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KHAYDAROV v. RUSSIA - 21055/09 [2010] ECHR 685 (20 May 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/685.html
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[2010] ECHR 685
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FIRST
SECTION
CASE OF KHAYDAROV v. RUSSIA
(Application
no. 21055/09)
JUDGMENT
STRASBOURG
20
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 Khaydarov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 21055/09) 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 Mamurdzhon
Rakhimdzhonovich Khaydarov (“the applicant”), on 22 April
2009.
The
applicant was represented by Ms R. Magomedova and Ms E. Ryabinina,
lawyers 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 23 April 2009 the President of the First Section
decided to apply Rules 39 and 41 of the Rules of Court,
indicating to the Government that the applicant should not be
extradited to Tajikistan until further notice and granting priority
treatment to the application.
On
3 July 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1958 and lives in Dushanbe, Tajikistan. He is
currently detained in a remand prison in Moscow.
A. Background of the case
1. Civil war in Tajikistan
In
May 1992 a civil war erupted in Tajikistan when ethnic groups
under-represented in the ruling elite rose up against the national
government of President Nabiyev. Politically, the discontented groups
were represented by liberal democratic reformists and Islamists, who
fought together and later organised themselves under the banner of
the United Tajik Opposition (“UTO”). By June 1997 fifty
to one hundred thousand people had been killed. On 27 June 1997 a
peace agreement was signed by President Rakhmonov and the UTO leader.
However, in August 1997 fighting again erupted in several regions of
Tajikistan, incited by an opposition group. Government forces
retaliated and drove the armed faction of the opposition group to
seek sanctuary in Uzbekistan.
2. The applicant's account of the events of August 1997
The
applicant, an ethnic Uzbek, lived in the village of Tajikistan in the
Shakhrinavskiy District of Tajikistan. The village was mainly
populated by ethnic Uzbeks. In the late 1990s large-scale persecution
of ethnic Uzbeks commenced in Tajikistan. There were several armed
attacks on the applicant's village; some of his acquaintances were
killed.
The
local administration of the applicant's village decided to create a
number of checkpoints on the way to the village to protect the
inhabitants and provided those who manned those checkpoints with
firearms. The applicant himself was not given any firearms.
In
August 1997 the village was attacked once again; after that, several
members of the local militia and the applicant fled to Uzbekistan.
3. Subsequent events
In
February 1998 the applicant moved to Russia.
On
several occasions the applicant travelled from Russia to Tajikistan.
He obtained internal Tajik identity papers and a foreign passport in
2002 and 2004 respectively. His last visit to Tajikistan took place
in September 2005.
On
6 February 2001 the Tajik Prosecutor General's Office instituted
criminal proceedings against Mr M., a fellow villager of the
applicant who had participated in the militia and fled to Uzbekistan
in August 1997, charging him with banditry and organisation of an
illegal armed group. The applicant was listed as one of the members
of the group.
B. Criminal proceedings against the applicant
On
16 January 2006 the Tajik Prosecutor General's Office decided to
bring charges against the applicant, stating that in August 1997 he
had been a member of Mr M.'s illegal armed group and that such
actions constituted an act of banditry punishable under Article 74 of
the Tajik Criminal Code. It was also decided that the applicant
should be put on a wanted list.
On
17 February 2006 the Tajik Prosecutor General's Office decided, in
the absence of the applicant, to place him in custody.
On
15 April 2006 the applicant was put on an international wanted list.
On
19 July 2006 the investigation in the applicant's case was suspended
as the applicant was at large.
On 13 March 2008 the Tajik Prosecutor General's Office
severed the applicant's case from Mr M.'s criminal case. The decision
read, in so far as relevant, as follows:
“At the beginning of August 1997 [Mr M.], taking
advantage of the unstable situation in Tajikistan, created an illegal
armed group to attack legal entities and private individuals; the
group was active until the end of August 1997.
...
At the beginning of August 1997 Mr Khaydarov was a
voluntary member of the illegal armed group and participated in armed
hostilities.
On 9 and 10 August 1997, after officers of
law-enforcement agencies had entered the territory of the
Shakhrinavskiy District, Mr M.'s armed group fled the district
territory and left Tajikistan.”
C. Extradition proceedings
On
18 April 2008 the Tajik Prosecutor General's Office sent a request
for the applicant's extradition to the Russian Prosecutor General's
Office, stating that in August 1997 the applicant had been a member
of Mr M.'s illegal armed group.
On
24 April 2008 the Russian Prosecutor General's Office received a
request by the Tajik Prosecutor General's Office to extradite the
applicant.
On
13 June 2008 the Tajik Prosecutor General's Office sent the Russian
Prosecutor General's Office additional documents stating that the
applicant had participated in Mr M.'s group which had fought the
government troops, and that he had borne arms and had manned the
checkpoint in the village of Tajikistan.
On 20 November 2008 the Russian Prosecutor General's
Office ordered the applicant's extradition to Tajikistan. The
decision read, inter alia, as follows:
“The actions of [Mr] M. Khaydarov are punishable
under the Russian criminal law and correspond to Article 209 § 2
of the Russian Criminal Code (participation in a gang), which
provides for a sanction in a form of imprisonment for more than one
year.
... No [legal] impediments to [Mr] M. Khaydarov's
extradition under treaties and Russian laws have been established.”
On
3 December 2008 the applicant was notified of the extradition order
of 20 November 2008.
The
applicant and his counsel lodged appeals against the decision of 20
November 2008 on 4 and 5 December 2008 respectively. In his appeal
the applicant alleged that he was being persecuted in Tajikistan for
political reasons related to the civil war.
On
23 December 2008 the Moscow City Court, at the applicant's counsel's
request, included in the case file reports by international NGOs on
the political climate in Tajikistan and postponed the examination of
the appeals because the applicant's appeal against the refusal to
grant his asylum request had not yet been examined.
On
21 January 2009 the Moscow City Court again postponed the hearing
pending examination of the appeal against the refusal to grant the
applicant asylum and requested additional documents from the Russian
Prosecutor General's Office concerning the charges brought against
the applicant in Tajikistan.
On
4 February 2009 the Moscow City Court sent requests for information
to the Russian and Tajik Ministries of Foreign Affairs concerning the
applicant's allegations of a risk of ill-treatment, as well as to the
Russian Prosecutor General's Office concerning the possibility of
amnesty being granted to the applicant in Tajikistan, and postponed a
hearing on the appeal against the extradition order pending the
completion of the asylum proceedings.
On
17 February 2009 the Russian Prosecutor General's Office informed the
City Court that the applicant could not benefit from acts of amnesty
in Tajikistan.
On
26 February and 12 March 2009 the Moscow City Court again sent
requests for information concerning the applicant's allegations of a
risk of ill-treatment to the Russian and Tajik Ministries of Foreign
Affairs.
On
27 February 2009 the Moscow City Court again postponed a hearing.
On
24 March 2009 the Russian Ministry of Foreign Affairs informed the
Moscow City Court that it had no information concerning any political
motives for the applicant's prosecution and noted that Tajikistan had
ratified nearly every major international human-rights instrument,
including the International Covenant on Civil and Political Rights
(ICCPR) and the United Nations (UN) Convention against Torture.
On
1 April 2009 the Moscow City Court questioned Ms Ryabinina, a member
of the Expert Council for the Russian Ombudsman, who stated that
torture and ill-treatment were frequently practised in Tajikistan.
On
the same day the Moscow City Court dismissed at first instance the
appeals lodged by the applicant and his counsel against the
extradition order of 20 November 2008. The court reasoned, in
particular, that the applicant had voluntarily left Tajikistan in
1997 and had been able to freely enter the country since then, that
the Tajik Prosecutor General's Office had guaranteed that the
applicant had not been prosecuted for political or religious reasons,
and that Tajikistan had ratified nearly every major international
human-rights instrument. The applicant's allegation that he had been
prosecuted in relation to the civil war remained unanswered.
On
6 April 2009 the applicant's counsel appealed against the Moscow City
Court's judgment.
On 10 April 2009 the Tajik Prosecutor General's Office
informed the Russian Prosecutor General's Office of the following:
“The criminal proceedings against [Mr] Khaydarov
are not inspired by any political motives and the Tajik Prosecutor
General's Office guarantees that [Mr] Khaydarov will be prosecuted
only in respect of the act he was charged with; he will be able to
freely leave the territory of Tajikistan after completion of the
court proceedings and having served any sentence; he will not be
extradited to a third State without the Russian authorities' consent
and will not be persecuted on political and religious grounds.”
On 14 May 2009 the Supreme Court of Russia (“the
Supreme Court”) quashed the judgment of 1 April 2009 because
the Moscow City Court had failed to thoroughly examine the
applicant's counsel's claim that the crime that the applicant had
been charged with was of a political nature. Moreover, the Supreme
Court stated that the Russian Office of the United Nations High
Commissioner for Refugees (UNHCR) had confirmed that the applicant's
fears of political persecution had been well-founded. The case file
was returned to the Moscow City Court for a fresh examination.
On 26 May 2009 the Tajik Prosecutor General's Office
informed the Russian Prosecutor General's Office that Tajikistan had
ratified the UN Convention against Torture.
On 3 June 2009 the Moscow City Court re-examined the
appeals against the extradition order and upheld it. It reasoned that
the applicant was a Tajikistani national, held no refugee status and,
according to the Tajik Prosecutor General's Office, had not been
prosecuted for political or religious reasons. The court also pointed
out that the applicant had applied for temporary asylum only on 6
April 2009 and concluded that his application could not impede the
examination of the appeals against the extradition order. It further
referred to the guarantees of 10 April and 26 May 2009 provided
by the Tajik Prosecutor General's Office that the applicant would not
be persecuted on political and religious grounds and dismissed the
report by Ms Ryabinina as unsubstantiated, arguing that the
assurances in question sufficed to exclude the risk of ill-treatment
in the applicant's case. The applicant's allegations that the
criminal proceedings against him had been linked to the events
surrounding the civil war remained unanswered.
On 30 July 2009 the Supreme Court upheld the Moscow
City Court's decision of 3 June 2009. It reasoned that Tajikistan had
ratified the UN Convention against Torture and referred to the
guarantees given by the Tajik Prosecutor General's Office. On the
same date the extradition order became final.
D. Asylum proceedings
On
17 June 2008 the applicant applied to the Moscow Office of the
Federal Migration Service (“the Moscow FMS”) for asylum,
claiming that the Tajik authorities had persecuted him on the ground
of his ethnic origin.
On
6 October 2008 the asylum request was dismissed; on 1 November
2008 the applicant was notified accordingly.
On
28 January 2009 the Zamoskvoretskiy District Court of Moscow
dismissed an appeal by the applicant against the decision by the
Moscow FMS.
On
26 March 2009 the Moscow City Court upheld the judgment of 28 January
2009 on appeal.
On
6 May 2009 the UN High Commissioner for Refugees declared the
applicant a person requiring international protection.
On
22 September 2009 the Moscow FMS rejected the applicant's request for
temporary asylum and notified him accordingly on 5 October 2009.
The
applicant appealed against the refusal of 22 September 2009 to the
Federal Migration Service of Russia (“the Russian FMS”).
On 13 November 2009 the Russian Office of the UNHCR
sent the Russian FMS a report in support of the applicant's request
for temporary asylum, stating that he ran a real risk of being
ill-treated in Tajikistan. The report read, in particular, as
follows:
“Mr Khaydarov's allegations [of a risk of
ill-treatment] are supported by numerous documents concerning the
events of 1997-98 in Tajikistan. ... [E]thnic Uzbeks were subjected
to oppression and persecution; in particular, there were reports of
numerous killings of civilians before and during the armed conflict
in August 1997, which led to a mass exodus of ethnic Uzbeks from
northern areas of Tajikistan, in particular to Uzbekistan.
Having examined Mr Khaydarov's application and having
assessed his fears regarding his return to [Tajikistan], the UNHCR
has established that Mr Khaydarov's application and his fears of
being subjected to persecution, on the grounds of political
convictions attributed to him, in the form of arrest, torture with a
view to obtaining a self-incriminating deposition, unlawful and
unfair trial and lengthy imprisonment for acts that he had not
committed are well-founded.
... There are strong reasons to believe that the
criminal proceedings against the applicant instituted by the Tajik
authorities amount to persecution on the grounds of political views
attributed to the applicant, since [the Tajik authorities] associate
the applicant with anti-governmental activities because he had been a
member of militia groups suspected of involvement in the armed
conflict of August 1997.
...
The UNHCR considers that there are serious concerns that
Mr Khaydarov will be subjected to torture and other violations of
basic human rights, which mean that there is an even greater risk of
his being persecuted on the grounds of political views attributed to
him. ...[Mr Khaydarov's] case corresponds to the definition of a
'refugee' within the meaning of the 1951 United Nations Convention
Relating to the Status of Refugees and the Russian Refugees Act.
... Mr Khaydarov is charged with ... banditry. However,
it is noteworthy that the criminal case in which Mr Khaydarov is
charged was opened in 2001 and the preliminary investigation
concerning Mr Khaydarov was suspended in 2006, which shows that
during such a lengthy period of investigation no proof of his guilt
had been found and that the requesting State has no such proof.
The Tajik authorities have not provided a single piece
of factual evidence of Mr Khaydarov's criminal activity in his
country of origin, and the documents provided by the Tajik
counterparty as a basis for extradition are contradictory. ... [t]he
UNHCR concludes that there is no reliable evidence of the fact that
Mr Khaydarov committed criminal acts, such as banditry, while in
Tajik territory.”
E. The applicant's detention
On
17 April 2008 the applicant was arrested in Moscow as a person wanted
by the Tajik authorities. Upon his arrest the applicant learned for
the first time that there had been criminal proceedings against him.
On the same date the Tajik Ministry of the Interior requested the
Russian police to keep the applicant in custody pursuant to the Minsk
Convention.
The
applicant was then placed in remand prison IZ-77/4 in Moscow.
On 19 April 2008 the Taganskiy District Court of
Moscow ordered the applicant's placement in custody pending
extradition pursuant to Articles 97, 99 and 108 and Article 466 §
1 of the Russian Code of Criminal Procedure (CCP). The court stated
that on 19 July 2006 the applicant had been put on a wanted list and
that he had no permanent place of residence in Russia and concluded
that, if not in custody, he could escape and impede his extradition
to Tajikistan. The term of the detention was not specified.
On 18 June 2008 the Taganskiy District Court again
ordered the applicant's placement in custody pursuant to Articles 108
and 466 of the CCP for an unspecified period of time. The court
reasoned that less severe preventive measures could not be applied
because the applicant had been at large since 1996, was a Tajikistani
national, had no registered place of residence in Russia and was
charged with a crime that was punishable by imprisonment for more
than two years.
On
6 October 2008 the applicant's counsel applied to the governor of
remand prison IZ-77/4 for the applicant's release, claiming that the
maximum detention period permitted by domestic law had expired. On
16 October 2008 the governor of the remand prison replied that
the applicant had not appealed against the decision of 18 June 2008
authorising his detention and that the question of his release should
be decided upon by the Russian Prosecutor General's Office.
On
1 December 2008 the applicant's counsel complained to the
Babushkinskiy District Court of Moscow that the applicant's detention
was unlawful.
On
10 December 2008 the Babushkinskiy District Court informed the
applicant's counsel that it had no jurisdiction to examine the
complaint.
On
23 January 2009 the applicant's counsel complained to the Tverskoy
District Court of Moscow, under Article 125 of the CCP, that the
Russian Prosecutor General's Office had unlawfully failed to apply
for an extension of the term of the applicant's detention as required
by Article 109 of the CCP. On 27 January 2009 the President of the
Tverskoy District Court returned the complaint for elimination of
discrepancies.
On
4 May 2009 the applicant's counsel lodged another complaint under
Article 125 of the CCP with the Zamoskvoretskiy District Court of
Moscow, alleging inaction on the part of the Russian Prosecutor
General's Office.
On 7 May 2009 the Zamoskvoretskiy District Court
refused to examine the applicant's complaint of 4 May 2009 for the
reason that its subject matter did not fall within the ambit of
Article 125 of the CCP.
On 14 May 2009 the Supreme Court ruled that the
preventive measure applied to the applicant should remain unvaried
until 4 June 2009.
On 3 June 2009 the Moscow City Court ruled that the
preventive measure applied to the applicant should remain unvaried.
On
27 July 2009 the Moscow City Court quashed the decision of the
Zamoskvoretskiy District Court of 7 May 2009 and remitted the matter
to the first-instance court for a fresh examination.
On 4 September 2009 the Zamoskvoretskiy District Court
again dismissed the applicant's complaint, arguing that Article 125
of the CCP was inapplicable since there had been no criminal
proceedings pending against the applicant in Russia. It reasoned as
follows:
“The [applicant's] requests to declare unlawful
the inaction of the Moscow prosecutor's office on account of its
failure to perform its function of supervising compliance with the
law in custodial institutions could not be examined under Article 125
of the CCP because the prosecutors' supervision of the custodial
system is not related to the criminal proceedings against [Mr]
Khaydarov.
Acts and inaction of agents of the prosecutor's office
can be challenged by way of another procedure which is not provided
for in Article 125 of the CCP.
The request for extension of the term of custodial
detention is an exclusive right of the competent bodies and a court
is not entitled to impel [those bodies] to bring such requests.”
On
11 September 2009 the applicant's counsel appealed against the
decision of 4 September 2009.
On
14 September 2009 the applicant's counsel complained to the Taganskiy
District Court that the applicant's detention was unlawful. Referring
to Article 5 § 4 of the Convention, she argued that Article 109
of the CCP had been breached in the applicant's case as his term of
detention had not been extended and that there had been no judicial
review of the lawfulness of the detention.
On
16 September 2009 a judge of the Taganskiy District Court sent the
applicant's counsel a letter explaining that it was open to the
applicant to appeal against the decision on choosing the preventive
measure and that there were no other avenues of complaining of the
alleged unlawfulness of detention.
On
5 October 2009 the applicant's counsel appealed against the refusal
to examine her complaint. On 13 October 2009 the judge of the
Taganskiy District Court sent her a letter explaining that the
previous letter could not be appealed against.
On
26 October 2009 the Moscow City Court dismissed the appeal against
the decision of 4 September 2009.
On
8 December 2009 the applicant's counsel requested the Russian
Prosecutor General's Office to release the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure (CCP)
Chapter 13 of the CCP 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 be engaged in criminal
activities, threaten witnesses or impede 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 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. 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 preventive
measure in respect of the person whose extradition is sought. The
preventive measure is to be applied in accordance with the
established procedure (Article 466 § 1).
B. Decisions of the Constitutional Court of Russia
1. Decision no. 101-O of 4 April 2006
Verifying
the compatibility of Article 466 § 1 of the CCP with the Russian
Constitution, the Constitutional Court reiterated its settled
case-law to the effect 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 absence of specific regulation
of detention matters in Article 466 § 1 did not create a legal
lacuna incompatible with the Constitution. Article 8 § 1 of the
1993 Minsk Convention provided that, in executing a request for legal
assistance, the requested party would apply its domestic law, that
is, the procedure laid down in the CCP. Such procedure comprised, in
particular, Article 466 § 1 of the Code and the norms in its
Chapter 13 (“Preventive measures”), which, by virtue of
their general character and position in Part I of the Code (“General
provisions”), applied to all stages and forms of criminal
proceedings, including proceedings for the examination of extradition
requests.
The
Constitutional Court emphasised that the guarantees of the right to
liberty and personal integrity set out in Article 22 and Chapter 2 of
the Constitution 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 in the Code.
2. Decision 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.
3. 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 matter was within the
competence of the courts of general jurisdiction.
4. Decision no. 333-O of 1 March 2007
The Constitutional Court reiterated its settled
case-law to the effect that the scope of the constitutional right to
liberty and personal inviolability was the same for foreign nationals
and stateless persons as for Russian nationals. A foreign national or
stateless person may not be detained in Russia for more than
forty-eight hours without a judicial decision. That constitutional
requirement served as a guarantee against excessively long detention
beyond forty-eight hours, and also against arbitrary detention as
such, in that it required a court to examine whether the arrest was
lawful and justified.
The Constitutional Court held that Article 466 §
1 of the Code of Criminal Procedure, read in conjunction with the
Minsk Convention, could not be construed as permitting the detention
of an individual for more than forty-eight hours, on the basis of a
request for his or her extradition, without a decision by a Russian
court. A custodial measure could be applied only in accordance with
the procedure established in the Russian Code of Criminal Procedure
and within the time-limits fixed in the Code.
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:
“...
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 V.
B. The 1993 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
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.”
Minority Rights Group International in its document
“Tajikistan: Overview”, updated in
January 2008, describes the situation of the Uzbek minority in
Tajikistan as follows:
“The situation in Tajikistan is similar in many
respects to that of its neighbours. ... Since independence, Tajiks
have attempted to assert their dominance by linguistic and other
preferences that tend to discriminate against and exclude minorities,
often leading to resentment or even an exodus. While they were close
to a quarter of the population at the time of independence, many
Uzbeks fled during the period of the civil war. They remain the
largest minority at over 15 percent of the population according to a
2000 census, and are concentrated in areas usually associated with
opposition to the government. This has led to a general distrust of
Uzbeks, and in turn discriminatory treatment towards them in many
institutions of the state. Once again, oppressive measures have been
presented as necessary in the name of the fight against 'terror' and
'separatism'. The degree of under-representation of minorities in
public life is startling: only two members of Parliament are Uzbeks,
despite this minority's very substantial numbers.
... Despite constitutional provisions that initially
appear to guarantee the use of minority languages, and despite the
large percentage of minorities in the country, in particular Uzbeks,
minorities are largely excluded from employment in public service.”
The World Report Chapter: Tajikistan by Human Rights
Watch, released in January 2009, describes the human-rights situation
in the country as follows:
“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 2009 US Department of State Country Report on
Human Rights Practices, released on 11 March 2010, provides the
following information in relation to Tajikistan:
“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.
...
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.
...
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.
...
Trials are public, except in cases involving national
security. There is a presumption of innocence by law, but in practice
defendants were presumed guilty. ... In national security cases, a
panel consisting of a presiding judge and two 'people's assessors'
determines the guilt or innocence of the accused. Qualifications of
the assessors and how those qualifications are determined are not
known, but their role is passive, and the presiding judge dominates
the proceedings.
...
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.”
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 the
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
The
Government contested the applicant's arguments.
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 the 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 reason not to
extradite the applicant because Tajikistan, a UN member, had
undertaken to comply with the Universal Declaration of Human Rights,
and 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
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.
The
applicant maintained his claims.
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, ECHR 2005-VI, 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 the 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 the 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
since the criminal proceedings against him were of a political nature
and because of his ethnic Uzbek origin.
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 that, in the Government's submission,
Tajikistan respects 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-I, and Saadi v. Italy [GC], no. 37201/06,
§ 131, ECHR 2008-...).
The Court points out in this connection 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 85 above). Human Rights Watch
observed that granting impunity to State officials for acts of
rampant torture was a common practice (see paragraph 87 above).
The US Department of State also reported frequent use of torture by
security officials and pointed out that the Tajik authorities denied
independent observers, including employees of the International
Committee for the Red Cross, unhindered access to detention
facilities (see paragraph 88 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 with the situation 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 corroboration 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
applicant argued that the risk of his being subjected to
ill treatment in Tajikistan was exacerbated by his ethnic Uzbek
origin. The Court points out in this connection that instances of
discrimination against Uzbeks in Tajikistan have been reported (see
paragraph 86 above). Furthermore, the applicant brought to the
Russian authorities' attention the fact that the charges against him
concerned events that had taken place in the aftermath of the civil
war. The Court observes in this connection that, according to the US
Department of State, several hundred political prisoners, including
former opponents of the governing party who fought in the civil war,
are being held in Tajikistan (see paragraph 88 above).
The
Court also observes that the Russian Office of the UNHCR, having
studied the applicant's case, concluded that the criminal charges of
banditry had amounted to disguised persecution “on the grounds
of political views attributed to the applicant, since [the Tajik
authorities] associate the applicant with anti-governmental
activities because he had been a member of militia groups suspected
of involvement in the armed conflict of August 1997” (see
paragraph 46 above). In such circumstances the Court considers that
the applicant's personal situation would be more likely to increase
the risk to him of harm in Tajikistan (see, mutatis mutandis,
Chahal, cited above, § 106).
The Government's reference to the fact that the
applicant did not apply for asylum immediately after his arrival in
Russia does not necessarily refute his 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). Moreover, it is noteworthy that the Russian
Office of the UNHCR acknowledged that, in its opinion, the applicant
qualified as a “refugee” within the meaning of the 1951
Convention (see paragraph 46 above).
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 further notes that the Government relied on assurances from the
Tajik Prosecutor General's Office to the effect that the applicant
would not be subjected to ill-treatment in Tajikistan (see paragraphs
34 and 36 above). However, the Court observes that the Tajik
Prosecutor General's Office's letters of 10 April and 26 May 2009,
which the Government described as diplomatic assurances, contained no
reference whatsoever to the protection of the applicant from
treatment proscribed by Article 3 of the Convention. The mere
statement that Tajikistan had ratified the Convention against Torture
could not be considered a warranty against the risk of being
subjected to torture that the applicant might face in Tajikistan. In
any event, 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 did not dispute that the applicant had
brought to the domestic authorities' attention the fact that he had
been persecuted in Tajikistan on ethnic and political grounds.
Moreover, the Supreme Court quashed the decision of 1 April 2009 for
the reason that the Moscow City Court had failed to analyse the
defence's argument concerning political persecution (see paragraph 35
above).
Nonetheless,
when re-examining the appeals against the extradition order, the City
Court merely stated that Ms Ryabinina's report had been
unsubstantiated (see paragraph 37 above). The Supreme Court, in its
turn, limited its analysis of the risk of the applicant's being
subjected to ill treatment to a reference to the assurances by
the Tajik Prosecutor General's Office (see paragraph 38 above). The
Court is struck by the fact that both the City Court and the Supreme
Court claimed that the letters from the Tajik Prosecutor General's
Office of 10 April and 26 May 2009 had provided assurances that the
applicant would not be ill-treated in Tajikistan, whereas it is clear
from those documents that no such assurances were given. It concludes
therefore that the domestic courts failed to study carefully the
documents produced in the applicant's extradition case. It is also
noteworthy that the domestic courts made no attempt to examine the
fact that the charges against the applicant concerned events that had
occurred in the context of the aftermath of the civil war and that
the Tajik authorities might have brought them with a view to
retaliating against their former political opponents.
In such circumstances the Court is 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”.
He also complained under Article 5 § 4 of the Convention that he
could not challenge in the Russian courts the lawfulness of his
detention pending extradition.
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. The parties' submissions
1. The Government
The
Government contested the applicant's arguments. They claimed that the
applicant's detention pending extradition had been authorised by the
decision of 18 June 2008 and that the decision in question had been
taken after a court hearing held in the presence of the applicant and
his counsel. The applicant had been advised of the avenues of appeal
against the decision to place him in custody. In sum, the applicant's
detention had been “lawful” within the meaning of Article
5 § 1 of the Convention.
The
Government further referred to the decision by the Russian
Constitutional Court of 1 March 2007 (see paragraphs 76 and 77 above)
stating that the applicant's detention had been governed by Article
466 § 1 of the CCP read in conjunction with Chapter 13 of the
CCP and that those legal provisions had been sufficiently clear.
The
length of the applicant's detention could be explained by the
complexity of the check undertaken by the Russian Prosecutor
General's Office as regards the applicant's nationality. The
detention after 3 December 2008, when the applicant had been
served with the extradition order, had been justified by the fact
that he had appealed against it, as well as by the application of
Rule 39 of the Rules of Court.
The
applicant had had an opportunity to complain about the alleged
unlawfulness of his detention using the procedure referred to in the
decision by the Russian Constitutional Court of 1 March 2007, that
is, under Articles 97 to 101 and 108 to 110 of the CCP and
Chapter 54 of the CCP. The applicant had repeatedly complained that
his detention had been unlawful, in particular, to the Babushkinskiy,
Tverskoy and Zamoskvoretskiy District Courts of Moscow and to the
governor of the remand prison.
The
Government concluded that the applicant's rights under Article 5
of the Convention had not been violated.
2. The applicant
The
applicant asserted that the term of his detention had exceeded the
maximum term permitted by Article 109 of the CCP and that it had
never been extended in breach of domestic law since the decision of
18 June 2008 could not be regarded as a decision on prolongation of
the term of custodial detention. The applicant also claimed that the
term of his detention had been unforeseeable, in breach of the
quality-of-law requirement, because the Russian prosecutors had not
applied to a court for extension of the term of his detention and the
domestic courts had found that the prosecutors should not have done
so in the absence of domestic criminal proceedings against him. He
further stated that no extradition proceedings against him had been
pending after the application of Rule 39 of the Rules of Court and
that accordingly his detention had ceased to be justifiable under
Article 5 § 1 (f) of the Convention.
The
applicant also maintained his complaint under Article 5 § 4 of
the Convention.
B. The Court's assessment
1. Admissibility
The
Court 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 § 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 (ibid., § 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 disagreed, however, as to whether the detention
was “lawful” within the meaning of Article 5 § 1 of
the Convention.
128. 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-...).
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 prosecutor rather than by a decision of a
Tajik court. The applicant's initial placement in custody was
ordered, on 19 April 2008, by a Russian court in accordance with
Articles 97, 99 and 108 and Article 466 § 1 of the CCP (see
paragraph 49 above).
However,
an issue arises as to whether the judicial authorisation of the
applicant's detention given by the Taganskiy District Court 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 67 above).
According
to the Government, the applicant's placement in custody was
authorised by the Taganskiy District Court, pursuant to Article 108
of the CCP, on 19 April 2008 and then again on 18 June 2008 (see
paragraphs 49 and 50 above). The Court is concerned with the
fact that the same district court chose the same preventive measure
in respect of the applicant for the second time one month and
twenty-nine days after its first decision, although the applicant had
remained in custody throughout that period. Nonetheless, it is ready
to assume for the sake of argument that on 18 June 2008 the Taganskiy
District 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.
Should
that be the case, the Court points out that no further decision on
the extension of the term of the applicant's detention was taken
until 14 May 2009, when the Supreme Court ruled that the applicant
should remain in custody until 4 June 2009 (see paragraph 57 above).
It follows that it took the domestic courts ten months and
twenty-five days to reconsider the issue of the applicant's detention
pending extradition.
In such circumstances the Court is bound to conclude
that after 17 October 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. In these circumstances, the Court does not need
to consider separately the applicant's additional arguments
concerning the quality of domestic law and the length of his
detention.
There
has therefore been a violation of Article 5 § 1 of the
Convention.
(b) 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 observes that it is not disputed between the parties that the
applicant spent more than two years in detention pending extradition.
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” with 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, ECHR
2008-...).
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
request by a prosecutor for an extension of the custodial measure
(see Nasrulloyev, cited above, § 88, Ismoilov and
Others, cited above, § 151, and Muminov
v. Russia, no. 42502/06, §
114, 11 December 2008). Furthermore, in the present case the
applicant's counsel's attempt to complain about the prosecutors'
failure to request such an extension proved to be futile as the
Zamoskvoretskiy District Court expressly stated on two occasions that
Article 125 of the CCP was inapplicable in the applicant's case (see
paragraphs 56 and 60 above).
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.
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.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant complained that the wording of the extradition order had
violated his right to be presumed innocent, in breach of Article 6 §
2 of the Convention, which reads as follows:
“ Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
A. The parties' submissions
The
Government claimed that the extradition order merely contained a
classification of the offence with which the applicant had been
charged under the Russian law and not a finding as regards his guilt.
The
applicant submitted that the Russian Prosecutor General's Office in
its order of 20 November 2008 had stated that he had been guilty, in
breach of the presumption-of-innocence principle; he suggested that
the statement in question might influence the Tajik courts.
Therefore, his right to be presumed innocent had been violated.
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, and Nešťák v. Slovakia,
no. 65559/01, §§ 88 and 89, 27 February
2007). 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 points out that
the extradition order of 20 November 2008 stated that “[t]he
actions of [Mr] M. Khaydarov are punishable under the Russian
criminal law and correspond to Article 209 § 2 of the Russian
Criminal Code” (see paragraph 21 above). In the Court's view,
the sentence in question refers first and foremost to the
classification of the acts with which the applicant was charged in
Tajikistan under Russian law. Although the wording employed by the
Russian Prosecutor General's Office was rather unfortunate since
there was no clear indication of the fact that the applicant had been
merely suspected of having committed “actions punishable under
the Russian criminal law”, the Court considers that the Russian
Prosecutor General's Office was referring not to the question whether
the applicant's guilt had been established by the evidence –
which was clearly not for the determination of the prosecutor issuing
an extradition order – but to the question whether there were
legal grounds for the applicant's extradition (see, mutatis
mutandis, Daktaras, cited above, § 44).
In
such circumstances the Court cannot conclude that the wording of the
extradition order amounted to a declaration of the applicant's guilt
in breach of the principle 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant contended that he had had no effective remedies in respect
of his complaint under Article 3 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.”
154. The
Government contested the applicant's arguments and claimed that he
had had effective domestic remedies as regards his grievances.
155. The
applicant maintained his complaint.
156. The Court observes
that the complaint made by the applicant under this head has already
been examined in the context of Article 3 of the Convention. Having
regard to its above findings (see paragraph 114 above), the Court
considers that, whilst the complaint under Article 13 taken in
conjunction with Article 3 is admissible, there is no need to
carry out 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).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 15,000 euros (EUR) in respect of the non pecuniary
damage caused by his unlawful detention and the fact that he ran the
risk of being ill-treated if extradited.
The
Government submitted that the amount claimed was unreasonable and
suggested that a finding of a violation of the Convention would in
itself constitute sufficient just satisfaction.
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 claimed 55,000 Russian roubles (RUB, equivalent to EUR
1,240) for his representation by Ms Magomedova at national level. He
submitted two invoices confirming that the sum in question had been
paid. He further claimed, referring to his lawyers' timesheets, EUR
3,800 for his representation by Ms Magomedova before the Court, as
well as EUR 1,600 for his representation by Mr Ryabinina. The
timesheets did not indicate the lawyers' hourly rates. The applicant
further claimed compensation for postal and administrative fees in
the amount of 7% of the legal fees claimed, that is, EUR 464.
The
Government submitted that the applicant had substantiated with
appropriate evidence his claims in the amount of RUB 55,000 but had
failed to show that the remaining costs had actually been incurred.
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
dismisses the claim for costs and expenses in the Strasbourg
proceedings as unsubstantiated and considers it reasonable to award
the sum of EUR 1,240 for the domestic proceedings.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Articles 3, 5 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 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that no separate issues arise 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 1,240 (one thousand two hundred and forty 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 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
