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KHODZHAYEV v. RUSSIA - 52466/08 [2010] ECHR 659 (12 May 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/659.html
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[2010] ECHR 659
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FIRST
SECTION
CASE OF KHODZHAYEV v. RUSSIA
(Application
no. 52466/08)
JUDGMENT
STRASBOURG
12 May
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 Khodzhayev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 52466/08) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Tajikistani national, Mr Zikrullokhon
Ismatulloyevich Khodzhayev (“the applicant”), on 31
October 2008.
The
applicant was represented by Mr D. Lomakin, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr G.
Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
On 3 November 2008 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.
On
17 December 2008 the President of the First Section decided
to apply Rule 41 of the Rules of Court and to grant priority
treatment to the application and 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1977 and lives in Khunzhand, Tajikistan. He is
currently residing in Moscow.
A. The applicant's account of events
1. Background to the case
The
applicant is a practising Muslim. He states that he has not been a
member of any political organisations, including Hizb ut-Tahrir
(“HT”), an Islamic organisation banned in Russia, Germany
and some Central Asian republics, but has nonetheless been persecuted
by the Tajikistani authorities on account of presumed membership of
that organisation.
By
a decision of 22 June 2000 the Ministry of Security of Tajikistan
instituted criminal proceedings against the applicant on account of
his membership of “the illegal extremist-religious party 'Hizb
ut-Tahrir'”. The decision stated that the applicant had
committed a number of serious and particularly serious crimes,
namely, incitement to overthrow the political regime in Tajikistan
and dissemination of material containing incitement to religious
hatred. On the same date the Ministry of Security of Tajikistan
placed the applicant on a search list, drew up an arrest warrant in
his name and suspended the investigation because the applicant's
whereabouts were unknown.
The
applicant fled to Moscow in 2001.
Between
27 October and 7 December 2001 the applicant was kept in detention in
Russia with a view to his extradition. He was subsequently released
because no formal request for his extradition was received.
The
applicant registered his place of residence in Russia with the
relevant authorities.
2. Extradition proceedings
On
28 November 2007 the applicant was arrested by servicemen of the
Moscow Department of the Federal Security Service and police of the
Odintsovo District.
In
the morning of 30 November 2007 the applicant was questioned in the
absence of a lawyer. The servicemen who carried out the interview
threatened to use violence against the applicant and his family
unless he voluntarily agreed to leave Russia for Tajikistan.
According to the applicant, he was not informed of the reasons for
his arrest in the course of the interview. Neither did he have access
to a lawyer during the two following weeks in detention.
On
30 November 2007 the Odintsovo Town Court of the Moscow Region (“the
Town Court”) ordered the applicant's placement in custody
pending his extradition. The term of detention was not specified.
Between
30 November 2007 and 30 January 2008 the applicant was kept in a
temporary detention facility of the Odintsovo District Department of
the Interior. In the meantime his wife was expelled to Tajikistan.
On
21 December 2007 the Prosecutor General of Tajikistan sent a request
for the applicant's extradition to the Prosecutor General of Russia
and enclosed a copy of the decision of 22 June 2000 to charge the
applicant with membership of a proscribed organisation and copies of
the search and arrest warrants.
On
4 June 2008 the Deputy Prosecutor General of Russia ordered the
applicant's extradition to Tajikistan to face criminal prosecution.
The order stated that the applicant had been charged with membership
of a proscribed religious-extremist organisation and dissemination of
material containing incitement to religious hatred.
The
applicant challenged the extradition order of 4 June 2008 in court.
On 22 August 2008 the Moscow
City Court upheld the order of 4 June 2008. It reasoned that
there were no legal grounds impeding the applicant's extradition to
Tajikistan because the applicant was a Tajik national and his request
for political asylum had been rejected. The applicant's claims that
he was not guilty of the crimes of which he had been charged had been
examined and dismissed “on the ground that issues of
falsification of charges in his respect by law-enforcement agencies
of Tajikistan [were] not subject to examination in the course of
[that] court hearing”. It further stated that allegations of
persecution on religious grounds had not been confirmed by reliable
evidence, and concluded as follows:
“[Mr] Khodzhayev does not have refugee status in
the Russian Federation, has not been and is not being persecuted on
grounds of his race, religion, citizenship, nationality or
association with a particular group [and] has not applied for Russian
citizenship or political asylum.”
On 28 October 2008 the Supreme
Court of Russia examined an appeal by the applicant against the
judgment of 22 August 2008 and dismissed it, reproducing the
reasoning of the Moscow City Court verbatim.
3. Asylum proceedings
On
11 January 2008 the applicant lodged a request for political asylum
with the Moscow Department of the Federal
Migration Service (“the Moscow FMS”).
On
11 January 2008 the applicant requested protection from the Russian
Office of the United Nations High Commissioner for Refugees (“the
UNHCR Office”). It appears that UNHCR Office staff were not
allowed to visit the applicant over the following months.
On
16 May 2008 the Moscow FMS refused to grant the applicant political
asylum. On an unspecified date the applicant was notified of that
decision.
The
applicant challenged the Moscow FMS's decision of 16 May 2008 in
court. On an unspecified date the Zamoskvoretskiy District Court of
Moscow refused to admit the applicant's statement of claim because he
had failed to pay the court fee. The applicant appealed.
On
18 November 2008 the Moscow City Court quashed the decision of the
Zamoskvoretskiy District Court of Moscow and ordered it to admit the
applicant's statement of claim with no court fee. It appears that the
proceedings challenging the Moscow FSM's decision are now pending
before the Zamoskvoretskiy District Court of Moscow.
On
26 November 2008 UNHCR Office staff interviewed the applicant.
B. The Government's account of events
1. Background to the case
On
22 June 2000 an investigator from the Tajik Ministry of Security,
having obtained a prosecutor's approval, issued an arrest warrant in
respect of the applicant.
In
July 2001 the applicant arrived in Russia illegally looking for
well-paid employment. During the following six years the applicant
filed no request to register himself as a temporary resident with
Russian migration offices. Neither did he lodge a request for asylum.
The applicant did not have a migration card.
On
27 October 2001 the applicant was arrested in Moscow pursuant to
Article 61 of the Minsk Convention as a person put on an
international wanted list.
On
7 December 2001 the applicant was released from custody because no
request for his extradition had been received.
On
19 February 2002 the Tajik Prosecutor General's Office requested the
Russian Prosecutor General's Office to extradite the applicant.
On
27 February 2002 the Russian police were instructed to search for the
applicant.
2. Extradition proceedings
On
28 November 2007 the applicant was arrested by servicemen of the
Federal Security Service and the police.
On the same date the applicant was questioned by an
official of the Odintsovo prosecutor's office. The written statement
signed by the applicant certified that he was fluent in Russian and
did not need an interpreter. The statement reads, in so far as
relevant, as follows:
“... I am aware of the fact that my name has been
put on a wanted list in Tajikistan. I cannot give any details
concerning the criminal case against me in Tajikistan. The
investigative documents from Tajikistan that I have been provided
with contain my personal data but I did not commit the crimes
mentioned in them. I cannot submit more information on the substance
of the criminal case against me.
... I am not being persecuted in Tajikistan for
political reasons. I am a Tajik national and I have not applied for
political asylum or refugee status to any agencies, consulates,
embassies or representative offices.”
On 30 November 2007 the Town Court held the hearing
and examined the Odintsovo prosecutor's office's request to authorise
the applicant's placement in custody pending extradition. The request
that mentioned the fact that the applicant had been suspected of
serious and particularly serious crimes in Tajikistan was read out in
the courtroom. In the document entitled “Decision concerning
the choice of custodial detention as a preventive measure” the
Town Court observed that the applicant was suspected of creating a
criminal organisation, inciting to racial and religious hatred and
calling for the overthrow of the Tajik constitutional regime and
ordered the applicant's placement in custody pursuant to the Minsk
Convention and Article 108 of the CCP. The Town Court reasoned that
the applicant was a foreign national, had no permanent employment or
place of residence and, unless detained, might abscond, continue his
illegal activities or interfere with the course of criminal
proceedings. The applicant was advised of his right to appeal against
the decision before the Moscow Regional Court within three days.
On
24 December 2007 the Tajik Prosecutor General's Office requested the
Russian Prosecutor General's Office to extradite the applicant as a
person charged with terrorism-related crimes.
On 28 December 2007 the Town Court ordered the
applicant's placement in custody pending extradition pursuant to
Articles 108 and 466 of the CCP. The document was entitled “Decision
concerning the choice of custodial detention as a preventive
measure”. The applicant was advised of his right to appeal
against the decision before the Moscow Regional Court within three
days.
The
applicant did not appeal against the Town Court's decisions of 30
November and 28 December 2007.
On 11 January 2008 the applicant argued for the first
time that in Tajikistan he had been persecuted on political grounds
in his letters to the UNHCR Office and the Moscow FMS.
On
4 June 2008 the Russian Deputy Prosecutor General granted the Tajik
Prosecutor General's Office's request and ordered the applicant's
extradition. The applicant was advised of his right to appeal against
the order within ten days.
On
28 July 2008 the applicant appealed against the extradition order.
On
5 August 2008 the Moscow FMS received the applicant's request for
temporary asylum.
On
22 August 2008 the Moscow City Court dismissed the applicant's appeal
against the extradition order.
On
27 August 2008 the applicant appealed against the judgment of 22
August 2008.
On
28 October 2008 the Russian Supreme Court dismissed the applicant's
appeal and upheld the judgment of 22 August 2008. On 13 November
2008 the applicant was served with the appeal court's decision.
3. Asylum proceedings
On
24 January 2008 the Russian Prosecutor General's Office received the
applicant's counsel's request to allow UNHCR Office staff to visit
the applicant. A request made by the UNHCR Office reached the Russian
Prosecutor General's Office only on 23 July 2008. The request did not
contain the personal details of the staff in question. As soon as
those details had been communicated by the UNHCR Office, the Russian
Prosecutor General's Office issued a permit to visit the applicant.
On
an unspecified date the UNHCR Office informed the prosecutor's office
of the Moscow Region that the applicant was eligible for
international protection.
On
26 February 2008 the applicant requested the Moscow FMS to grant him
refugee status.
On
20 March 2008 officials of the Moscow FMS visited the applicant in
the remand prison and interviewed him.
The
applicant was provided with ample opportunities to substantiate his
fears of persecution in Tajikistan. He was interviewed by State
officials in this respect on several occasions.
On
16 May 2008 the Moscow FMS, having thoroughly studied the applicant's
request, dismissed it and refused to declare the applicant a refugee.
The applicant appealed against that decision.
On
3 July 2008 the Zamoskvoretskiy District Court of Moscow refused to
admit the applicant's appeal against the Moscow FMS's decision of 16
May 2008 and invited the applicant to eliminate the discrepancies in
his appeal by 18 July 2008.
On
25 August 2008 the Zamoskvoretskiy District Court of Moscow ruled
that the applicant's appeal against the Moscow FMS's decision should
not be examined because the applicant had failed to eliminate the
discrepancies referred to in the ruling of 3 July 2008.
On
26 November 2008 the applicant's request for temporary asylum was
dismissed.
On
18 November 2008 the Moscow City Court quashed the ruling of 25
August 2008 and remitted the matter for fresh examination at first
instance.
On
12 March 2009 the Zamoskvoretskiy District Court of Moscow dismissed
the applicant's appeal against the Moscow FMS's decision of 16 May
2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure (CCP)
Chapter 13 of the CCP governs the application of
preventive measures. Placement in custody is a preventive measure
applied on the basis of a court decision to a person suspected of or
charged with a crime punishable with at least two years' imprisonment
where it is impossible to apply a more lenient preventive measure
(Article 108 § 1). A request for placement in custody should be
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 (Article 109 § 2). Further extensions up to twelve months
may be granted on an investigator's request approved by a prosecutor
of the Russian Federation only if the person is charged with serious
or particularly serious criminal offences (Article 109 § 3).
Chapter 16 of the CCP lays down the procedure by which
acts or decisions of a court or public official involved in criminal
proceedings may be challenged. Acts or omissions of a police officer
in charge of the inquiry, an investigator, a prosecutor or a court
may be challenged by “parties to criminal proceedings” or
by “other persons in so far as the acts and decisions [in
question] touch upon those persons' interests” (Article 123).
Those acts or omissions may be challenged before a prosecutor
(Article 124). Decisions taken by police or prosecution
investigators or prosecutors not to initiate criminal proceedings, or
to discontinue them, or any other decision or inaction capable of
impinging upon the rights of “parties to criminal proceedings”
or of “hindering an individual's access to court” may be
subject to judicial review (Article 125).
Upon receipt of a request for extradition not
accompanied by an arrest warrant issued by a foreign court, the
Prosecutor General or his deputy is to decide on the measure of
restraint in respect of the person whose extradition is sought. The
measure of restraint is to be applied in accordance with the
established procedure (Article 466 § 1).
B. 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 CCP 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 CCP on preventive measures, were fully applicable to
detention with a view to extradition. Accordingly, Article 466 of the
CCP did not allow the authorities to apply a custodial measure
without complying with the procedure established in the CCP, or in
excess of the time-limits fixed therein.
2. Decision of the Constitutional Court no. 158-O of 11
July 2006 on the Prosecutor General's request for clarification
The
Prosecutor General asked the Constitutional Court for an official
clarification of its decision no. 101-O of 4 April 2006 (see above),
for the purpose, in particular, of elucidating the procedure for
extending a person's detention with a view to extradition.
The
Constitutional Court dismissed the request on the ground that it was
not competent to indicate specific criminal-law provisions governing
the procedure and time-limits for holding a person in custody with a
view to extradition. That was a matter for the courts of general
jurisdiction.
3. Decision of the Constitutional Court no. 333-O-P of
1 March 2007
In
this decision the Constitutional Court reiterated that Article 466 of
the CCP did not imply that detention of a person on the basis of an
extradition request did not have to comply with the terms and
time-limits provided for in the legislation on criminal procedure.
C. Decision of the Supreme Court
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 activity in the territory of Russia. It held in
relation to HT that it 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.
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 rights 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:
“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...,
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 ...
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).
The 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
Conclusions and Recommendations: Tajikistan, issued by
the UN Committee Against Torture on 7 December
2006 (CAT/C/TJK/CO/1), refer to 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.”
Amnesty International in its document
“Central Asia: Summary of Human Rights Concerns: March 2007 –
March 2008” describes the situation regarding freedom of
religion in Tajikistan as follows:
“Members of religious minorities
and human rights defenders were concerned that decisions taken by the
authorities restricted freedom of religion and belief. During the
second half of 2007 unregistered mosques were closed down or
demolished in the capital, Dushanbe. ... A
proposed new law on religion raised fears that unregistered religious
activity would be banned. The draft law proposed stringent
registration requirements which would make it very difficult for
religious minorities to apply or re-apply for legal status. It also
proposed to limit the number of registered places of worship and to
ban missionary activity. Pending the adoption of the new law the
government was not accepting new applications for legal status from
religious groups.
...
In November [2007] the UN Special
Rapporteur on freedom of religion or belief, Asma Jahangir, published
a report on her visit to Tajikistan earlier in the year. The report's
conclusions emphasized the “need to devise educational policies
aimed at strengthening the promotion and protection of human rights
and eradicating prejudices, which are incompatible with the freedom
of religion or belief”. The conclusions also stressed that
registration procedures for religious groups should be
straightforward and that “[r]egistration should not be a
precondition for practising one's religion”. The Special
Rapporteur recommended that the Tajikistani authorities ensure that
“any measure taken to combat acts of terrorism complies with
their obligations under international law, in particular
international human rights law, refugee law and humanitarian law.”
She stressed that “an independent, neutral and impartial
judiciary and prompt access to a lawyer [were] vital to safeguarding
also the freedom of religion or belief of all individuals and
religious communities”.
The World Report Chapter: Tajikistan by Human Rights
Watch, released in January 2009, describes the human-rights situation
in the country as follows:
“Religious Freedom
At this writing, the government had not yet sent to
parliament a controversial draft law on religion that had been
sharply criticized in 2007. Under the draft law, all religious groups
must reregister and meet such onerous conditions as providing the
address of any person who, at any point during the past 10 years, has
been a member. The draft also prohibits foreigners from chairing
religious organizations.
...
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)”.
The 2008 US Department of State Country Report on
Human Rights Practices, released on 25 February 2009, provides the
following information in relation to Tajikistan:
“Tajikistan ...
is an authoritarian state, and political life is dominated by
President Emomali Rahmon and his supporters...
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;
threats and abuse by security forces; impunity of security forces;
lengthy pretrial detention; denial of right to fair trial; harsh and
life-threatening prison conditions; prohibited international monitor
access to prisons; ... restrictions on freedom of religion, including
freedom to worship; ...
The law prohibits ...
practices [of torture and other cruel, inhuman, or degrading
treatment or punishment]; however, security officials reportedly
employed them. Officials did not grant sufficient access to
information to allow human rights organizations to investigate claims
of torture.
Security officials, particularly from
the Ministry of Interior (MOI), continued to use beatings or other
forms of coercion to extract confessions during interrogations.
Beatings and other mistreatment were common also in detention
facilities. A 2008 study by the Bureau for Human Rights and Rule of
Law, a local NGO, credibly found a bias in the criminal justice
system toward law enforcement officials exacting confessions from
those who are arrested. Articles in the criminal code do not
specifically define torture, and the country's law enforcement
agencies have not developed effective methods to investigate possible
violators.
...
The Ministry of Justice (MOJ) continued
to refuse 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 they were accompanied by ministry of justice personnel. The
government has not signed an agreement with the International
Committee for the Red Cross (ICRC) to allow free and unhindered
access to prisons and detention centers, and ICRC's
international monitoring staff has not returned to the country since
departing in 2007.
During the year detainees and inmates complained of
harsh and life-threatening conditions, including overcrowding and
lack of sanitary conditions. Disease and hunger were serious
problems, but outside observers were unable to assess accurately the
extent of the problems because of lack of access. Organizations that
work on prison issues reported that infection rates of tuberculosis
and HIV was significant, and that the quality of medical treatment
was low.
...
The government has not substantially
altered the Criminal Procedure Code (CPC) since the Soviet period,
and the criminal justice system failed to protect individuals from
arbitrary arrest or detention. There were few checks on the power of
prosecutors and police to make arrests.
...
Victims of police
abuse may submit a formal complaint in writing to the officer's
superior. However, most victims chose to remain silent rather than
risk retaliation by the authorities.
...
Prosecutors are empowered to issue arrest warrants, and
there is no requirement for judicial approval of an order for
pretrial detention. The law allows police to detain a suspect without
a warrant in certain circumstances, but a prosecutor must be notified
within 24 hours of arrest. Pretrial detention may last up to 15
months in exceptional circumstances. Local prosecutors may order
pretrial detention for up to two months; subsequent detentions must
be ordered by progressively higher level prosecutors. A defendant may
petition for judicial review of a detention order. However, judges
rarely questioned detention decisions, and observers regarded this
review as a formality.
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 did
not always provide attorneys, and those it did provide generally
served the government's interest, not the client's. There is no bail
system, although criminal case detainees may be released
conditionally and restricted to their place of residence pending
trial. According to the law, family members are allowed access to
prisoners only after indictment; officials occasionally denied
attorneys and family members access to detainees. The authorities
held many detainees incommunicado for long periods without formally
charging them.
...
Although the law provides for an independent judiciary,
in practice the executive branch and criminal networks exerted
pressure on prosecutors and judges. Corruption and inefficiency were
significant problems.
The C[ode of Criminal Procedure] gives
the prosecutor a disproportionate degree of power in relation to
judges and defense advocates. This power includes control of the
formal investigation and oversight of the entire case proceedings.
"Supervisory powers" provided by law allow prosecutors to
protest a court decision outside of normal appeal procedures.
Prosecutors effectively can cause court decisions to be annulled and
reexamined by higher courts indefinitely after appeal periods have
expired. These powers are an impediment to establishing an
independent judiciary.
The president is empowered to appoint and dismiss judges
and prosecutors with the consent of parliament. Judges at all levels
often were poorly trained and had extremely limited access to legal
reference materials. Low wages for judges and prosecutors left them
vulnerable to bribery, which remained a common practice. Judges were
subject to political influence.
Trials are public, except in cases
involving national security. The authorities have denied access to
monitoring organizations to trials without cause. A panel consisting
of a presiding judge and two "people's assessors"
determines guilt or innocence. Qualifications of the assessors and
how they are determined is unclear, but their role is passive, and
the presiding judge dominates the proceedings.
According to the law, cases should be brought before a
judge within 28 days after indictment; however, most cases were
delayed for months. Under the law, courts appoint attorneys at public
expense; however, in practice authorities often denied arrested
persons access to an attorney.
Those who were indicted were invariably
found guilty. Judges often gave deference to uncorroborated testimony
of law enforcement officers, especially members of the [Ministry of
Security], and often discounted the absence of physical evidence.
According to the law both defendants and
attorneys have the right to review all government evidence, confront
and question witnesses, and
present evidence and testimony. No groups are barred from testifying,
and, in principle, all testimony receives equal consideration. The
law provides for the right to appeal. The law extends the rights of
defendants in trial procedures to all citizens.
...
The constitution provides for freedom of religion;
however, in practice the government continued to impose restrictions
and respect for religious freedom continued to deteriorate.
The Council of Ulamo, a committee of Islamic clergy,
provides interpretations of religious practice that imams throughout
the country are required to follow. While the council is officially
an independent religious body, in practice it is heavily influenced
by the government. The Department of Religious Affairs (DRA) at the
Ministry of Culture is responsible for general regulation of all
religious organizations. The DRA, in consultation with local
authorities, registers and approves all religious places of worship.
For Muslims, the DRA controls all aspects of participation in the
hajj, including choosing participants. President Rahmon established a
Center for Islamic Studies during the year to guide religious policy.
The government continued to impose
limitations on personal conduct and to restrict activities of
religious groups that it considered "threats to national
security." ... Government officials visited mosques on a regular
basis to monitor activities, observe those who attended the mosques,
and examined audio and video materials for evidence of extremist and
antigovernment material. The DRA continued to test imams on their
religious knowledge and to ensure they followed official positions on
religious issues.
...
Government concerns about foreign
influence resulted in restrictive measures against minority religious
groups. The government continued its ban on HT
[Hizb ut Tahrir], which it
classified as an extremist Islamic political movement, and
authorities introduced restrictive measures against another Islamic
group, the Salafis. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant alleged that, if extradited to Tajikistan, he would be
subjected to ill-treatment in breach of Article 3 of the Convention.
He also claimed that the Russian authorities had failed to assess
risks of ill-treatment that he would run in the requesting country.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
1. The Government
The
Government contested the applicant's arguments.
In
their submissions, the Tajik authorities had argued that in
1998 2000 the applicant had participated in an
illegal criminal group created in order to violently overthrow the
Tajik constitutional regime and, as a member of Hizb ut-Tahrir, had
disseminated information aimed at inspiring racial and religious
hatred and had recruited new members of the illegal group.
On
14 February 2003 the Russian Supreme Court had proclaimed Hizb
ut-Tahrir a terrorist organisation and declared its activities
prohibited on the territory of the Russian Federation.
When
asked whether he had been persecuted for political reasons during the
first interview with the Odintsovo prosecutor's office on 28 November
2007, the applicant had replied in the negative and stated that he
had come to Russia to find employment.
On
20 March 2008 the applicant had stated that he had fled Tajikistan
because he had been persecuted by the Tajik Ministry of Security but
had not furnished any evidence in support of his statement. Instead,
he had claimed that his brother had been sentenced to nine years'
imprisonment because he had been a Hizb ut-Tahrir member. In the
Government's view, the applicant had been bound to be aware of
Hizb ut Tahrir activities.
The
applicant could not be persecuted for his religious practices because
Islam was the official religion of Tajikistan. Moreover, none of the
numerous religious groups in Tajikistan had been persecuted.
The
applicant had not applied for refugee status upon his arrival to
Russia or during the following six years. The Moscow FMS had reached
the conclusion, upon careful examination of his case, that the
applicant did not satisfy the refugee criteria. They had studied the
political and economic situation in Tajikistan with particular
emphasis on the functioning of the judicial and penitentiary systems
and the Tajik authorities' attitude towards Muslims.
The Tajik Prosecutor General's Office had given
diplomatic assurances to the effect that the applicant would be
prosecuted only in relation to the crimes mentioned in the
extradition request, that he would be able to leave Tajikistan freely
after standing trial and serving a sentence and that he would not be
expelled, transferred or extradited to a third State without the
Russian authorities' consent. According to the Tajik Criminal Code,
its task was to protect human rights; and a sentence applied to a
criminal could not pursue an aim of causing him or her physical
suffering or humiliating the person in question.
The
Russian Ministry of Foreign Affairs had informed the Russian
Prosecutor General's Office that there had been no reasons not to
extradite the applicant because Tajikistan, a UN member, had
undertaken to comply with the Universal Declaration of Human Rights
and that a Tajik ombudsman's office had been created. Tajikistan had
ratified the ICCPR of 1966, the Refugee Convention of 1989, the
Convention Against Torture of 1984 and other treaties. The Russian
authorities officially recognised that Tajikistan was a secular
democratic State.
The
applicant's allegations of risks of ill-treatment in Tajikistan had
not been substantiated. Accordingly, his extradition would not amount
to treatment proscribed by Article 3 of the Convention.
2. The applicant
The
applicant had informed the Russian authorities that he had feared
persecution because of his alleged involvement in Hizb ut-Tahrir's
activities. In particular, on 22 August 2008 he had informed the
Moscow City Court that in 2001 he had been told that upon his return
to Tajikistan he would be arrested. The applicant had been on a
wanted list since 2001, which was proven by the fact that on 27
October 2001 he had been detained with a view to extradition as a
person wanted in Tajikistan. The applicant stated that when
questioned by the Moscow City Court on 22 August 2008 he had not been
assisted by a lawyer and thus could not understand the legal
consequences of his statement that he had arrived in Russia to look
for employment. He also asserted that he had had a right to apply for
refugee status at any time, not necessarily immediately upon his
arrival in Russia. The applicant doubted the validity of the
diplomatic assurances given in his case. In sum, the applicant
claimed that his extradition to Tajikistan would be in breach of
Article 3 of the Convention.
B. The Court's assessment
1. Admissibility
The
Court notes that the complaint under Article 3 of the Convention is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds and must therefore be declared admissible.
2. Merits
(a) General principles
The
Court reiterates at the outset that in order to fall within the scope
of Article 3 ill-treatment must attain a minimum level of severity.
The assessment of this minimum is, in the nature of things, relative;
it depends on all the circumstances of the case, such as the nature
and context of the treatment or punishment, the manner and method of
its execution, its duration, its physical or mental effects and, in
some instances, the sex, age and state of health of the victim (see
T. v. the United Kingdom [GC], no. 24724/94, § 68,
16 December 1999). Allegations of ill-treatment must be supported by
appropriate evidence. To assess this evidence, the Court adopts the
standard of proof “beyond reasonable doubt” but adds that
such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67,
ECHR 2006 IX).
The Court further reiterates that extradition 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
person in question would, if extradited, face a real risk of being
subjected to treatment contrary to Article 3 of the Convention
in the receiving country. The establishment of such responsibility
inevitably involves an assessment of conditions in the requesting
country against the standards of Article 3 of the Convention.
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).
In
determining whether it has been shown that the applicant runs a real
risk, if extradited, of suffering treatment proscribed by Article 3,
the Court will assess the issue in the light of all the material
placed before it or, if necessary, material obtained proprio motu
(see H.L.R. v. France, 29 April 1997, § 37,
Reports of Judgments and Decisions 1997-III). 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 Cruz Varas and Others v. Sweden, 20 March
1991, §§ 75-76, Series A no. 201, and Vilvarajah
and Others v. the United Kingdom, 30 October 1991, § 107,
Series A no. 215). However, if the applicant has not been extradited
or deported when the Court examines the case, the relevant time will
be that of the proceedings before the Court (see Chahal v. the
United Kingdom, 15 November 1996, §§ 85-86,
Reports 1996-V).
In order to determine whether there is a risk of
ill-treatment, the Court must examine the foreseeable consequences of
sending the applicant to the receiving country, bearing in mind the
general situation there and his personal circumstances (see
Vilvarajah and Others, cited above, § 108 in
fine). 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
considers 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, for
example, Chahal, cited above, §§ 99-100, Müslim
v. Turkey, no. 53566/99, § 67, 26 April 2005, Said
v. the Netherlands, no. 2345/02, § 54, 5 July
2005, and Al-Moayad v. Germany (dec.), no. 35865/03, §§
65-66, 20 February 2007). 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 (see Vilvarajah and Others, cited above, § 111,
and Fatgan Katani and Others v. Germany (dec.), no.
67679/01, 31 May 2001). 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 v. Turkey [GC], nos. 46827/99 and
46951/99, § 73, ECHR 2005 I).
(b) Application of the above principles to
the present case
In
line with its case-law cited above, it is necessary to examine
whether the foreseeable consequences of the applicant's extradition
to Tajikistan are such as to bring Article 3 of the Convention into
play. Since he has not yet been extradited, owing to an indication by
the Court of an interim measure under Rule 39 of the Rules of Court,
the material date for the assessment of that risk is that of the
Court's consideration of the case.
In
the applicant's submission, his fears of possible ill-treatment in
Tajikistan are justified by two factors. First, referring to a number
of reports, the applicant argues that the general human-rights
situation in the receiving country is deplorable. Secondly, he claims
that he would personally run an even greater risk of ill-treatment
than any other person detained in Tajikistan because the Tajik
authorities suspect him of involvement in activities of
Hizb-ut-Tahrir.
The Court will accordingly first consider whether the
general political climate in Tajikistan could give reasons to assume
that the applicant would be subjected to ill-treatment in the
receiving country. It notes in this respect that, in the Government's
submission, Tajikistan respected basic human rights. However,
the Court reiterates that in cases concerning aliens facing expulsion
or extradition it is entitled to compare materials made available by
the Government with materials from other reliable and objective
sources (see Salah Sheekh v. the Netherlands, no. 1948/04,
§ 136, ECHR 2007-... (extracts), and Saadi v. Italy
[GC], no. 37201/06, § 131, 28 February 2008).
The Court points out in this respect that the evidence
from a number of objective sources undoubtedly illustrates that the
overall human-rights situation in Tajikistan gives rise to serious
concerns. For instance, the Committee Against Torture pointed out
that the Tajik law regarding prohibition of torture was not fully in
conformity with the text of the Convention Against Torture, which in
itself might raise suspicions as to the degree of protection accorded
to those alleging ill-treatment. The Committee also emphasised that
detainees were often kept in unrecorded detention without access to a
lawyer or medical assistance and that interrogation methods
prohibited by the Convention Against Torture were frequently used
(see paragraph 72 above). Amnesty International reported that
religious freedom in Tajikistan was subject to restrictions imposed
by State authorities (see paragraph 73 above). Human Rights Watch
observed that granting impunity to State officials for acts of
rampant torture was a common practice (see paragraph 74 above). The
US Department of State also reported frequent use of torture by
security officials and pointed out that the State bodies denied
unhindered access to independent observers, including employees of
the International Committee for the Red Cross, to detention
facilities (see paragraph 75 above).
The
Court is not persuaded by the Government's argument that the mere
fact of ratification by Tajikistan of major human-rights instruments
excludes the possibility that the applicant would run a risk of
ill-treatment in the requesting country. The existence of domestic
laws and accession to international treaties guaranteeing respect for
fundamental rights in principle are not in themselves sufficient to
ensure adequate protection against the risk of ill-treatment where,
as in the present case, 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 in fine). Given that the Government failed
to convincingly show that the human-rights situation in Tajikistan
had drastically improved when compared to the one described in the
aforementioned reports by reputable organisations, the Court is ready
to accept that ill-treatment of detainees is an enduring problem in
Tajikistan.
Nonetheless,
the Court points out that the above-mentioned findings attest to the
general situation in the country of destination and should be
supported by specific allegations and require collaboration by other
evidence (see Mamatkulov and Askarov, cited above, § 73).
In the same context, the Court should examine whether the authorities
assessed the risks of ill-treatment prior to taking the decision on
extradition (see Ryabikin, cited above, § 117).
The
main argument raised by the applicant under Article 3 is the
danger of ill-treatment in Tajikistan, exacerbated by the nature of
the crime that he had been charged with. The Court observes in this
respect that he was accused of involvement in the activities of Hizb
ut-Tahrir, a transnational Islamic organisation. It reiterates that
in cases where an applicant alleges that he or she is a member of a
group systematically exposed to a practice of ill-treatment, the
protection of Article 3 of the Convention enters into play when the
applicant establishes, where necessary on the basis of the
information contained in recent reports from independent
international human-rights-protection associations or governmental
sources, that there are serious reasons to believe in the existence
of the practice in question and his or her membership of the group
concerned (see Saadi, cited above, § 132). In those
circumstances, the Court will not then insist that the applicant show
the existence of further special distinguishing features if to do so
would render illusory the protection offered by Article 3 (see
Muminov v. Russia,
no. 42502/06, § 95, 11 December 2008, and
NA. v. the United Kingdom, no. 25904/07, § 116,
17 July 2008).
The applicant was wanted by the Tajik authorities on
account of his alleged involvement in the activities of Hizb
ut-Tahrir, which he consistently denied. Regard being had to the
reports by reputable organisations (see, in particular, paragraphs 73
and 75 above), the Court considers that there are serious reasons to
believe in the existence of the practice of persecution of members or
supporters of that organisation, whose underlying aims appear to be
both religious and political. The Government's reference to the fact
that the applicant did not apply for political asylum immediately
after his arrival to Russia does not necessarily refute the
applicant's allegations of risks of ill-treatment since the
protection afforded by Article 3 of the Convention is in any event
broader than that provided for in Articles 32 and 33 of the 1951
United Nations Convention relating to the Status of Refugees (see,
mutatis mutandis, Saadi, cited above, § 138).
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 of the Convention if extradited to
Tajikistan.
The
Court notes that the Government invoked assurances from the Tajik
Prosecutor General's Office to the effect that the applicant would
not be subjected to ill-treatment there (see paragraph 84 above). In
this connection it emphasises that it is entitled to examine whether
diplomatic assurances provide, in their practical application, a
sufficient guarantee that the applicant would be protected against
the risk of treatment prohibited by the Convention. The Court
observes that the assurances given in the present case were rather
vague and lacked precision; hence, it is bound to question their
value. It also reiterates that diplomatic assurances 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).
Lastly, the Court will examine the applicant's
allegation that the Russian authorities did not conduct a serious
investigation into possible ill treatment in the requesting
country. The Government accepted that on 11 January 2008, that
is, almost five months before the request for extradition was
granted, the applicant had informed the Russian migration authority
that he had been persecuted in Tajikistan on political grounds (see
paragraph 38 above). However, when examining the appeals against the
extradition order, the Moscow City Court and the Supreme Court of
Russia merely stated that the applicant's request for asylum had been
rejected and that his allegations of persecution on religious grounds
in Tajikistan had been unsubstantiated (see paragraphs 18 and 19
above). The Court is therefore unable to conclude that the Russian
authorities duly addressed the applicant's concerns with regard to
Article 3 in the domestic extradition proceedings.
The Court finds therefore that implementation of the
extradition order against the applicant would give rise to a
violation of Article 3 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The
applicant complained under Article 5 § 1 (f) of the Convention
that his ongoing detention pending extradition had been “unlawful”:
first, until 21 December 2007 he had been detained in the absence of
an official request for extradition; secondly, the term of his
detention had not been extended by the domestic courts. He also
invoked Article 5 § 2, complaining that he had not been promptly
informed of the reasons for his arrest. Lastly, he relied on Article
5 § 4 arguing, first, that his detention had not been subject to
any judicial control and, secondly, that he had been deprived of the
right to have the lawfulness of his detention reviewed by a court
owing to lack of access to a lawyer during the first two weeks of his
detention.
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.
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
...
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. The parties' submissions
1. The Government
The
Government submitted that the applicant had not exhausted domestic
remedies in respect of his complaints under Article 5 of the
Convention as he had not complained about either the alleged
unlawfulness or the length of his detention pending extradition to a
prosecutor's office or a court. They also submitted that the
applicant had not appealed against the decisions of 30 November and
28 December 2007.
The
Government further argued that the applicant's detention had been
necessary to ensure his extradition to Tajikistan and lawful under
both Russian legal provisions and international legal standards. The
issue of extradition had been examined promptly and properly.
On
28 November 2007 the official of the Odintsovo prosecutor's office
had notified the applicant of the reasons for his arrest; during the
interview the applicant had clearly stated in writing that he had not
been persecuted on political grounds and had not been a refugee.
During the following two weeks the applicant had not requested a
lawyer.
The
term of the applicant's detention pending extradition had been
compatible with the requirements of Article 109 of the CCP, which had
been applicable in the applicant's case by virtue of the
Constitutional Court's ruling of 4 April 2006. The period of
custodial detention for those accused of serious offences could not
exceed twelve months; the applicant's detention pending extradition
had lasted ten months. The term of the applicant's detention,
although not specified in the Town Court's decision of 28 December
2007, had been established by Article 62 of the Minsk Convention and
Article 109 of the CCP; therefore, in the Government's submission,
the applicant could have been detained for forty days prior to
receipt of the extradition request and for up to twelve months
pending examination of the extradition request. The applicant had had
the benefit of a procedure enabling him to challenge lawfulness of
his detention.
2. The applicant
The
applicant asserted that his placement in custody was unlawful as it
had never been extended by the domestic courts. He also maintained
his complaints under Article 5 §§ 2 and 4.
B. The Court's assessment
1. Admissibility
(a) Article 5 § 2 of the Convention
The
Court takes note of the Government's plea of non-exhaustion as
regards the applicant's complaint under Article 5 § 2 of the
Convention. However, it does not deem it necessary to examine this
matter for the following reason.
The
Court reiterates that Article 5 § 2 of the Convention contains
the elementary safeguard that any person arrested should know why he
is being deprived of his liberty. This provision is an integral part
of the scheme of protection afforded by Article 5: by virtue of
paragraph 2 any person arrested must be told, in simple,
non-technical language that he can understand, the essential legal
and factual grounds for his arrest, so as to be able, if he sees fit,
to apply to a court to challenge its lawfulness in accordance with
paragraph 4. Whilst this information must be conveyed promptly, it
need not be related in its entirety by the arresting officer at the
very moment of the arrest. Whether the content and promptness of the
information conveyed were sufficient is to be assessed in each case
according to its special features (see Fox, Campbell
and Hartley v. the United Kingdom, 30 August 1990, §
40, Series A no. 182).
The
Court further reiterates that when a person is arrested on suspicion
of having committed a crime, Article 5 § 2 neither requires that
the necessary information be given in a particular form, nor that it
consists of a complete list of the charges held against the arrested
persons (see Bordovskiy v. Russia, no. 49491/99, § 56,
8 February 2005). While it is true that insufficiency of information
of the charges held against an arrested person may be relevant for
the right to a fair trial under Article 6 of the Convention for
persons arrested in accordance with Article 5 § 1 (c), the same
does not apply to arrest with a view to extradition, as these
proceedings are not concerned with the determination of a criminal
charge (see K. v. Belgium, no. 10819/84, Commission
decision of 5 July 1984, Decisions and Reports (DR) 38, p. 230).
The
Court observes in this connection that, as can be seen from the
written statement signed by the applicant, on the day of his arrest
he studied at least some investigative documents concerning the
criminal case instituted against him in Tajikistan and claimed that
he had not committed the crimes he had been charged with (see
paragraph 33 above). In such circumstances the Court considers that
the information provided to the applicant by the Russian authorities
was sufficient to satisfy their obligation under Article 5 § 2
of the Convention (see Eminbeyli v.
Russia, no. 42443/02, § 57,
26 February 2009, and Bordovskiy, cited
above, § 57).
It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected pursuant to Article 35 § 4.
(b) Article 5 §§ 1 and 4 of the
Convention
As
regards the Government's plea of non-exhaustion, the Court considers
that the issue of exhaustion of domestic remedies is closely linked
to the merits of the applicant's complaint under Article 5 § 4
of the Convention and finds it necessary to join the Government's
objection to the merits.
The
Court further notes that the complaints under Article 5 §§ 1 and
4 of the Convention 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
Court notes at the outset that the Government did not provide
detailed information on the avenues available for challenging the
lawfulness of the applicant's detention pending extradition but
merely referred to the possibility of complaining to either a
prosecutor or a court. They also claimed that the applicant could
have appealed against the decisions of 30 November and 28
December 2007.
The
Court observes that the decisions of 30 November and 28 December
2007 were both entitled “Decision concerning the choice of
custodial detention as a preventive measure” and mentioned
Article 108 of the CCP as their legal basis. It was also indicated
that the decisions were appealable before the Moscow Regional Court
within three days of the date of their delivery (see paragraphs 34
and 36 above).
The
Court readily accepts that Article 108 § 11 of the CCP provided
the applicant with an opportunity to appeal against the initial
decision to place him in custody, that is, the decision of 30
November 2007. However, the Government offered no explanation
whatsoever for the fact that the decision of 28 December 2007 did not
extend the term of the applicant's detention but authorised the
preventive measure de novo despite the fact that the decision
of 30 November 2007 had never been quashed and the prevention measure
applied to the applicant had not been varied. The Court observes that
the domestic law remains silent on possible avenues of appeal against
a second consecutive decision to place in custody and considers that
in such circumstances the applicant could not be required to have
appealed against the decision of 28 December 2007.
In
any event, assuming that the applicant did indeed fail to exhaust
available domestic remedies regarding the decisions of 30 November
and 28 December 2007, the Court observes that it is not disputed
between the parties that the applicant spent more than ten months in
detention pending extradition proceedings. It considers that new
issues affecting the lawfulness of the detention might have arisen
during that period and that, accordingly, 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 subsequently to the decision on his
initial placement in custody (see Ismoilov and Others v. Russia,
no. 2947/06, § 146, 24 April 2008).
The Government merely stated that the applicant could
have applied to a court or a prosecutor for review of the lawfulness
of his detention, without referring to specific provisions of
domestic law. In this connection the Court reiterates that it is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, capable of providing redress in respect of the
applicant's complaints and offered reasonable prospects of success
(see Selmouni v. France [GC], no. 25803/94, § 76, ECHR
1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15,
ECHR 2002-VIII). The Court further reiterates that the domestic
remedies must be “effective” in the sense either of
preventing the alleged violation or its continuation, or of providing
adequate redress for any violation that had already occurred (see
Kudła v. Poland [GC], no. 30210/96, § 158,
ECHR-XI).
In
any event, leaving aside the issue whether the Government have shown
which particular type of complaint to a prosecutor or a court could
have offered preventive or compensatory redress for alleged
violations of Article 5 of the Convention, the Court emphasises that
it has already found on numerous occasions that the provisions of
Articles 108 and 109 of the CCP did not allow those detained with a
view to extradition to initiate proceedings for examination of the
lawfulness of the detention in the absence of a prosecutor's request
for an extension of the custodial measure (see Nasrulloyev v.
Russia, no. 656/06, § 88, 11 October 2007,
Ismoilov and Others, cited above, § 151, and Muminov,
cited above, § 114). Moreover, the Court doubts that the
provisions of Chapter 16 of the CCP for the possibility for “parties
to criminal proceedings” to challenge decisions taken in the
course of a preliminary investigation before a prosecutor (Article
124 of the CCP) or a court (Article 125 of the CCP) could have been
applicable in the applicant's case since there is no indication that
he was a party to criminal proceedings within the meaning given to
that phrase by the Russian courts (see Muminov, cited above, §
115).
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, accordingly, that these remedies lack the
requisite accessibility and effectiveness (see A. and E. Riis
v. Norway, no. 9042/04, § 41, 31 May
2007, and Vernillo v. France, 20 February 1991, § 27,
Series A no. 198). The Government's objection concerning
non exhaustion of domestic remedies must therefore be 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. In
such circumstances the Court does not need to consider separately the
applicant's additional argument concerning lack of access to a lawyer
during the first two weeks of his detention.
There
has therefore been a violation of Article 5 § 4 of the
Convention.
(b) Article 5 § 1 of the Convention
Article 5 enshrines a fundamental human right,
namely, the protection of the individual against arbitrary
interference by the State with his or her right to liberty (see Aksoy
v. Turkey, 18 December 1996, § 76, Reports 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). The parties dispute, however, whether this detention was
“lawful” within the meaning of Article 5 § 1 of the
Convention,
134. Where the “lawfulness” of detention is
in issue, including the question whether “a procedure
prescribed by law” has been followed, the Convention refers
essentially to national law and lays down the obligation to conform
to the substantive and procedural rules thereof. Compliance with
national law is not, however, sufficient: Article 5 § 1 requires
in addition that any deprivation of liberty should be in keeping with
the purpose of protecting the individual from arbitrariness (see
Erkalo v. the Netherlands, 2 September 1998, § 52,
Reports 1998-VI, and Steel and Others v. the United
Kingdom, 23 September 1998, § 54, Reports
1998-VII).
Although it is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law,
under Article 5 § 1 failure to comply with domestic law entails
a breach of the Convention and the Court can and should therefore
review whether this law has been complied with (see Benham v. the
United Kingdom, 10 June 1996, § 41,
Reports 1996-III,
Ječius v. Lithuania, no. 34578/97, § 68, ECHR
2000 IX, and Ladent v. Poland, no. 11036/03, § 47,
ECHR 2008-... (extracts)).
Turning
to the circumstances of the present case, the Court observes that the
request for the applicant's extradition was accompanied by an arrest
warrant issued by a Tajik investigator rather than by a decision of a
Tajik court. The applicant's initial placement in custody was
ordered, on 30 November 2007, by a Russian court pursuant to
Article 108 of the CCP and the provisions of the Minsk Convention
governing custodial measures.
The
Court takes note of the Government's claim that the applicant's
placement in custody was governed by Article 62 § 1 of the Minsk
Convention and observes that this provision allows for up to forty
days' custodial detention pending receipt of the official request for
extradition from the requesting country (see paragraph 71 above). The
period that elapsed between the date of the applicant's arrest and
the date of issue of the Tajik request for extradition amounts to
twenty-four days. In such circumstances the Court has no grounds on
which to conclude that the applicant's detention prior to receipt of
the Tajik authorities' official request for his extradition, that is,
between 27 November and 21 December 2007, was “unlawful”
merely owing to the lack of an official request for extradition.
However, an issue arises as to whether the judicial
authorisation of the applicant's detention given by the Town Court on
30 November 2007 was sufficient to hold the applicant in custody for
any period of time – no matter how long – until the
decision on the extradition request had been made, or whether the
detention was to be reviewed at regular intervals (see Nasrulloyev
v. Russia, no. 656/06, § 73, 11 October 2007).
In
the Government's submission, the term of the applicant's custodial
detention was governed by Article 109 of the CCP, which permits up to
twelve months' detention in cases concerning serious crimes. The
Court notes at the same time that, in order to be considered “lawful”
within the meaning of Article 109 § 2 of the CCP, custodial
detention exceeding two months necessitates further judicial
authorisation (see paragraph 56 above).
According
to the Government, the applicant's placement in custody was
authorised by the Town Court, pursuant to Article 108 of the CCP, on
30 November 2007 and then again on 28 December 2007 (see paragraphs 34
and 36 above). The Court is perplexed by the fact that the same town
court chose the same preventive measure in respect of the applicant
on two occasions within twenty-eight days, although the applicant had
not been released from custody during that period. Nonetheless, even
assuming that on 28 December 2007 the Town Court erroneously referred
to Article 108 of the CCP governing the initial placement in custody,
and not extension of the term of detention, and in fact extended the
term of the applicant's detention before it had exceeded two months
as required by Article 109 § 2 of the CCP, there was no further
judicial decision on extension of the term of detention from then on.
In
the absence of any domestic court decision extending the applicant's
detention, the Court is bound to conclude that after 29 May 2008,
that is, six months after the date of his placement in custody, the
applicant was detained in breach of the provisions of Article 109 §
2 of the CCP. It thus finds that the applicant's detention pending
extradition cannot be considered “lawful” for the
purposes of Article 5 § 1 of the Convention.
There
has therefore been a violation of Article 5 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant further complained that the criminal
proceedings against him in Tajikistan would not be fair and that his
extradition would expose him to the risk of a flagrant denial of
justice. He relied on Article 6 of the Convention, the relevant parts
of which provide:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal...”
144. The
Government rejected that argument.
145. The
applicant maintained his complaint.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court refers to its finding that the extradition of the applicant to
Tajikistan would constitute a violation of Article 3 of the
Convention (see paragraph 105 above). Having no reason to doubt that
the respondent Government will comply with the present judgment, it
considers that it is not necessary to decide the hypothetical
question whether, in the event of extradition to Tajikistan, there
would also be a violation of Article 6 § 1 of the Convention
(see Saadi, cited above, § 160).
IV. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION
The
applicant contended that he had had no effective remedies in respect
of his complaints under Articles 3 and 5 of the Convention in breach
of Article 13 of the Convention, which reads as follows:
“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.”
149. The
Government contested the applicant's arguments and claimed that he
had had effective domestic remedies as regards his grievances.
150. The
applicant maintained his complaint.
151. As regards the
complaint concerning lack of effective remedies regarding the risk of
ill-treatment that the applicant would run in Tajikistan, the Court
observes that the complaint made by the applicant under
this Article has already been examined in the context of Article 3 of
the Convention. Having regard to its above findings (see paragraph 104
above), the Court considers that, whilst the complaint under Article
13 taken in conjunction with Article 3 is admissible, there is
no need to make a separate examination of this complaint on its
merits (see, mutatis mutandis, Shaipova and Others v.
Russia, no. 10796/04, § 124, 6 November 2008, and Makaratzis
v. Greece [GC], no. 50385/99, §§ 84-86, ECHR
2004-XI).
As
regards the complaint under Article 13 taken in conjunction with
Article 5 of the Convention, the
Court reiterates that, according to its established case-law, the
more specific guarantees of Article 5 §§ 4 and 5, being a
lex specialis
in relation to Article 13, absorb its requirements. In view of
the above finding of a violation of Article 5 § 4 of the
Convention, the Court considers that no separate issue arises under
Article 13 in conjunction with Article 5 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying
on Article 6 § 2 of the Convention, the applicant complained
that in the decision of 4 June 2008 the Russian Deputy Prosecutor
General had stated in affirmative terms that the applicant had
committed crimes before any tribunal had proved him guilty.
154. Having
regard to all the material in its possession, and as far as it is
within its competence, the Court finds that the applicant's
submissions disclose no appearance of violations of the rights and
freedoms set out in the Convention or its Protocols. 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.
VI. 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 considered the amount claimed to be excessive.
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. 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 regarding the applicant's
complaints under Article 5 of the Convention and rejects it;
Declares the complaints under Articles 3, 5 §§
1 and 4, 6 § 1 and 13 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 it is not necessary to examine
whether the applicant's extradition to Tajikistan would also be in
breach of Article 6 § 1 of the Convention;
Holds that no separate
issues arise under Article 13 of the Convention in respect of the
alleged violations of Articles 3 and 5 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000
(fifteen thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 12 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
