that the courts
chose to rely solely on the scant information contained in the letter
of the MID (ibid.).
In the Court’s opinion, the asylum proceedings
were tainted by the same defects as those enumerated above (see
paragraphs 47-48 above). In particular, in its decision of 10
September 2009 the Zamoskvoretskiy District Court explicitly refused
to examine the information from non-governmental sources and assess
the issue of the risk for the applicant of being subjected to
treatment in breach of Article 3 (see paragraph 50 above). The same
court stated that the applicant “only feared criminal
prosecution”, which was at variance with the applicant’s
submission, cited earlier in the same decision, that he feared his
return to Tajikistan because of the risk of torture (ibid.). This
holds true also for the appeal decision of 28 January 2010 (see
paragraph 53above).
In sum, for the reasons stated in paragraphs 123-126
above, the Court considers that the domestic authorities failed to
make an adequate assessment of the risk of the applicant being
subjected to torture or ill treatment if he were to be
extradited to Tajikistan.
(β) The Court’s assessment of the
risk
The
Court has now to assess whether there is a real risk that, if
extradited to Tajikistan, the applicant would be subjected to
treatment proscribed by Article 3. In line with its case-law and
bearing in mind that the applicant has not yet been extradited, owing
to the indication 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.
In
the Government’s submission, the applicant’s allegation
of risk of ill-treatment or torture remained unconfirmed by “official
sources”. Assuming that the Government had in mind the letter
of the Russian MID used in the extradition proceedings, the Court
nonetheless reiterates that in cases concerning aliens facing
expulsion or extradition it is entitled to compare materials made
available by the Government with information from other reliable and
objective sources (see Salah Sheekh, cited above, § 136;
and Saadi, cited above, § 131).
In
this connection the Court points out that evidence from a number of
objective sources describes a disturbing situation in Tajikistan. In
particular, the UN Committee against Torture, the US Department of
State, Amnesty International and Human Rights Watch described the
practice of torture against those in police custody as “systemic”,
“widespread” and “routine” (see paragraphs
93, 94 and 98 above). The Committee also pointed out that detainees
were often kept in unrecorded detention, and prevented from having
access to legal counsel and medical expertise following their arrest,
and that interrogation methods prohibited by the Convention Against
Torture were frequently used (see paragraph 93 above).
Human
Rights Watch referred to the issue of incommunicado detention (see
paragraph 95 above) and the US Department of State specifically
stated that the Tajik authorities held detainees charged with crimes
related to national security incommunicado for long periods of time
(see paragraph 99 above). It is also noted that several independent
observers stated that granting impunity to State officials for acts
of rampant torture was common practice (see paragraphs 96, 98 and 99
above).
Turning
to the applicant’s personal situation, the Court points out
that he was wanted by the Tajikistani authorities on account of his
alleged active participation in Hizb ut-Tahrir, a religious
organisation which the Tajikistani Supreme Court had banned because
of its extremist activities. The comprehensive list of charges
against the applicant included, besides incitement to religious
hatred and participation in a criminal organisation, appeals to
overthrow the constitutional order, which undoubtedly belongs to the
category of crimes against national security.
The
Court further observes that, according to Human Rights Watch, the
Government’s harassment of non-traditional religious groups and
Muslim groups that were independent of state-controlled religious
bodies had intensified in 2007 (see paragraph 95 above) and it
appears that that trend, in particular in respect of alleged members
of Hizb ut-Tahrir, continued after 2008 and throughout 2010 (see
paragraphs 97 and 98 above).
It
was stated, among other things, that law enforcement authorities
continued arresting individuals simply because they were accused of
possessing leaflets of Hizb ut-Tahrir, and sentencing them to lengthy
imprisonment terms on questionable evidence (see paragraphs 95, 97
and 98 above). Against this background it is highly significant for
the Court that the Tajikistani authorities have consistently refused
to allow independent observers access to detention facilities (see
paragraphs 93, 95 and 99 above, and compare Abdolkhani
and Karimnia v. Turkey, no. 30471/08,
§ 81, ECHR 2009 ... (extracts)). It is also noted that in a
recent judgment against Russia the Court has found that there were
serious reasons to believe in the existence of the practice of
persecution of members and supporters of Hizb ut-Tahrir, whose
underlying aims appear to be both religious and political (see
Khodzhayev v. Russia, no. 52466/08, § 101, 12 May 2010).
As
regards the applicant’s submission that he had already
experienced ill-treatment at the hands of Tajikistani law enforcement
officials, the Court observes that he did not adduce certain
evidence, such as, for example, his relatives’ statements, to
support his submission Nonetheless, it considers that the applicant’s
account of events is consistent and detailed (see Garayev
v. Azerbaijan, no. 53688/08, § 72,
10 June 2010). In this respect the Court finds peculiar that
the decision of 25 May 2006 issued by the Tajik authorities
explicitly stated that the applicant had escaped from the “summer
cottage” of the MNS, which, in the Court’s view, lends
further credibility to his submissions concerning the events
following his arrest in Tajikistan in 2006 (see paragraph 14 above).
Regard
being had to the climate of impunity for law enforcement officials
practising torture (see paragraphs 93, 95, 98 and 99 above) and the
fact that, if extradited, the applicant will likely be held in the
same detention facility pending trial, the Court considers that his
allegation that he would run a greater risk of being subjected to
treatment in breach of Article 3 in retaliation for his escape
from custody cannot be discarded as completely without foundation. In
this connection it takes note of the applicant’s submission
that his relatives were approached by law enforcement officials who
threatened them and the applicant with reprisals (see paragraphs 13,
29 and 106 above, see also Ismoilov and Others, cited above,
§ 124).
It
is also significant for the Court that the office of the UNHCR, after
having interviewed the applicant and carefully examined his case,
found that he was unable to return to Tajikistan as a person
persecuted for his imputed political opinions and that he was
eligible for international protection under its mandate (see
paragraph 55 above).
Lastly,
in so far as the domestic authorities relied on diplomatic assurances
from the Tajikistani Prosecutor General’s Office, the Court
would note that they are not in themselves sufficient to ensure
adequate protection against the risk of ill-treatment where reliable
sources have reported practices resorted to or tolerated by the
authorities which are manifestly contrary to the principles of the
Convention (see Saadi, cited above, §§ 147-48).
In
view of the above, the Court considers that substantial grounds have
been shown for believing that the applicant would face a real risk of
treatment proscribed by Article 3 if extradited to Tajikistan.
The
Court concludes therefore that implementation of the extradition
order against the applicant would give rise to a violation of Article
3 of the Convention.
(b) Article 13 of the Convention
The
applicant complained that he had had no effective remedies in respect
of his complaints under Article 3 of the Convention, in breach of
Article 13.
The
Government contested the applicant’s submission.
Having
regard to the applicant’s submissions, the Court considers that
the gist of his claim under Article 13, which it considers “arguable”
(see Muminov, cited above, § 99), is the domestic
authorities’ alleged failure to carry out a rigorous scrutiny
of the risk of him being subjected to ill treatment in the event
of his extradition to Tajikistan (see paragraphs 106-108 and, in
particular, paragraph 107 above).
In
this respect the Court notes that it has already examined that
allegation in the context of Article 3 of the Convention. Having
regard to its findings in paragraphs 123-127 above, the Court
considers that there is no need to examine this complaint separately
on its merits (see, mutatis mutandis, Makaratzis v.
Greece [GC], no. 50385/99, §§ 84-86,
ECHR 2004 XI).
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The
applicant complained under Article 5 § 1 (f) of the Convention
that his detention had been unlawful in that it had not been extended
after 16 November 2006 and the related court decisions mentioned
no time-limits for it. He also stated that the applicable legal
provisions lacked clarity and precision and thus did not satisfy the
“quality of the law” requirements under Article 5 of the
Convention. He also submitted, under Article 5 § 4, that he had
been deprived of the right to have the lawfulness of his detention
reviewed by a court, referring to the courts’ refusal to
examine his complaints about detention and requests for release.
Article
5 of the Convention reads, in so far as relevant, 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.”
A. Submissions by the parties
1. The Government
The
Government argued that the applicant had not exhausted the domestic
remedies in respect of his complaints under Article 5. In particular,
he had failed to challenge the detention orders of 7 August and
16 September 2008 on appeal or by way of supervisory review
pursuant to Articles 108 § 11 and 109 § 8 of the CCrP,
despite the fact that he had been advised of the time-limits and
procedures for doing so. The applicant had likewise failed to appeal
against the refusal of 27 January 2009 to examine his release request
and had failed to rectify the shortcomings indicated in that
decision. Bearing in mind that, pursuant to Article 466 of the CCrP,
a prosecutor was to petition a court to remand the applicant in
custody, it was also open to the applicant to complain about the
inactivity of the prosecutors under Articles 124 and 125 of the CCrP.
Whilst the City Court had, indeed, disregarded the applicant’s
request for release filed on 20 April 2009, the applicant had
not complained about it in his appeal statement. Furthermore, the
applicant had failed to appeal by way of supervisory review against
the Supreme Court’s failure to examine his written request for
release lodged on 8 June 2009. Moreover, the applicant could have
complained to the courts about his detention under Article 17 of the
Custody Act, or challenged the acts or omissions of the
administration of the remand centre under Chapter 25 of the CCP.
In
the alternative, the Government argued that the latest decision
concerning the applicant’s detention had been issued on 16
September 2008, and that the applicant had therefore failed to comply
with the six-month requirement in respect of his complaints under
Article 5 § 1.
The Government further submitted that the domestic
authorities had been obliged to hold the applicant in custody because
the Strasbourg Court had applied Rule 39 and indicated to them to
suspend his extradition. Referring to the Chahal case (see
Chahal v. the United Kingdom, 15 November 1996, Reports
of Judgments and Decisions 1996 V), they stressed that
paragraph 1 (f) of Article 5 of the Convention provided for a level
of protection different from paragraph 1 (a)-(e), requiring only that
extradition proceedings be pending. Hence, it was immaterial for that
provision whether there existed sufficient grounds for holding the
person in custody. Accordingly, the applicant’s detention from
5 August 2008 onwards had been “lawful” within the
meaning of the above provision.
They
further claimed that the applicable domestic provisions were
sufficiently clear and foreseeable and permitted the applicant to
estimate the likely length of his detention. In this respect they
referred to Articles 108 and 109 of the CCrP, the Constitutional
Court Ruling of 4 April 2006 and the Supreme Court Ruling of 29
October 2009, which had, in their opinion, given a comprehensive
interpretation of the application of those provisions to extradition
proceedings. Consequently, the lack of time-limits in the detention
orders of 7 August and 16 September 2008 was compatible with the
requirements of Article 5 § 1 (f). Lastly, the Government stated
that the Prosecutor General’s Office had displayed due
diligence in conducting the extradition proceedings.
2. The applicant
The
applicant argued that if his detention term were calculated in
accordance with Article 109 of the CCrP, the period of his detention
authorised by the decision of 16 September 2008 would have expired on
16 November 2008, that is two months later. Accordingly, having
complained to the Court on 15 May 2009, he had complied with the
six month requirement.
He
further claimed that he had exhausted domestic remedies. In
particular, he submitted that he had no need to avail himself of
applications for supervisory review because that remedy was not
effective.
Furthermore,
he argued that, contrary to the Government’s submissions, he
had consistently attempted to obtain review of his detention but his
complaints had been discarded without consideration - first by the
Babushkinskiy District Court, which had substituted his complaint for
a civil action and then by the City Court and the Supreme Court,
which had disregarded his oral and written submissions. The
applicant’s attempts to raise the issue before the Nagatinskiy
and Siminovskiy district courts also met with a refusal to examine
his complaints. Moreover, the Simonovskiy District Court replied to
the applicant’s complaint by letter, thereby depriving him of
the possibility of challenging it through normal procedures. The
applicant’s lawyer’s attempts to complain about his
detention to the prosecutor’s office also produced no results,
which showed that that remedy was not effective either.
The applicant stressed that the thrust of his
complaint under Article 5 § 1 (f) was not the unlawfulness
of the initial decisions to remand him in custody but the
authorities’ failure to extend his detention after the expiry
on 16 November 2008 of the two-month period under the detention order
of 16 September 2008, which omission had been in breach of the
domestic law.
According
to the applicant, the lack of time-limits for his detention in the
detention order of 7 August 2008 left him in a state of
uncertainty as to the length of his detention. Moreover, the decision
of 16 September 2008 must have been aimed at extending the term
of the applicant’s detention because he was already in custody.
However, it was termed as an initial detention order and, again,
failed to set any time-limit, which enabled the authorities to hold
him in custody for an unlimited period of time.
The
applicant further argued that the domestic provisions regulating
detention pending extradition were unclear and unforeseeable. In
particular, the reply of the Prosecutor General’s Office to the
ombudsman acknowledged the lack of uniform judicial approach to the
detention of persons pending extradition and clearly demonstrated
that the domestic provisions did not satisfy the “quality of
the law” requirement under the Convention. The uncertainty of
the law was further demonstrated by the Prosecutor General’s
Office’s statement that the maximum detention term of eighteen
months, fixed by Article 109 of the CCrP, applied exclusively to
persons detained pending extradition while the extradition check was
in progress, and not to those persons in respect of whom the
Prosecutor General’s Office had already issued an extradition
order. In the same vein, while the Government argued that Chapter 13
of the CCrP on preventive measures was to be applied to detention
pending extradition, they did not take into acocunt the fact that his
detention was in breach of the relevant provisions. The
unsatisfactory quality of the law had made it impossible for the
applicant to estimate the likely duration of his detention, which had
in any event exceeded the maximum period of 18 months authorised
by Article 109 of the CCrP.
He
further stated that the Prosecutor General’s Office had
concluded its extradition check on 30 December 2008, and that on 8
June 2009 that decision had become final and the extradition
proceedings against him had been terminated. After that no action
with a view to extraditing him had been taken, so his further
detention was in breach of Article 5 § 1 (f). In the applicant’s
submission, the fact that he had challenged the extradition order
before the courts did not necessitate his further detention or
relieve the authorities from their obligation to authorise it in
accordance with the law. In the same vein, nowhere did the Asylum Act
contain a requirement for asylum seekers to be held in custody, and
the Government’s statement that the authorities had to hold him
in custody because of the Strasbourg Court’s application of
Rule 39 was misconceived.
Relying
on the Court’s judgments in the cases of Ismoilov and Others
and Nasrulloyev, the applicant argued that the
Government’s reference to Articles 108 and 109 of the CCrP was
misconceived. In particular, it was obvious from the wording of those
provisions that it was possible to challenge an extension of
detention only if there was a decision to extend the detention.
However, no such decisions had been taken in his case. Article 124 of
the CCrP secured a possibility to complain to a prosecutor or an
investigative body but did not provide for access to judicial review
of detention, as required by Article 5 § 4 of the Convention.
Article 125 of the CCrP contained an exclusive list of decisions
a court could take in examining a complaint. However, there was no
indication that a court could instruct an investigating authority to
release the detainee. On the contrary, according to the Supreme Court
Directive Decision of 10 February 2009, although a court
examining a complaint under Article 125 could order a law
enforcement official whose acts it considered unlawful to set matters
right, it could not annul the decisions which it had qualified as
unlawful.
As
to Article 17 of the Custody Act, although that provision
mentioned the detainee’s right to challenge his detention
before the courts, it did not lay down the relevant procedures.
According to Supreme Court decision no. 2 (see Relevant Domestic Law
above), the applicant could not complain about his detention under
Chapter 25 of the Civil Code.
Lastly,
the applicant argued that he had on several occasions attempted to
obtain review of his detention but his attempts had not produced any
meaningful results.
B. The Court’s assessment
1. Admissibility
The
Government submitted that the applicant had failed to exhaust
domestic remedies and had not complied with the six-month requirement
in respect of his complaints under Article 5 of the Convention.
The
Court considers that issues of exhaustion of domestic remedies and
compliance with the six-month rule are closely linked to the merits
of the applicant’s complaint under Article 5 of the Convention.
Therefore, it finds it necessary to join the Government’s
objection to the merits of those complaints.
The
Court further notes that the complaints under Article 5 §§
1 and 4 are not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It considers that they are not
inadmissible on any other grounds and 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
Government argued, without providing any further details, that the
applicant had not challenged, by way of supervisory review, the
detention orders of 7 August and 16 September 2008 and the failure of
the Supreme Court to examine his written request for release lodged
on 8 June 2009. In this connection the Court reiterates that,
according to its constant practice, an application for supervisory
review is not a remedy to be used for the purposes of Article 35 §
1 of the Convention (see Berdzenishvili v. Russia (dec.),
no. 31697/03, 29 January 2004; Shulepov v. Russia,
no. 15435/03, § 23, 26 June 2008; and, in the context
of Article 5, Nazarov v. Russia,
no. 13591/05, § 94, 26 November 2009). Given that
the Government did not specify how the remedy referred to could have
provided the applicant with adequate preventive or compensatory
redress for the alleged breach of Article 5, the Court finds that
they failed to substantiate their claim that it was effective (see,
among other authorities, Kranz v. Poland, no. 6214/02, §
23, 17 February 2004; Skawinska v. Poland (dec.),
no. 42096/98, 4 March 2003; and Nazarov, cited above,
ibid.).
As
regards the Government’s submission concerning the applicant’s
failure to appeal against the refusal to examine his complaint of 21
January 2009, the Court is surprised that the Babushkinskiy District
Court considered a complaint that was clearly termed as a request for
release and contained explicit and numerous references to the Code of
Criminal Procedure (see paragraph 58 above) to be a civil claim and
invited the applicant to rectify shortcomings in order to lodge a
civil action, which clearly had not been the applicant’s
intention. In any event, the Government failed to demonstrate how an
appeal against that decision could have provided the applicant with a
possibility to obtain judicial review of his detention or secured him
adequate redress in respect of the alleged breach of Article 5. The
same holds true for their argument that the applicant had failed to
complain on appeal about the City Court’s failure to examine
his oral request for release in the extradition proceedings (see
paragraph 38 above).
The
Government further stated that the applicant could have complained to
the courts about his detention under section 17 of the Custody Act,
but they failed to elaborate on that assertion. In any event, the
Court has already held that the Custody Act derives from the Code of
Criminal Procedure and concerns persons suspected or accused of
criminal offences in Russia, and there is no indication that this Act
applied at the material time to persons detained pending extradition.
Hence, the Court is not certain that the remedy suggested by the
Government bore any relation to the breaches alleged (see Muminov,
cited above, § 115).
The
Government also argued that the applicant could have challenged
unspecified acts or omissions of the authorities in charge of the
remand centre under Chapter 25 of the CCP. Yet here again, they
failed to specify which alleged acts or omissions of the remand
centre the applicant was supposed to have challenged and under which
provisions of that Chapter of the CCP, and with what redress such a
complaint could have provided him.
In
the Government’s submission, it was also open to the applicant
to complain about the inaction of the prosecutors to other
prosecutors or courts under Articles 124 and 125 of the CCrP,
respectively.
In
this connection the Court notes that it has already stated that
Articles 124 and 125 of the CCrP conferred standing to complain about
the alleged infringements of rights and freedoms within criminal
proceedings solely on parties to those proceedings (see Ismoilov
and Others and Muminov, both cited above, §§
150, 115 and 127, respectively).
Moreover,
as correctly stated by the applicant, Article 124 provides for the
possibility to complain to an investigator or a prosecutor, but this
does not secure him an opportunity to obtain “judicial review”
of his detention, as required by Article 5 § 4. The Court also
does not lose sight of the fact that in its decision no. 1 the
Supreme Court explicitly excluded court-issued detention orders from
the bulk of decisions amenable to judicial review under Article 125
of the CCrP (see paragraph 84 above). Against this background and in
the absence of any examples of domestic court practice furnished by
the Government demonstrating that persons in situations similar to
that of the applicant could rely on Articles 124 and 125 of the CCrP
to obtain judicial review of their detention, the Court is unable to
consider the remedies suggested by the Government to be effective.
Lastly,
referring to Articles 108 § 11 and 109 § 8 of the CCrP, the
Government stated that it had been open to the applicant to appeal
against the detention orders of 7 August and 16 September 2008 but he
had failed to do so.
As regards the Government’s reference to
Article 109 of the CCrP, the Court emphasises that this provision
does not entitle a detainee to initiate proceedings for examination
of the lawfulness of his detention in the absence of a prosecutor’s
request for an extension of a custodial measure (see Nasrulloyev
v. Russia, no. 656/06, § 88, 11 October 2007, and Ismoilov
and Others, cited above, § 151). In this connection the
Court cannot but observe that the applicant’s attempt to obtain
review of his detention with reference to Article 109 of the CCrP was
met with a refusal to examine the issue by the Simonovskiy District
Court, which body, for unspecified reasons, not only stated that the
applicant had not grounded his complaint with any provisions of the
CCrP, but also replied to the applicant’s complaint by a
letter, thereby preventing him from appealing against its refusal to
examine the complaint through the normal channels (see paragraph 64
above).
As
to Article 108 § 11 and assuming that it provided the applicant
with an opportunity to appeal against the initial decision –
that of 7 August 2008 – to place him in custody, the Government
offered no explanation whatsoever for the fact that the decision of
16 September 2008 did not extend the term of the applicant’s
detention but authorised the preventive measure de novo,
despite the fact that the previous detention order of 7 August
2008 had never been quashed and the preventive measure had not been
varied. Bearing in mind that the domestic law appears to remain
silent on possible avenues of appeal against a second consecutive
decision to place in custody, the Court considers that the applicant
could not be required to have appealed against the decision of 16
September 2008 (ibid).
In
any event, as follows from the applicant’s submissions to the
Court, the thrust of his complaint under Article 5 § 4 is not
the issue of his initial placement in custody but rather his
inability to obtain judicial review of his detention after a certain
lapse of time (see paragraph 154 above, and compare Ismoilov and
Others, cited above, § 146). Given that the applicant
spent more than twenty months in custody, new issues affecting the
lawfulness of his detention might have arisen during that period. In
particular, the applicant sought to argue before the courts that his
detention had ceased to be lawful after the expiry of the time-limits
set in Article 109 of the CCrP. By virtue of Article 5 § 4 he
was entitled to apply to a “court” having jurisdiction to
decide “speedily” whether or not his deprivation of
liberty had become “unlawful” in the light of new factors
which emerged subsequent to the initial decision to place him in
custody (ibid). However, it follows from the considerations above
that the applicant was not afforded such an opportunity.
In these circumstances, the Court is not satisfied
that the provisions of domestic law secured the applicant’s
right to take proceedings by which the lawfulness of his detention
would be examined by a court.
Accordingly,
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, hence, 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 rejected.
It
follows that throughout the term of the applicant’s detention
pending 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
The
Court reiterates at the outset that 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
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 A. and Others, cited above, § 163).
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
... extradition” and that his detention fell under Article 5 §
1 (f). This provision does not require that the detention of a person
against whom action is being taken with a view to extradition be
reasonably considered necessary, for example to prevent his
committing an offence or fleeing. In this respect, Article 5 § 1
(f) provides a different level of protection from Article 5 § 1 (c):
all that is required under sub-paragraph (f) is that “action is
being taken with a view to deportation or extradition” (see
Ismoilov and Others, cited above, § 135, with further
references).
Whilst
it is not in dispute between the parties that the applicant’s
detention was covered by Article 5 § 1 (f), their positions
differ on the issue of whether it was “lawful” within the
meaning of that provision.
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 Mooren v.
Germany [GC], no. 11364/03, § 72,
ECHR 2009 ..., and Erkalo v. the Netherlands, 2 September
1998, § 52, Reports 1998-VI).
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 takes note at the outset of the Government’s claim that
the applicant had failed to comply with the six-month requirement in
respect of his submissions under Article 5 § 1. Referring to its
findings to the effect that the applicant had no effective remedies
to exhaust (see, in particular, paragraphs 174-177 above), the Court
observes that the detention orders of 7 August and 16 September 2008
were, indeed, issued more than six months prior to the applicant’s
application to the Court, that is 15 May 2009. At the same time it
notes that the gist of his submissions under Article 5 § 1
is not the initial decisions to place him in custody but the alleged
unlawfulness of his ensuing continued detention (see paragraph 154
above). Hence, the issue before the Court is not whether those
initial detention orders were lawful, but whether the applicant’s
detention as of 13 November 2008 and onwards was “lawful”
within the meaning of Article 5 § 1 of the Convention, that is
whether it had legal basis in the domestic law and “was carried
out in accordance with a procedure prescribed by law” (see
Mooren, cited above, §§ 76 and 82, and Eminbeyli
v. Russia, no. 42443/02, §§
43 and 46, 26 February 2009).
Accordingly,
the Court dismisses the Government’s objection concerning the
applicant’s alleged failure to comply with the six-month
requirement in respect of his complaints under Article 5 § 1.
It
will next examine whether the requirements of Article 5 § 1 were
complied with in the present case.
The
Court observes that the applicant’s complaint is threefold. He
submitted, in particular, not only that his detention was unlawful
under the domestic law, but that the quality of the law itself did
not satisfy the Convention requirements to protect him against
arbitrariness. He also claimed that the authorities had failed to
display due diligence in conducting the extradition proceedings.
As
regards the applicant’s argument concerning the “quality
of the law” in the provisions governing detention of persons
pending extradition, the Court cannot but observe that in a series of
judgments it has held that those provisions were neither precise nor
foreseeable in their application and fell short of the “quality
of law” standard required under the Convention (see, among
other authorities, Nasrulloyev, cited above, §§
76-78; Ismoilov and Others, cited above, §§ 138-140;
Ryabikin, cited above, §§ 128-130; Muminov,
cited above, §§ 121-123, and Khudyakova v. Russia,
no. 13476/04, §§ 68-74,
8 January 2009).
It
is a matter of concern for the Court that, as transpires from the
correspondence between the Ombudsman and the Prosecutor General’s
Office, the domestic authorities involved in the control and
supervision of the detention pending extradition, and, in particular,
the national courts, appear to remain in a state of uncertainty as
regards the application of the relevant legislation (see paragraphs 68
- 70 above). The Court also doubts that the Supreme Court’s
latest Directive Decision of 29 October 2009 clarified the situation
in respect of persons who are in the applicant’s position
since, in the submission of the Deputy Prosecutor General, it
concerned only persons in respect of whom the extradition check was
pending, which was not the applicant’s case (see paragraph 67
above). In any event, the Court will not dwell upon this issue
because it considers that there has been a violation of Article 5 §
1 for the following reasons.
Having
regard to the circumstances of the present case, the Court observes
that the applicant was arrested on 5 August 2008 pursuant to an
arrest warrant issued by a Tajik court (see paragraphs 16 and 19
above). On 7 August 2008, following the Tajik authorities’
request for his extradition, the Nagatinskiy District Court of Moscow
ordered the applicant’s placement in custody, with reference,
among other things, to Article 108 of the CCrP and Article 61 of the
Minsk Convention (see paragraph 91 above).
It
is further noted that on 11 September 2008, that is within the
forty-day time-limit laid down in Article 62 § 2 of the Minsk
Convention, the Tajikistani General Prosecutor’s Office
submitted a formal request for the applicant’s extradition.
Lastly, on 16 September 2008, the Simonovskiy District Court of
Moscow ordered, yet again, the applicant’s placement in custody
pending extradition, referring to Article 466 § 1 of the CCrP
and Article 60 of the Minsk Convention and the fact that the Tajik
authorities had meanwhile submitted a formal extradition request. No
further extensions of the applicant’s detention followed until
his release on 23 April 2010, that is twenty months and seventeen
days after he was placed in custody.
Accordingly,
as the Court has outlined in paragraph 186 above, the issue which
arises in the present case is whether, from 13 November 2008
onwards, the applicant’s detention had a basis in domestic law
and was carried out “in accordance with a procedure prescribed
by law”. In other words, the question is whether the initial
judicial authorisation of his detention was sufficient to hold him in
custody for any period of time – no matter how long –
until a decision on the extradition request had been reached, or
whether the detention was to be reviewed at regular intervals (see
Nasrulloyev, cited above, § 73).
The
Government argued that the term of the applicant’s detention
was governed by Article 109 of the CCrP, which permits up to twelve
months’ detention in cases concerning serious crimes. At the
same time, to be considered “lawful” within the meaning
of Article 109 § 2 of the CCrP, detention exceeding two months
necessitates judicial authorisation.
In
this connection the Court notes that, although in the time span from
7 August to 16 September 2008 the applicant was not released and the
preventive measure in respect of him was not varied, both detention
orders were termed as “decisions to place the applicant in
custody”. In this respect the Court is, moreover, perplexed by
the fact that, whilst both sets of proceedings concerned the issue of
the applicant’s detention pending extradition, the first
detention order referred to Article 108 of the CCrP, regulating
detention of suspects and accused persons pending criminal
proceedings against them, and the second, to Article 466 § 1,
specifically concerning persons detained pending extradition. Even
assuming that the Nagatinskiy District Court applied Article 108 of
the CCrP, as construed by the Constitutional Court’s decision
of 4 April 2006 (see paragraph 78 above), it remains not entirely
clear why the subsequent detention order contained no reference to
the provisions of Chapter 13 of the CCrP and was based solely on
Article 466 § 1.
It
is therefore unclear whether the decision of 16 September 2008
extended the applicant’s detention but failed to mention
Article 108 of the CCrP or, in the alternative, chose this preventive
measure de novo, following the receipt of the formal
extradition request, which appears, to some extent, to be supported
by the court’s reasoning (see paragraph 57 above). In the
absence of any explanation by the Government on this matter and
bearing in mind their submission that the applicant’s detention
was covered by Articles 108 and 109 of the CCrP, the Court is
uncertain how the time-limits mentioned in Article 108 of the CCrP
(see paragraph 74 above) were to be calculated in the applicant’s
case – an issue which is capital for determining whether, as of
13 November 2008, his detention was compatible with the requirements
of Article 5.
In
any event, even assuming that the second detention order extended the
applicant’s detention before it exceeded two months, as
required by Article 109 of the CCrP, – a hypothesis which is
favourable to the Government –, there was no further judicial
decision on extension of the term of detention from then on, that is
for the following nineteen months and 6 days.
In
the absence of any domestic court decision extending the applicant’s
detention, the Court is bound to conclude that after 4 February 2009,
that is six months after the date of the applicant’s placement
in custody, the applicant was detained in breach of the provisions of
Article 109 § 2 of the CCrP. Accordingly, the applicant’s
detention pending extradition cannot be considered “lawful”
for the purposes of Article 5 § 1 of the Convention.
Lastly,
the Court would like to stress that it is perplexed by the
Government’s assertion that the domestic authorities had been
obliged to hold the applicant in custody because it had indicated to
them under Rule 39 of the Rules of Court to suspend his extradition.
It emphasises that it has already held that this argument cannot be
employed as a justification for the indefinite detention of persons
without resolving their legal status (see Ryabikin, cited
above, § 132). It also notes that the Russian ombudsman took the
same position when drawing the Prosecutor General’s attention
to the irregularities in the legal basis of the applicant’s
detention (see paragraph 69 above).
Having
regard to these findings, the Court does not consider it necessary to
examine the remainder of the parties’ submissions under Article
5.
There
has therefore been a violation of Article 5 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant complained under Article 6 § 2 of the Convention that
the wording of the Prosecutor General’s and the Moscow City
Court’s decisions on his extradition violated his right to be
presumed innocent. Article 6 § 2 reads:
“ Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
A. Submissions by the parties
The
Government argued that the impugned decisions clearly stated that the
applicant was charged with having committed certain crimes and that
his extradition was sought with a view to prosecuting him on those
charges. Moreover, the authorities explicitly stated that the issue
of the applicant’s criminal responsibility for the crimes for
which his extradition was being sought was to be decided only by the
courts of the requesting country.
The applicant submitted that in stating that his
actions were “punishable under the Russian criminal
legislation” the Russian authorities had declared him guilty
before trial, which was further proved by the reply of the Russian
Prosecutor General’s Office of 30 December 2009, stating that
it “had granted their Tajikistani counterpart’s request
for the applicant’s extradition with a view to prosecuting him
in connection with his participation in a prohibited religious
organisation”. In the applicant’s opinion, the wording
used by the Russian authorities was even capable of influencing the
Tajik courts.
B. The Court’s assessment
The
Court reiterates that Article 6 § 2, in its relevant aspect, is
aimed at preventing the undermining of a fair criminal trial by
prejudicial statements made in close connection with those
proceedings. Where no such proceedings are, or have been in
existence, statements attributing criminal or other reprehensible
conduct are relevant rather to considerations of protection against
defamation and adequate access to court to determine civil rights and
raising potential issues under Articles 8 and 6 of the Convention
(see Zollmann v. the United Kingdom (dec.), no. 62902/00,
20 November 2003).
The
presumption of innocence enshrined in paragraph 2 of Article 6 is one
of the elements of the fair criminal trial that is required by
paragraph 1 (see Allenet de Ribemont v. France, 10
February 1995, § 35, Series A no. 308). It prohibits the
premature expression by the tribunal itself of the opinion that the
person “charged with a criminal offence” is guilty before
he has been so proved according to law (see Minelli v.
Switzerland, 25 March 1983, § 37, Series A no. 62) but also
covers statements made by other public officials about pending
criminal investigations which encourage the public to believe the
suspect guilty and prejudge the assessment of the facts by the
competent judicial authority (see Allenet de Ribemont, cited
above, § 41, and Butkevičius v. Lithuania, no.
48297/99, § 49, ECHR 2002-II).
The
Court has already found that Article 6 § 2 of the Convention is
applicable where extradition proceedings are a direct consequence,
and the concomitant, of the criminal investigation pending against an
individual in the receiving State (see Ismoilov and Others,
cited above, § 164) and sees no reason to depart from this
approach in the present case.
The
Court further reiterates that the presumption of innocence will be
violated if a judicial decision or a statement by a public official
concerning a person charged with a criminal offence reflects an
opinion that he is guilty before he has been proved guilty according
to law (see Garycki v. Poland, no. 14348/02, § 66, 6
February 2007).
A
fundamental distinction must be made between a statement that someone
is merely suspected of having committed a crime and a clear
declaration, in the absence of a final conviction, that an individual
has committed the crime in question. The Court has consistently
emphasised the importance of the choice of words by public officials
in their statements before a person has been tried and found guilty
of a particular criminal offence (see Böhmer v. Germany,
no. 37568/97, §§ 54 and 56, 3 October 2002; Nešťák
v. Slovakia, no. 65559/01, §§ 88 and 89, 27 February
2007; and Khuzhin and Others v. Russia, no. 13470/02, §
94, 23 October 2008). Whether a statement of a public official is in
breach of the principle of the presumption of innocence must be
determined in the context of the particular circumstances in which
the impugned statement was made (see Daktaras v. Lithuania,
no. 42095/98, § 43, ECHR 2000-X, and A.L. v. Germany,
no. 72758/01, § 31, 28 April 2005).
Turning
to the circumstances of the present case, the Court notes at the
outset that the applicant specifically complained about the
statements that his “actions were punishable” under the
Russian criminal legislation and it will accordingly focus its
analysis on those particular statements.
It
is pointed out that the extradition order of 30 December 2008, as
well as the ensuing court decisions, stated that “[t]he actions
of [Mr] A. Gaforov are punishable under the Russian
criminal law and correspond to Articles 210 ..., 278 ..., 280 ...,
282 § 2 (c) ..., ... 205 § 1” (see paragraphs 24, 37
and 41 above). At the same time, the Court notes that in all of the
impugned decisions this phrase was preceded by statements clearly
saying that the applicant was charged with those crimes, relating to
his alleged participation in Hizb ut-Tahrir and his escape from
custody, in respect of which his extradition was being sought
(ibid.). Moreover, both the City Court and the Supreme Court
specifically emphasised that the issue of the applicant’s guilt
in respect of the crimes with which he had been charged in Tajikistan
could only be assessed by the courts of the requesting country
(ibid.).
In
sum, although the wording employed by the Prosecutor General’s
Office and the courts may be considered rather unfortunate, the Court
is satisfied that those authorities were referring not to the
question whether the applicant’s guilt had been established by
the evidence – which was clearly not the issue to be determined
in the extradition proceedings – but to whether there were
legal grounds for extraditing the applicant to the requesting
country.
In
the Court’s opinion, the same holds true for the phrase in the
Prosecutor General Office’s letter of 30 December 2009 referred
to by the applicant (see paragraph 205 above).
In
these circumstances, the Court considers that the wording of the
extradition order, the ensuing court decisions and the letter of 30
December 2009 did not amount to a declaration of the applicant’s
guilt in breach of the presumption of innocence (see, by contrast,
Ismoilov and Others, cited above, § 168).
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
IV. 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 15,000 euros (EUR) in respect of non pecuniary
damage.
The
Government submitted that the applicant’s claims were
excessive. In the alternative, they argued that, should the Court
find a breach of the Convention, the finding of a violation would be
sufficient.
The
Court notes that it has found a combination of violations in the
present case and accepts that the applicant has suffered
non-pecuniary damage which cannot be compensated for solely by the
findings of violations. The Court therefore finds it appropriate to
award the applicant EUR 15,000 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed 90,000 Russian roubles (RUB) (approximately
EUR 2,225) in respect of his representation by Mr A. Gaytayev
and Ms R. Magomedova in the domestic proceedings, submitting,
among other things, copies of the related agreements and invoices
confirming that the sum in question had been paid. He further
claimed, with reference to Mr A. Gaytayev’s and Ms E.
Ryabinina’s timesheets, EUR 1,800 for his representation by Mr
A. Gaytayev before the Court, as well as EUR 2,800 for his
representation by Ms E. Ryabinina, each lawyers’ hourly rate
being set at EUR 100. Lastly, the applicant claimed postal and
administrative costs in the amount of EUR 477.
The
Government submitted that the costs and expenses claimed by the
applicant were unnecessary and unreasonable, without providing any
further details.
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 documents in its possession and the above criteria, the Court
awards the applicant EUR 6,825 in respect of costs and expenses.
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 domestic remedies and
non-compliance with the six month requirement regarding the
applicant’s complaints under Article 5 of the Convention, and
rejects it;
Declares the complaints under Articles 3, 5 §§
1 and 4 and Article 13 of the Convention admissible and the remainder
of the application inadmissible;
Holds that, if the order to extradite the
applicant to Tajikistan were to be enforced, there would be a
violation of Article 3 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
5 § 1 of the Convention;
Holds that no separate issue arises under
Article 13 of the Convention in respect of the alleged violation of
Article 3 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, the following amounts, plus any tax that may be
chargeable, to be converted into Russian roubles at the rate
applicable at the date of settlement:
(i) EUR
15,000 (fifteen thousand euros) in respect of non pecuniary
damage, and
(ii) EUR
6,825 (six thousand eight hundred and twenty-five euros) in respect
of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Andre Wampach Christos Rozakis
Deputy Registrar President
