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ERGASHEV v. RUSSIA - 12106/09 [2011] ECHR 2249 (20 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2249.html
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[2011] ECHR 2249
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FIRST
SECTION
CASE OF ERGASHEV v. RUSSIA
(Application
no. 12106/09)
JUDGMENT
STRASBOURG
20
December 2011
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 Ergashev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 12106/09) 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 an Uzbek national, Mr Urinboy Ergashev (“the
applicant”), on 3 March 2009.
The
applicant was represented by Ms O. Tseytlina, a lawyer practising in
St Petersburg, who was assisted by lawyers of
the EHRAC/Memorial Human Rights Centre, an NGO with offices in London
and Moscow. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
The
applicant alleged that his detention by the Russian authorities with
a view to his extradition to Uzbekistan, where he faced politically
motivated persecution by the local authorities, gave rise to
violations of his rights under Article 3, Article 5 and Article 6 § 2
of the Convention.
On
22 June 2010 the President of the Chamber to which the case was
allocated decided, in the interests of the parties and the proper
conduct of the proceedings before the Court, to indicate to the
Government of Russia, under Rule 39 of the Rules of Court, that the
applicant should not be extradited to Uzbekistan until further
notice.
On
1 September 2010 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and lives in St Petersburg.
The circumstances of the case
1. Information submitted by the applicant
(a) Background information
In
1989 the applicant became a mullah in the mosque of Mamurobod in
Uzbekistan. In 1999 he graduated as a qualified Arabic teacher from
the Foreign Languages Institute in Andijan, Uzbekistan. From 1999 to
2007 he was not officially employed and provided religious
consultations about Islam, as well as teaching Arabic and Koran
studies.
In
May 2007 the applicant moved to Russia. On 6 June 2007 he was
registered as a migrant in St Petersburg.
(b) Proceedings in Uzbekistan
On
8 December 2007 the Andijan Region Investigations Department of the
Uzbek Ministry of the Interior charged the applicant in absentia
with a number of crimes including membership of an extremist
organisation, attempting to overthrow the State’s
constitutional order and dissemination of the
views of a radical extremist movement. The applicant’s
name was put on the wanted list; an arrest warrant was issued against
him.
On
25 September 2008 the Prosecutor General’s Office of Uzbekistan
forwarded a request for the applicant’s extradition to the
Russian Prosecutor General’s Office.
On
23 January 2009 the Prosecutor General’s Office of Uzbekistan
informed the Russian Prosecutor General’s Office that it “...
guarantee[d] that the prosecution of U. Ergashev [would] be carried
out in strict compliance with Uzbek legislation”.
On
2 March 2009 the Andijan Town Court ordered the applicant’s
arrest. The decision did not set any time-limits for the applicant’s
detention.
(c) Proceedings in Russia
(i) Extradition proceedings
On
1 September 2008 the applicant was arrested in St Petersburg on the
basis of a letter from the Uzbek authorities and placed in a
detention centre.
On
22 June 2009 the Russian Prosecutor General’s
Office issued an extradition order against the applicant. The text of
the decision included the following:
“... the Andijan Region Investigations Department
of the Uzbek Ministry of the Interior is investigating a criminal
case against U. Ergashev ...
The charges against U. Ergashev state that between 22
May 1999 and 2007, in the Andijan region of Uzbekistan, being an
active member of the prohibited religious extremist movement ... with
the aim of overthrowing the State’s constitutional order, ...
he actively participated in the criminal activities of the supporters
of the extremist religious movement ... and publicly called for the
overthrow of the constitutional order of the Republic of Uzbekistan
by engaging in ‘jihad’ (holy war) and for the creation of
an Islamic State ...
... The actions of U. Ergashev are punishable under
Russian criminal law and correspond to paragraph 1 of Article 280
(public calls for extremist activities), paragraph 2 of Article 282
(incitement to hatred) and paragraph 2 of Article 282 3
(membership of an extremist organisation) of the Russian Criminal
Code; the penalties envisaged under those Articles entail deprivation
of liberty for more than one year. The limitation period for the
above crimes under Russian and Uzbek law has not expired ...”
The
applicant appealed against the extradition order to the St Petersburg
City Court (“the City Court”), stating, among other
things, that he was being persecuted by the Uzbek authorities for his
political and religious beliefs and that if extradited, he would be
subjected to ill-treatment in Uzbekistan.
On
14 August 2009 the City Court overruled the extradition order,
stating that it had been issued prematurely – that is, before
the examination of the applicant’s request for temporary asylum
– and ordered the applicant’s release from detention.
The
prosecutor’s office appealed against that decision to the
Supreme Court of the Russian Federation (“the Supreme Court”).
On 30 September 2009 the Supreme Court overruled the decision of
14 August 2009 and remitted the case for a fresh examination.
On
5 May 2010 the City Court again examined the applicant’s
complaint and upheld the extradition order, referring, amongst other
things, to the guarantees provided by the Uzbek Prosecutor General’s
office to the effect that the applicant would not be subjected to
ill-treatment in Uzbekistan. The applicant appealed against that
decision to the Supreme Court.
On
22 June 2010 the European Court of Human Rights granted a request by
the applicant for the application of interim measures under Rule 39
of the Rules of Court entailing the suspension of his extradition to
Uzbekistan.
On
7 July 2010 the Supreme Court dismissed the applicant’s appeal
and the extradition order became final.
(ii) The applicant’s detention with
a view to extradition and his complaints on the matter
() The
first period of the applicant’s detention
On
1 September 2008 the applicant was arrested. On 3 September 2008 the
Smolninskiy District Court of St Petersburg (“the Smolninskiy
District Court”) authorised the applicant’s detention on
the basis of the arrest warrant issued by the Uzbek authorities on 8
December 2007 (see paragraph 12 above). In its decision the court
referred to Article 108 of the Code of Criminal Procedure (“the
CCP”). No time-limits were set for his detention.
On
17 October 2008 the Smolninskiy District Court further authorised the
applicant’s detention with a view to extradition without laying
down any relevant time-limits. In its decision the court referred to
Articles 108 and 466 of the CCP.
On
29 January 2009 the applicant complained to the Smolninskiy District
Court that his detention pending extradition was unlawful. On
2 February 2009 the court allowed his complaint in full and
released him. The court’s decision stated, amongst other
things, that the applicant’s detention had not been extended by
court orders and its length was uncertain, in violation of Article
109 of the CCP and of Article 5 of the Convention.
The
prosecutor’s office appealed against that decision. On
12 February 2009 the St Petersburg City Court upheld the
decision of 2 February 2009 on appeal and reaffirmed that the
applicant’s detention during the above period had been
unlawful.
() The
second period of the applicant’s detention
On
3 March 2009 the applicant was arrested again. On 4 March 2009 (in
the documents submitted the date was also referred to as 6 March
2009) the Tsentralniy district prosecutor’s
office of St Petersburg (“the prosecutor’s office”)
requested that the Dzerzhinskiy District
Court of St Petersburg (“the Dzerzhinskiy District Court”)
authorise the applicant’s detention with a view to extradition.
On
6 March 2009 the Dzerzhinskiy District Court
refused to grant the prosecutor’s request, stating that the
applicant had already been detained on the same grounds and that the
authorities had failed to prove that he intended to abscond. In spite
of the above decision, the applicant was not released from detention
as on the same date the prosecutor’s office ordered his
detention on the basis of the arrest warrant issued by the
Andijan Town Court on 2 March 2009.
On
18 March 2009 (in the documents submitted the date was sometimes
given as 10 March 2009) the applicant complained to the Dzerzhinskiy
District Court, stating, among other things, that in the absence of
an extradition order his detention was unlawful, that he had already
been detained with a view to extradition between 1 September 2008 and
2 February 2009 and that his further detention from 3 March 2009
was against the law as it was based on the same grounds.
On
18 March 2009 the Dzerzhinskiy District Court examined the
applicant’s complaint under Article 125 of the CCP (complaints
against acts and decisions of officials involved in criminal
proceedings) and dismissed it, stating that the prosecutor’s
detention order of 6 March 2009 was lawful and substantiated as it
had been based on the detention order issued by the Andijan Town
Court on 2 March 2009. The court did not examine the applicant’s
allegation that his continued detention from 3 March 2009 was against
the law as it was based on the same grounds as his previous detention
between 1 September 2008 and 2 February 2009.
On
8 May 2009 the City Court upheld the decision of 18 March 2009 on
appeal. It did not examine the applicant’s allegations
concerning the use of the same grounds for his continued detention
either.
On
13 May 2009 the applicant again complained to the
Dzerzhinskiy District Court, stating that his detention was unlawful
and excessively lengthy as the two-month time-limit for the detention
had expired and his further detention had not been authorised by the
Russian courts.
On
27 May 2009 the Dzerzhinskiy District Court allowed the applicant’s
complaint and acknowledged the excessive length of his detention.
However, the applicant remained in detention. The applicant appealed
against that decision.
On
3 August 2009 the City Court overruled the decision of 27 May
2009 on appeal and remitted the case for a fresh examination. The
applicant remained in detention.
On
25 August 2009 the Dzerzhinskiy District Court
again allowed the applicant’s complaint of 13 May 2009. The
court stated that the applicant’s detention as of 7 May
2009 had been unlawful as it had not been duly extended by the
domestic courts. It ordered the applicant’s release from
detention even though he had actually been released on 14 August
2009 following the decision of the City Court (see paragraph 16
above). The prosecutor’s office appealed against the decision.
On 27 October 2009 the City Court upheld the decision of 25 August
2009 on appeal.
() Further
developments
On
6 September 2010 the applicant was arrested by the National
Interpol Bureau in St Petersburg and the Leningrad Region and
taken to the Viborgskiy district department of the interior in St
Petersburg (the Viborgskiy ROVD), where he was detained from 11.35
a.m. to 5.30 p.m. before being released on an undertaking to visit
the Viborgskiy district prosecutor’s office.
On
8 September 2010 the Viborgskiy district prosecutor’s office
placed the applicant under house arrest “pending extradition to
Uzbekistan”.
(iii) Conditions of the applicant’s
detention and transfer
() Conditions
of the applicant’s detention between 3 and 7 March 2009
At
about 10.30 a.m. on 3 March 2009 the applicant was arrested in the
building of the Dzerzhinskiy District Court
(see paragraph 25 above). He was taken to a police station (78th
office of the St Petersburg department of the interior – 78-й
отдел милиции),
where he was detained until 1 p.m. on 7 March 2009.
During
these four days the applicant was detained in an
administrative-detention cell. The
conditions of his detention were as follows: the
cell, which measured 6 sq. m, had a tiny window; it did not
have ventilation; there was no bed or toilet; the applicant slept on
a narrow wooden bench which was designed for seating; no food or
drink was given to him throughout the detention; and he was allowed
to use the toilet in the adjacent area only with the permission of
the police officers. The applicant had to obtain drinking water from
the toilet.
() Conditions
of the applicant’s detention between 7 March and 14 August
2009
At
about 1 p.m. on 7 March 2009 the applicant was transferred from the
police station to remand prison IZ-47/4 in St Petersburg.
Between
7 and 11 March 2009 the applicant was detained in cell no. 82,
measuring 18 sq. m, with ten other inmates. There were only eight
bunk beds; the applicant therefore had to sleep on the floor. The
cell had neither a table nor hot water. No proper bedding was
provided for the applicant. His personal space amounted to 1.6 sq. m.
The inmates constantly smoked in the cell, which had an adverse
effect on the applicant’s health. On 11 March 2009 the
applicant was allowed to take his first five-minute shower since his
arrest on 3 March 2009.
On
12 March 2009 the applicant was transferred to cell no. 130/2
(tuberculosis cell) as it had been established that he was suffering
from tuberculosis. The cell measured about 30 sq. m and had fifteen
bunks. Between 12 and 15 March 2009 it held seven inmates; between 16
and 18 March it held eleven inmates; between 19 and 28 March it
held twelve inmates; between 5 and 17 May thirteen inmates; on 18 May
nine inmates; on 19 May ten inmates; and between 20 and 25 May
eleven inmates. Depending on the number of inmates the applicant’s
personal space varied from 4.6 to 2.5 sq. m. The table in the cell
was a few metres from the toilet; no disinfectant was provided for
the latter. The inmates had to do their laundry in the cell using a
basin. Irrespective of the gravity of their medical condition and the
degree of contagiousness, the inmates were kept together in the same
cell.
On
29 March 2009 the applicant was transferred to cell no. 130/3,
which measured about 32 sq. m, had fourteen bunks and housed from
eight to twelve other inmates. Between 29 and 31 March it held twelve
inmates; between 1 and 8 April it held eleven inmates; between 9 and
13 April twelve inmates; between 14 and 19 April nine inmates;
between 20 and 28 April ten inmates; on 29 and 30 April twelve
inmates; and between 1 and 4 May thirteen inmates. Depending on the
number of inmates, the applicant’s personal space varied from
3.6 to 2.5 sq. m. On 5 May 2009 the applicant was transferred
back to cell no. 130/2.
On
25 May 2009 the applicant was transferred to cell no. 158, which
measured 20.3 sq. m and had twelve bunks. On 25 May it held twelve
inmates; on 26 May eleven inmates; on 27 May ten inmates; and between
28 May and 9 June twelve inmates. Depending on the number of
inmates the applicant’s personal space varied from 2 to 1.7 sq.
m. On 9 June 2009 the applicant was transferred to another cell.
On
10 June 2009 the applicant was placed in cell no. 160, which measured
20.9 sq. m and had eight bunks. Between 9 June and 14 August
2009 the cell held seven or eight inmates. The applicant’s
personal space amounted to less than 3 sq. m. In addition, the
inmates smoked in the cell, which had an adverse effect on the
applicant’s health as the cell was not properly ventilated.
The
applicant substantiated his account of the conditions of detention in
the remand prison by the following documents: a witness statement by
Mr K. Petrov, who was detained with the applicant in cell no. 82,
dated 16 February 2011; a witness statement by Mr Z. Elmuratov, who
was detained with the applicant in cells no. 130/2 and no. 149,
dated 16 February 2011; a witness statement by Ms E. Polyakova,
head of a human rights NGO which monitored the conditions of
detention in remand prison IZ 47/4, dated 8 February 2011; and a
number of photographs of the applicant’s detention cells.
() Conditions
of the applicant’s transfer to the courthouse and conditions of
his detention there
On
a number of occasions between 4 and 29 March
2009 the applicant was handcuffed and taken to the Dzerzhinskiy
District Court in a lorry for transporting detainees (Avtozak). The
lorry was equipped with three cages measuring 1.5 m by 3 m; each cage
contained ten inmates, who were transported in cramped conditions.
Upon
arrival in the courthouse, the applicant was placed for several hours
in a cell without windows, measuring 12 sq. m, with a narrow bench
and without ventilation. He was usually detained there with two other
men. No food or drink was given to him in the courthouse.
() The
applicant’s complaints about the conditions of detention and
the lack of medical assistance
On
18 March 2009 the applicant complained to the Dzerzhinskiy
District Court, alleging, amongst other things, that the conditions
of his detention were inadequate (see paragraph 27 above).
In
its decision of 18 March 2009 the Dzerzhinskiy
District Court left the applicant’s complaint about the
conditions of his detention unexamined. The applicant did not raise
the issue of the conditions of his detention on appeal as he
considered that an appeal would be ineffective.
From
the documents submitted it appears that the applicant neither applied
for medical assistance while in remand prison IZ-47/4 nor complained
about the lack of such assistance to the prison’s
administration.
(iv) The applicant’s requests for
refugee status and temporary asylum
On
20 October 2008 the applicant applied to the St
Petersburg Department of the Federal Migration Service (“the
FMS”) for refugee status in Russia, referring to his
politically motivated persecution in Uzbekistan and the risk of
ill-treatment.
On
22 December 2008 the FMS rejected the applicant’s request,
stating that it had been motivated by an attempt to avoid lawful
criminal prosecution in Uzbekistan and that his allegations of a risk
of ill-treatment there were unsubstantiated. The applicant was
informed of the refusal on 22 January 2009.
On
4 March 2009 (in the documents submitted the date is sometimes given
as 4 April 2009) the Dzerzhinskiy District Court upheld the refusal
by the FMS. The applicant did not appeal against that decision and
the decision of 22 December 2008 became final.
On
8 April 2009 (in the documents submitted the date is sometimes given
as 27 April 2009) the applicant applied to the
FMS for temporary asylum in Russia.
On
6 May 2009 the FMS rejected the request. The applicant appealed to
the Russian FMS against the refusal.
On
6 August 2009 the Russian FMS overruled the decision of 6 May
2009 and referred the applicant’s request back for a fresh
examination.
On
11 November 2009 the FMS again rejected the applicant’s request
for temporary asylum. The applicant appealed to the Russian FMS.
On
23 February 2010 (in the documents submitted the date is sometimes
given as 28 February 2010) the Russian FMS overruled the decision of
11 November 2009 and again referred the applicant’s
request back for a fresh examination.
On
30 April 2010 the FMS rejected the applicant’s request for
temporary asylum for the third time.
On
24 May 2010 the applicant again appealed against the refusal to the
Russian FMS. On 30 August 2010 the Russian FMS overruled the decision
of 30 April 2010 and again referred the applicant’s request
back for a fresh examination.
On
16 December 2010 the FMS rejected the applicant’s request for
temporary asylum for the fourth time. The applicant appealed against
the refusal to the Russian FMS. The proceedings appear to be still
pending.
(v) TV news broadcasts of 3 March 2009
At
6 p.m. and 11 p.m. on 3 March 2009 the Russian television channel NTV
broadcast its regular TV news bulletin in St Petersburg. News
reports, quoting the press unit of the Main Department of the
Interior of St Petersburg and the Leningrad Region (the GUVD),
displayed full-face and profile photographs of the applicant and
contained the following information:
Newscaster: “... a terrorist from
Uzbekistan, who worked in St Petersburg as a driver of a KAMAZ lorry,
was arrested today in the city centre by Interpol officers. The
leading member of the Wahhabi extremist religious movement had moved
to St Petersburg two years ago and since then had worked as a
driver for various companies. Having graduated from a foreign
languages institute, he worked in Uzbekistan as a mullah. The
52-year-old Urinboy Ergashev has been on the authorities’
wanted list for two years; he has been charged with a number of
serious crimes, including terrorism ...”
Newscaster: “Mr D.R., the deputy head of
the National Interpol Bureau in St Petersburg and the Leningrad
Region, commented ...”
Mr D.R.: “... having studied the ideas of
the political extremist movement ... [the applicant] had created the
‘Khalka’ group to spread the ideas of the Wahhabi
movement in order to change the existing State order in Uzbekistan,
seize power and remove lawfully elected officials ...”
Newscaster: “... the law-enforcement bodies
presume that the group headed by Ergashev was planning to create an
Islamic State in the Fergana valley; it was financed by foreign
organisations from Afghanistan and Pakistan prohibited by the Uzbek
authorities. Currently the arrested man ... is in detention and after
all the paper formalities he will be extradited to his homeland,
where a trial is awaiting him ...”
2. The Government’s submissions as to the facts
(a) Conditions of the applicant’s
detention between 3 and 7 March 2009 in the 78th office of the St
Petersburg department of the interior
The
applicant was detained in the 78th office of the St Petersburg
department of the interior from 10.30 a.m. on 3 March 2009 until an
unspecified time on 7 March 2009.
The
applicant was detained in an
administrative-detention cell measuring between
3 and 3.2 sq. m, which was not equipped for sleeping, and therefore
no bed linen was provided. The applicant was allowed to use the
toilet in the adjacent area of the police station with the permission
of the police officers. The toilet was equipped with cold water.
There were no shower facilities. The applicant’s cell was
ventilated twice a day by the police officers. The applicant was not
provided with food by the authorities, but the officers allowed his
relatives to bring him food and drink.
(b) Conditions of the applicant’s
transfer to the courthouse
The
applicant was transported from the detention centre to the courthouse
on three occasions, on 17 and 18 March and on 27 May 2009, in
specially equipped GAZ-3307 and GAZ-32594 vehicles. The vehicles have
twenty-six seating places, which are divided between two shared cells
and one solitary cell.
On
17 March 2009 the applicant was transported in the same vehicle with
twenty-three other detainees; on 18 March 2009 with twelve other
detainees; and on 27 May 2009 with ten other detainees.
On
each occasion the applicant was provided with a daily ration of food
as prescribed by the relevant regulations.
(c) Conditions
of the applicant’s detention in remand
prison IZ-47/4 in St Petersburg
From
7 March to 14 August 2009 the applicant was detained in seven
different cells; in each cell the number of inmates matched the
number of bunk beds, and therefore the applicant had an individual
bed. He was provided with bed linen and cutlery. The applicant was
detained:
from
7 to 11 March 2009 in cell no. 82, measuring 18.1 sq. m, with three
other inmates (capacity: four inmates);
from
11 to 30 March 2009 in cell no. 130/2, measuring 32.3 sq. m, with
seven other inmates (capacity: eight);
from
30 March to 5 May 2009 in cell no. 130/3, measuring 32.2 sq. m,
with seven other inmates (capacity: eight);
from
5 May to 25 May 2009 in cell no. 149, measuring 20.3 sq. m, with
four other inmates (capacity: five);
from
25 May to 9 June 2009 in cell no. 158, measuring 20.3 sq. m, with
four other inmates (capacity: five);
from
9 to 10 June 2009 in cell no. 163, measuring 9.8 sq. m, with one
other inmate (capacity: two);
from
10 June to 14 August 2009 in cell no. 160, measuring 20.9 sq. m,
with four other inmates (capacity: five).
The
Government substantiated their account of the amount of personal
space afforded to the applicant in the remand prison with
poor quality copies of several pages of a registration log “on
transfers of inmates between cells” dated February 2009 to
February 2010. The document did not contain any comprehensible
information and included tables of numbers; no names or other
information about the inmates were provided. The Government also
furnished several statements by the remand prison’s staff
confirming the number of bunk beds in each of the applicant’s
cells. These statements neither provided information as to the actual
number of inmates detained in each cell nor specified whether the
number of detainees exceeded the cell’s capacity at the given
period of time.
According
to the Government, the sanitary conditions in each cell complied with
the relevant regulations. Medical staff of the remand prison checked
the sanitary conditions of all cells on a daily basis and disinfected
the cells at prescribed intervals. The ventilation in all cells was
in working condition, and each cell was equipped with a cold water
basin. On request the inmates could obtain hot water; they were also
allowed to use electric kettles. The applicant was allowed a weekly
fifteen-minute shower; his bed linen was changed weekly. The
inmates’ laundry was collected for washing once a week; the
inmates were also allowed to do their laundry in plastic buckets
provided by the administration.
According
to the copies of documents enclosed with the Government’s
submissions, from 11 March to 25 May 2009 the applicant was detained
in the remand prison’s tuberculosis centre to receive medical
treatment for the disease.
(d) The applicant’s detention
pending extradition
According
to the Government, the applicant’s detention on remand was
based on Article 466 §§ 1 and 2 of the CCP.
On
3 September 2008 the Smolninskiy District Court authorised the
applicant’s detention from 1 September 2008 to 2 February 2009.
On
17 October 2008 the Smolninskiy District Court again authorised the
applicant’s detention with a view to extradition.
According
to the Government, on 4 March 2009 the Dzerzhinskiy District Court
authorised the applicant’s detention. However, from the
documents submitted it appears that on 6 March 2009 the District
Court actually refused to authorise the applicant’s detention
(see paragraph 26 above).
On
6 March 2009 the Tsentralniy district
prosecutor’s office of St Petersburg detained the
applicant on the basis of the Andijan Town Court’s
detention order of 2 March 2009.
(e) TV news
broadcasts of 3 March 2009
In
their observations of 17 January 2011 the Government submitted that
the text of the TV broadcast had been prepared on the basis of the
official statement provided by the National Interpol Bureau in
St Petersburg and the international search warrant issued
against the applicant. The broadcast had stated that the applicant
had been charged with serious crimes by the Uzbek authorities, but
not that he was guilty. The law-enforcement bodies had only suspected
that the applicant was pursuing extremist goals. The expression
“terrorist from Uzbekistan” had been used by the TV
journalists and had not been part of the official information
statement issued by the National Interpol Bureau in St Petersburg.
II. RELEVANT INTERNATIONAL AND
DOMESTIC LEGAL MATERIAL
A. Detention pending extradition and judicial review of
detention
1. The Russian Constitution
The Constitution guarantees the right to liberty
(Article 22):
“1. Everyone has the right to liberty
and personal integrity.
2. Arrest, placement in custody and detention
are permitted only on the basis of a judicial decision. Prior to a
judicial decision, an individual may not be detained for longer than
forty-eight hours.”
2. European Convention on Extradition
Article 16 of the European Convention on Extradition
of 13 December 1957 (CETS no. 024), to which Russia is a party,
provides as follows:
“1. In case of urgency the competent
authorities of the requesting Party may request the provisional
arrest of the person sought. The competent authorities of the
requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if,
within eighteen days of arrest, the requested Party has not received
the request for extradition and the documents mentioned in Article
12. It shall not, in any event, exceed forty days from the date of
that arrest. The possibility of provisional release at any time is
not excluded, but the requested Party shall take any measures which
it considers necessary to prevent the escape of the person sought.”
3. The 1993 Minsk Convention
The
CIS Convention on legal aid and legal relations in civil, family and
criminal cases (the 1993 Minsk Convention), to which both Russia and
Uzbekistan are parties, provides that a request for extradition must
be accompanied by a detention order (Article 58 § 2).
A
person whose extradition is sought may be arrested before receipt of
a request for his or her extradition. In such cases a special request
for arrest, containing a reference to the detention order and
indicating that a request for extradition will follow, must be sent.
A person may also be arrested in the absence of such a request if
there are reasons to suspect that he or she has committed, in the
territory of the other Contracting Party, an offence entailing
extradition. The other Contracting Party must be immediately informed
of the arrest (Article 61).
A
person arrested under Article 61 must be released if no request for
extradition is received within forty days of the arrest (Article 62 §
1).
4. The Code of Criminal Procedure
The term “court” is defined by the Code of
Criminal Procedure (“the CCP”) of 2002 as “any
court of general jurisdiction which examines a criminal case on the
merits and delivers decisions provided for by this Code”
(Article 5 § 48). The term “judge” is defined by the
CCP as “an official empowered to administer justice”
(Article 5 § 54).
A district court has the power to examine all criminal
cases except for those falling within the respective jurisdictions of
a justice of the peace, a regional court or the Supreme Court of
Russia (Article 31 § 2).
Chapter
13 of the CCP (“Preventive measures”) governs the use of
preventive measures (меры пресечения),
which include, in particular, placement in custody. 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
by 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 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 may be
granted only if the person is charged with serious or particularly
serious criminal offences (Article 109 § 3).
Chapter 16 (“Complaints about acts and decisions
by courts and officials involved in criminal proceedings”)
provides for the judicial review of decisions and acts or failures to
act by an investigator or a prosecutor that are capable of adversely
affecting the constitutional rights or freedoms of parties to
criminal proceedings (Article 125 § 1). The court must examine
the complaint within five days of its receipt.
Chapter 54 (“Extradition of a person for
criminal prosecution or execution of sentence”) regulates
extradition procedures. On receipt of a request for extradition not
accompanied by an arrest warrant issued by a foreign court, a
prosecutor must decide on the preventive measure to be applied to the
person whose extradition is sought. The measure must be applied in
accordance with the established procedure (Article 466 § 1).
Upon receipt of a request for extradition accompanied by an arrest
warrant issued by a foreign judicial body, a prosecutor may place the
person whose extradition is being sought under house arrest or in
custodial detention without prior approval of his or her decision by
a court of the Russian Federation (Article 466 § 2).
An extradition decision made by the Prosecutor General
may be challenged before a court. Issues of guilt or innocence are
not within the scope of judicial review, which is limited to an
assessment of whether the extradition order was made in accordance
with the procedure set out in the relevant international and domestic
law (Article 463 §§ 1 and 6).
5. The Code of Civil Procedure
A person may apply for judicial review of decisions
and acts or failures to act by a State body or a State official that
are capable of violating his or her rights or freedoms, hindering the
exercise of his or her rights and freedoms, or imposing an obligation
or liability unlawfully (Articles 254 § 1 and
255). If the court finds the application well-founded, it must order
the State body or State official concerned to remedy the violation or
remove the obstacle to the exercise of the rights and freedoms in
question (Article 258 § 1).
6. Case-law of the Constitutional Court
(a) Constitutional Court decision no.
292-O of 15 July 2003
On 15 July 2003 the Constitutional Court issued
decision no. 292 O concerning a complaint by Mr Khudoyorov of ex
post facto extension of his “detention during judicial
proceedings” by the Vladimir Regional Court decision. It held
as follows:
“Article 255 § 3 of the Code of Criminal
Procedure of the Russian Federation provides that the [trial court]
may ... once six months has passed since the case was sent to it,
extend a defendant’s detention for successive periods of up to
three months. It does not contain, however, any provisions permitting
the courts to take a decision extending a defendant’s detention
once the previously authorised time limit has expired, in which
event the person is detained for a period without a judicial
decision. Nor do other rules of criminal procedure provide for such a
possibility. Moreover, Article 10 § 2 and Article 109 § 4
of the Code of Criminal Procedure expressly require the court,
prosecutor, investigator ... to immediately release anyone who is
unlawfully held in custody beyond the time-limit established in the
Code. Such is also the requirement of Article 5 §§ 3 and 4
of the European Convention ... which is an integral part of the legal
system of the Russian Federation, pursuant to Article 15 § 4
of the Russian Constitution ...”
(b) Constitutional Court 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 established
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
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 laid down in 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 abiding by the procedure
established in the CCP, or in excess of the time-limits fixed
therein.
(c) Constitutional Court 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 the aim of 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 keeping a person in custody with
the aim of extradition. That was a matter for the courts of general
jurisdiction.
(d) Constitutional Court 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 the 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.
(e) Ruling no. 22 of 29 October 2009 of
the Plenary Session of the Supreme Court of the Russian Federation
In
this ruling the Supreme Court reiterated that the arrest and
detention of a person with the aim of extraditing him or her under
Article 466 of the CCP should comply with the requirements of
Article 108 of the CCP, and that detention pending extradition
could be extended only in compliance with the requirements of Article
109 of the CCP.
7. Conditions of detention in remand prisons
The 1995 Law on the conditions of detention of
suspects and accused persons (as amended) provides that detainees
should be kept in conditions which satisfy health and hygiene
requirements. They should be provided with an individual sleeping
place and be given bedding, tableware and toiletries. Each inmate
should have no less than four square metres of personal space in his
or her cell (section 23). The Law also provides that inmates are
entitled to medical assistance (section 17). If an inmate’s
health deteriorates, the medical officers of the remand prison are
obliged to examine the inmate promptly and inform him or her of the
results of the examination in writing. If the administration refuses,
the refusal can be appealed against to a prosecutor or court. If an
inmate suffers from a serious disease, the administration of the
remand prison is obliged immediately to inform the prosecutor, who
can carry out an inquiry into the matter (section 24).
B. Relevant documents concerning the use of diplomatic
assurances and the situation in Uzbekistan
The European Committee for the Prevention of Torture
(“the CPT”), in its 15th General Report of 22 September
2005 on its activities covering the period from 1 August 2004 to 31
July 2005, expressed concern about reliance on diplomatic assurances
in the light of the absolute prohibition on torture:
“38. Reference was made in the Preface
to the potential tension between a State’s obligation to
protect its citizens against terrorist acts and the need to uphold
fundamental values. This is well illustrated by the current
controversy over the use of ‘diplomatic assurances’ in
the context of deportation procedures. The prohibition of torture and
inhuman or degrading treatment encompasses the obligation not to send
a person to a country where there are substantial grounds for
believing that he or she would run a real risk of being subjected to
such methods. In order to avoid such a risk in given cases, certain
States have chosen the route of seeking assurances from the country
of destination that the person concerned will not be ill-treated.
This practice is far from new, but has come under the spotlight in
recent years as States have increasingly sought to remove from their
territory persons deemed to endanger national security. Fears are
growing that the use of diplomatic assurances is in fact
circumventing the prohibition of torture and ill-treatment.
39. The seeking of diplomatic assurances from
countries with a poor overall record in relation to torture and
ill-treatment is giving rise to particular concern. It does not
necessarily follow from such a record that someone whose deportation
is envisaged personally runs a real risk of being ill-treated in the
country concerned; the specific circumstances of each case have to be
taken into account when making that assessment. However, if in fact
there would appear to be a risk of ill-treatment, can diplomatic
assurances received from the authorities of a country where torture
and ill treatment is widely practised ever offer sufficient
protection against that risk? It has been advanced with some cogency
that even assuming those authorities do exercise effective control
over the agencies that might take the person concerned into their
custody (which may not always be the case), there can be no guarantee
that assurances given will be respected in practice. If these
countries fail to respect their obligations under international human
rights treaties ratified by them, so the argument runs, why should
one be confident that they will respect assurances given on a
bilateral basis in a particular case?
40. In response, it has been argued that
mechanisms can be devised for the post return monitoring of the
treatment of a person deported, in the event of his/her being
detained. While the CPT retains an open mind on this subject, it has
yet to see convincing proposals for an effective and workable
mechanism. To have any chance of being effective, such a mechanism
would certainly need to incorporate some key guarantees, including
the right of independent and suitably qualified persons to visit the
individual concerned at any time, without prior notice, and to
interview him/her in private in a place of their choosing. The
mechanism would also have to offer means of ensuring that immediate
remedial action is taken, in the event of it coming to light that
assurances given were not being respected.”
United
Nations (“UN”) General Assembly Resolution 62/148 of
18 December 2007 (“Torture and other cruel, inhuman or
degrading treatment or punishment” (UN Doc.:A/RES/62/148))
reads as follows:
“The General Assembly ...
12. Urges States not to expel, return (refouler),
extradite or in any other way transfer a person to another State
where there are substantial grounds for believing that the person
would be in danger of being subjected to torture, and recognizes that
diplomatic assurances, where used, do not release States from their
obligations under international human rights, humanitarian and
refugee law, in particular the principle of non-refoulement ...”
In
his interim report submitted in accordance with Assembly Resolution
59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of
the Commission on Human Rights on torture and other cruel, inhuman or
degrading treatment or punishment, Manfred Nowak, reached the
following conclusions:
“51. It is the view of the Special
Rapporteur that diplomatic assurances are unreliable and ineffective
in the protection against torture and ill-treatment: such assurances
are sought usually from States where the practice of torture is
systematic; post-return monitoring mechanisms have proven to be no
guarantee against torture; diplomatic assurances are not legally
binding, therefore they carry no legal effect and no accountability
if breached; and the person whom the assurances aim to protect has no
recourse if the assurances are violated. The Special Rapporteur is
therefore of the opinion that States cannot resort to diplomatic
assurances as a safeguard against torture and ill-treatment where
there are substantial grounds for believing that a person would be in
danger of being subjected to torture or ill treatment upon
return.
52. The Special Rapporteur calls on
Governments to observe the principle of non refoulement
scrupulously and not expel any person to frontiers or territories
where they might run the risk of human rights violations, regardless
of whether they have officially been recognised as refugees.”
Specifically referring to the situation regarding
torture in Uzbekistan and returns to torture effected in reliance
upon diplomatic assurances from the Uzbek authorities, the UN Special
Rapporteur on Torture stated to the 2nd Session of the UN Human
Rights Council on 20 September 2006:
“The practice of torture in Uzbekistan is
systematic, as indicated in the report of my predecessor Theo van
Boven’s visit to the country in 2002. Lending support to this
finding, my mandate continues to receive serious allegations of
torture by Uzbek law enforcement officials ... Moreover, with respect
to the events in May 2005 in Andijan, the UN High Commissioner for
Human Rights reported that there is strong, consistent and credible
testimony to the effect that Uzbek military and security forces
committed grave human rights violations there. The fact that the
Government has rejected an international inquiry into the Andijan
events, independent scrutiny of the related proceedings, and that
there is no internationally accepted account of the events, is deeply
worrying. Against such significant, serious and credible evidence of
systematic torture by law enforcement officials in Uzbekistan, I
continue to find myself appealing to Governments to refrain from
transferring persons to Uzbekistan. The prohibition of torture is
absolute, and States risk violating this prohibition – their
obligations under international law – by transferring persons
to countries where they may be at risk of torture. I reiterate that
diplomatic assurances are not legally binding, undermine existing
obligations of States to prohibit torture, are ineffective and
unreliable in ensuring the protection of returned persons, and
therefore shall not be resorted to by States.”
Further
referring to the situation regarding torture in Uzbekistan, the UN
Special Rapporteur on Torture stated as follows to the 3rd Session of
the UN Human Rights Council on 18 September 2008:
“741. The Special Rapporteur ...
stressed that he continued to receive serious allegations of torture
by Uzbek law enforcement officials ...
743. Moreover, with respect to the events in
May 2005 in Andijan, the UN High Commissioner for Human Rights
reported that there is strong, consistent and credible testimony to
the effect that Uzbek military and security forces committed grave
human rights violations there. The fact that the Government has
rejected an international inquiry into the Andijan events, and any
independent scrutiny of the related proceedings, and that there is no
internationally accepted account of the events, is deeply worrying.
Even more so, given that no independent monitoring of human rights is
currently being conducted.
744. In light of the foregoing, there is
little evidence available, including from the Government that would
dispel or otherwise persuade the Special Rapporteur that the practice
of torture has significantly improved since the visit which took
place in 2002 ...”
The
UN High Commissioner for Refugees’ Note on Diplomatic
Assurances and International Refugee Protection published on
10 August 2006 reads as follows:
“22. In general, assessing the
suitability of diplomatic assurances is relatively straightforward
where they are intended to ensure that the individual concerned will
not be subjected to capital punishment or certain violations of fair
trial rights as a consequence of extradition. In such cases, the
wanted person is transferred to a formal process, and the requesting
State’s compliance with the assurances can be monitored. While
there is no effective remedy for the requested State or the
surrendered person if the assurances are not observed, non-compliance
can be readily identified and would need to be taken into account
when evaluating the reliability of such assurances in any future
cases.
23. The situation is different where the
individual concerned risks being subjected to torture or other cruel,
inhuman or degrading treatment in the receiving State upon removal.
It has been noted that ‘unlike assurances on the use of the
death penalty or trial by a military court, which are readily
verifiable, assurances against torture and other abuse require
constant vigilance by competent and independent personnel’. The
Supreme Court of Canada addressed the issue in its decision in Suresh
v. Canada (Minister of Citizenship and Immigration),
contrasting assurances in cases of a risk of torture with those given
where the person extradited may face the death penalty, and
signalling
‘... the difficulty in relying too heavily on
assurances by a state that it will refrain from torture in the future
when it has engaged in illegal torture or allowed others to do so on
its territory in the past. This difficulty becomes acute in cases
where torture is inflicted not only with the collusion but through
the impotence of the state in controlling the behaviour of its
officials. Hence the need to distinguish between assurances regarding
the death penalty and assurances regarding torture. The former are
easier to monitor and generally more reliable than the latter.’
24. In his report to the UN General Assembly
of 1 September 2004, the special Rapporteur of the UN Commission on
Human Rights on torture and other cruel, inhuman or degrading
treatment or punishment examined the question of diplomatic
assurances in light of the non-refoulement obligations
inherent in the absolute and non-derogable prohibition of torture and
other forms of ill-treatment. Noting that in determining whether
there are substantial grounds for believing that a person would be in
danger of being subjected to torture, all relevant considerations
must be taken into account, the Special Rapporteur expressed the view
that:
‘in circumstances where there is a consistent
pattern of gross, flagrant or mass violations of human rights, or of
systematic practice of torture, the principle of non refoulement
must be strictly observed and diplomatic assurances should not be
resorted to.’”
The
relevant passage of the United States Department of State’s
2010 Country Reports on Human Rights Practices concerning Uzbekistan,
dated 8 April 2011, reads as follows:
“Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
Although the constitution and law prohibit such
practices, law enforcement and security officers routinely beat and
otherwise mistreated detainees to obtain confessions or incriminating
information. Sources reported that torture and abuse were common in
prisons, pre-trial facilities, and local police and security service
precincts. Reported methods of torture included severe beatings,
denial of food, sexual abuse, tying and hanging by the hands, and
electric shock. Family members of prisoners reported several cases of
medical abuse, and one person reportedly remained in forced
psychiatric treatment. The government reported that during the first
six months of the year, it opened 226 criminal cases against 285
employees of law enforcement bodies. Of these, 75 persons were
accused of charges related to abuse of power, and four were charged
with torture or other brutal or degrading treatment. The remaining
cases were for unspecified offenses. During the first nine months of
the year, the government dismissed and brought criminal charges
against 186 employees of law enforcement bodies for unstated
reasons ...
Prison and Detention Center Conditions
Prison conditions were in some circumstances life
threatening. Officials reported that the prison system is filled to
only 74 percent of capacity, but reports of overcrowding were common,
as were reports of severe abuse and shortages of medicine. Inmates
and their families reported that food and water were of poor quality
but generally available. There were reports of political prisoners
being held in cells without proper ventilation, and prisoners
occasionally were subjected to extreme temperatures. Family members
of inmates reported incidents of sexual abuse. Family members also
reported that officials frequently withheld or delayed delivery of
food and medicine intended for prisoners.
Relatives of prisoners reported the deaths of several
prisoners serving sentences, most of whom received sentences related
to religious extremism. In some cases, family members reported that
the body of the prisoner showed signs of beating or other abuse, but
authorities pressured the family to bury the body before examination
by a medical professional ...
According to family members and some NGOs, authorities
failed to release prisoners, especially those convicted of religious
extremism, at the end of their terms. Prison authorities often
extended inmates’ terms by accusing them of additional crimes
or claiming the prisoners represented a continuing danger to society
...”
Amnesty International issued on 1 May 2010 a document
entitled “Uzbekistan: A Briefing on Current Human Rights
Concerns”, stating the following:
“Amnesty International believes that there has
been a serious deterioration in the human rights situation in
Uzbekistan since the so-called Andizhan events in May 2005. ...
Particularly worrying in the light of Uzbekistan’s
stated efforts to address impunity and curtail the use of cruel,
inhuman and degrading treatment have been the continuing persistent
allegations of torture or other ill-treatment by law enforcement
officials and prison guards, including reports of the rape of women
in detention. ...
Despite assertions by Uzbekistan that the practice of
torture has significantly decreased, Amnesty International continues
to receive reports of widespread torture or other ill-treatment of
detainees and prisoners.
According to these reports, in most cases the
authorities failed to conduct prompt, thorough and impartial
investigations into the allegations of torture or other
ill treatment. Amnesty International is concerned that impunity
prevails as prosecution of individuals suspected of being responsible
for torture or other ill treatment remains the exception rather
than the rule. ...
Allegations have also been made that individuals
returned to Uzbekistan from other countries pursuant to extradition
requests have been held in incommunicado detention, thereby
increasing their risk of being tortured or otherwise ill-treated and
have been subjected to unfair trial. In one case in 2008, for
example, a man who was returned to Uzbekistan from Russia was
sentenced to 11 years’ imprisonment after an unfair trial. His
relatives reported that, upon his return to Uzbekistan, he was held
incommunicado for three months during which time he was subjected to
torture and other ill-treatment in pre-trial detention. He did not
have access to a lawyer of his own choice and the trial judge ruled
evidence reportedly adduced as a result of torture admissible. ...
The government continued its strict control over
religious communities, compromising the enjoyment of their right to
freedom of religion. Those most affected were members of unregistered
groups such as Christian Evangelical congregations and Muslims
worshipping in mosques outside state control.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
CONCERNING THE APPLICANT’S EXTRADITON
The
applicant complained under Article 3 of the Convention that his
extradition to Uzbekistan would subject him to a real risk of torture
and ill-treatment. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
106. The
Government submitted that the applicant’s allegation of
politically motivated persecution had been assessed by the Russian
courts when examining his appeals against the extradition order, and
rejected as unfounded. The Russian courts had relied on the statement
from the Prosecutor General’s Office of
Uzbekistan to the effect that the applicant would face no risk of
ill-treatment if he were to be extradited to Uzbekistan and on the
fact that the Russian authorities did not have any information
confirming his allegation. Referring to the assurances from the Uzbek
authorities, the Government argued that the applicant would not be
subjected to ill-treatment or punishment contrary to Article 3 of the
Convention.
The
applicant maintained that he had argued before the Russian courts
that he faced a real risk of ill-treatment and political persecution
in Uzbekistan. He had submitted reports on Uzbekistan by the UN
institutions and international NGOs confirming that torture was
widespread in detention facilities and that this information had not
received proper assessment by the Russian authorities. He pointed out
that the courts had rejected his arguments without giving any reasons
except a reference to the assurances given by the Uzbek authorities.
Finally, he referred to a number of cases examined by the Court in
which it had been established that extradition to Uzbekistan of a
person sought for political crimes would constitute a violation of
Article 3.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
For
a summary of the relevant general principles emerging from the
Court’s case-law see Mamatkulov and Askarov v. Turkey
([GC], nos. 46827/99 and 46951/99, §§ 66-70, ECHR
2005 I).
From the material submitted by the parties it is
clear that the applicant was arrested in Russia and subsequently
detained at the request of the Uzbek authorities, who suspected him
of a number of crimes, including an attempt to overthrow the
constitutional order and membership of extremist organisations. The
Russian authorities commenced extradition proceedings against him.
Throughout the proceedings the applicant claimed that his extradition
to Uzbekistan would expose him to a danger of ill treatment. He
also lodged an application for asylum, reiterating his fears of
torture and persecution for political motives. He supported his
submissions with reports prepared by UN institutions and
international NGOs describing the ill-treatment of detainees in
Uzbekistan. The Russian authorities ordered his extradition to
Uzbekistan based on assurances from the Uzbek authorities.
The
Court’s task is to establish whether there exists a real risk
of ill-treatment in the event of the applicant’s extradition to
Uzbekistan. Since he has not yet been extradited owing to the
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. It follows that,
although the historical position is of interest in so far as it may
shed light on the current situation and its likely evolution, it is
the present conditions which are decisive (see Chahal v. the
United Kingdom, 15 November 1996, § 86, Reports
of Judgments and Decisions 1996-V).
As
regards the applicant’s allegation that detainees suffer
ill treatment in Uzbekistan, the Court has recently acknowledged
that a general problem still persists in that country in this regard
(see, for example, Karimov v. Russia, no. 54219/08, §§
79-85, 29 July 2010; Ismoilov and Others v. Russia, no.
2947/06, §§ 120-121, 24 April 2008; and Muminov
v. Russia, no. 42502/06, §§ 93-96, 11 December
2008). No concrete evidence has been produced to demonstrate any
fundamental improvement in this field in Uzbekistan in the last few
years (see paragraphs 100, 101, 103 and 104 above). The Court
therefore considers that the ill-treatment of detainees is a
pervasive and enduring problem in Uzbekistan.
As
to the applicant’s personal situation, the Court observes that
he was charged with a number of politically motivated crimes. Given
that an arrest warrant was issued in respect of the applicant, it is
most likely that he would be placed in custody directly after his
extradition and therefore would run a serious risk of ill-treatment.
As
to the Government’s argument that assurances were obtained from
the Uzbek authorities, the Court has already cautioned against
reliance on diplomatic assurances against torture from a State where
torture is endemic or persistent (see Chahal, cited above, and
Saadi v. Italy [GC], no. 37201/06, §§ 147-148,
ECHR 2008 ...). Given that the practice of torture in Uzbekistan
is described by reputable international sources as systematic, the
Court is not persuaded that the assurances from the Uzbek authorities
offered a reliable guarantee against the risk of ill-treatment.
Accordingly, the applicant’s forcible return to
Uzbekistan would give rise to a violation of Article 3 as he would
face a serious risk of being subjected there to torture or inhuman or
degrading treatment. Therefore, the Court decides to maintain the
application of Rule 39 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT
OF THE CONDITIONS OF THE APPLICANT’S DETENTION
116. The applicant
complained under Article 3 of the Convention about the conditions of
his detention in the police station in March 2009 and in remand
prison IZ-47/4 between March and August 2009, and the conditions in
which he was transported to the Dzerzhinskiy District Court in March
2009. Under the same heading the applicant complained of the lack of
medical assistance during his detention in remand prison IZ-47/4.
Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
The
Government contended that this complaint was inadmissible on
account of the applicant’s failure to exhaust domestic
remedies. They pointed out that the applicant had not complained
about the conditions of his detention in the police station in March
2009 and in remand prison IZ 47/4 to the
competent domestic authorities. In any event, this complaint should
be dismissed as unsubstantiated as the conditions of the applicant’s
detention in the above-mentioned facilities and of his transfer to
the Dzerzhinskiy District Court had been compatible with the
requirements of Article 3.
The
applicant contended that the conditions of his detention in the
above-mentioned facilities and his transfer to the courthouse had
caused him mental and physical suffering and amounted to
ill-treatment. Referring to the Court’s case-law, he further
stated that there was no effective domestic remedy against the
structural problem of poor conditions of detention in Russia.
B. The Court’s assessment
1. Admissibility
(a) The complaint concerning the lack of
medical assistance in remand prison IZ-47/4
between 7 March and 14 August 2009
The
Court notes that the applicant failed to furnish any evidence to
substantiate his allegations of a lack of medical assistance. In
addition, it does not appear from the material submitted that he ever
complained on that account to the administration of the detention
facility.
It
follows that this part of the applicant’s complaint under
Article 3 must be rejected pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
(b) The complaint concerning the
conditions of the applicant’s transfer to and detention in the
courthouse
The
Court notes that the applicant failed to furnish any evidence to
substantiate his allegations about the conditions of his transfer to
the courthouse and of his detention there.
It
follows that this part of the applicant’s complaint under
Article 3 must be rejected pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
(c) The complaint concerning the
conditions of the applicant’s detention at the 78th office of
the St Petersburg department of the interior and in remand prison
IZ-47/4 in St Petersburg
The Court has already on a number of occasions
examined a similar objection by the Russian Government as regards the
exhaustion of domestic remedies and dismissed it. In particular, the
Court held in the relevant cases that the Government had not
demonstrated what redress could have been afforded to the applicants
by a prosecutor, a court or another State agency, bearing in mind
that the problems arising from the conditions of their detention were
apparently of a structural nature and did not concern their personal
situation alone (see Kalashnikov v. Russia
(dec.), no. 47095/99, 18 September 2001; Moiseyev v.
Russia (dec.), no. 62936/00, 9 December 2004;
and Guliyev v. Russia, no. 24650/02, § 34, 19
June 2008).
In the present case, the Court notes that, in spite
of the Government’s contention to the contrary, the applicant
unsuccessfully raised the issue of the conditions of his detention
with the domestic authorities (see paragraph 47 above). Further, the
Government have failed to submit evidence as to the existence of any
domestic remedy by which the applicant could have complained about
the general conditions of his detention, in particular with regard to
the structural problem of overcrowding in Russian detention
facilities, or demonstrating that the remedies available to him were
effective, that is to say, that they could have prevented violations
from occurring or continuing, or that they could have afforded him
appropriate redress (see, to the same effect, Babushkin v. Russia,
no. 67253/01, § 37, 18 October 2007, and, more recently,
Aleksandr Makarov v. Russia, no. 15217/07, §§
82-91, 12 March 2009). Accordingly, the Court dismisses the
Government’s objection as to non exhaustion of domestic
remedies.
The
Court considers that the applicant’s complaints about the
conditions of his detention are not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention.
It further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
2. Merits
(a) Conditions of the applicant’s
detention between 3 and 7 March 2009 in the 78th
office of the St Petersburg department of the interior
(i) Submissions by the parties
The Government submitted that the applicant’s
detention had complied with the requirements of Article 3 of the
Convention. They stated that the police officers had tried to improve
the conditions of the applicant’s detention in the
administrative-detention cell. They had allowed his relatives to
bring him food and given him their permission to use a toilet located
on the premises of the police station.
The
applicant submitted that he had spent several days in appalling
conditions in a cell which was designed for a stay of only a few
hours.
(ii) The Court’s assessment
Article 3,
as the Court has observed on many occasions, enshrines one of the
fundamental values of democratic society. The Convention prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances or the victim’s
behaviour (see Balogh v. Hungary, no. 47940/99,
§ 44, 20 July 2004, and Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV). The Court has
consistently stressed that the suffering and humiliation involved
must, for a violation to be found, go beyond that inevitable element
of suffering or humiliation connected with a given form of legitimate
treatment or punishment. Measures depriving a person of his liberty
may often involve such an element. In accordance with Article 3 of
the Convention, the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity
and that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention (see Kudła v. Poland
[GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).
The
Court observes that it found a violation of Article 3 in a case
where an applicant had been kept for twenty-two hours in an
administrative detention police cell without food or drink or
unrestricted access to a toilet (see Fedotov v. Russia,
no. 5140/02, § 68, 25 October 2005).
On
the facts, the Court observes that the parties’ accounts of the
conditions in which the applicant had been detained differed in some
details. However, there is no need for the Court to establish the
truthfulness of each and every allegation by the applicant because it
is able to find a violation of Article 3 on the basis of the facts
that have been submitted or are undisputed by the Government, for the
following reasons.
The
cell in which the applicant was held for four days had been designed
for short-term administrative detention not exceeding three hours.
Accordingly, not only was it tiny in surface area –
approximately three square metres according to the Government –
but also, by its design, it lacked the amenities indispensable for
prolonged detention. The cell did not have a toilet or a sink. It was
solely equipped with a bench, there being no chair or table or any
other furniture.
Furthermore,
the Court considers it unacceptable for a person to be detained in
conditions in which no provision has been made for meeting his or her
basic needs (see Riad and Idiab v. Belgium, nos. 29787/03
and 29810/03, § 106, ECHR 2008 ... (extracts)). Even
if it is to be accepted that police officers allowed the applicant’s
relatives to bring him food, their good will could obviously not be a
substitute for the lack of the most basic necessities during his
detention.
There
is no evidence in the present case of any positive intention to
humiliate or debase the applicant during the detention. Nevertheless,
the Court reiterates that the absence of any such intention cannot
preclude a finding of a violation of Article 3 of the Convention
(see Novoselov v. Russia, no. 66460/01, § 45,
2 June 2005, and Peers v. Greece, no. 28524/95, §§
70-72, ECHR 2001-III).
The
Court considers that the conditions of detention which the applicant
had to endure for four days must have caused him distress and
hardship and aroused in him feelings of anguish and inferiority
capable of humiliating and debasing him. There has accordingly been a
violation of Article 3 of the Convention on account of the
inhuman and degrading conditions of the applicant’s detention
at the police station from 3 to 7 March 2009.
(b) Conditions of the applicant’s
detention between 7 March and 14 August 2009 in remand
prison IZ-47/4 in St Petersburg
(i) Submissions by the parties
The
Government submitted that the conditions of the applicant’s
detention complied with the requirements of Article 3 of the
Convention. In particular, they stressed that in each of the
applicant’s cells the number of inmates did not exceed the
number of bunks and that throughout his detention the applicant had
been afforded sufficient personal space.
The
applicant alleged that the conditions of his detention in the remand
prison had been inadequate. He had been
detained there in extremely cramped and poor
conditions for more than five months. The applicant did not dispute
the number of bunks in the cells. He disagreed, however, with the
Government’s assertions as to the number of inmates.
(ii) The Court’s assessment
The parties have disputed the actual conditions of
the applicant’s detention in the remand prison, in particular
the amount of personal space afforded to him. According to the
applicant, in each cell where he had been detained his average amount
of personal space was 2.4 sq. m because the number of inmates
exceeded the number of bunks. The Government stated that the number
of inmates had not exceeded the number of bunks and that therefore
the average amount of personal space available to the applicant had
been at least 4 sq. m.
The
main characteristics not generally disputed by the parties are the
number of bunks and the size of the cells. However, the applicant
claimed that the cells’ population exceeded their capacity,
which was confirmed by witness statements by inmates detained with
him during the relevant period (see paragraph 44 above). The
Government indicated the exact number of inmates in the cells,
referring to the copy of the registration log (see paragraph 68
above); they did not provide other evidence to substantiate their
submission.
In
this connection, the Court observes that Convention proceedings, such
as the present application, do not in all cases lend themselves to a
rigorous application of the principle affirmanti incumbit probatio
(he who alleges something must prove that allegation) because in
certain instances the respondent Government alone have access to
information capable of corroborating or refuting allegations. A
failure on a Government’s part to submit such information
without a satisfactory explanation may give rise to the drawing of
inferences as to the well-foundedness of the applicant’s
allegations (see Ahmet Özkan and Others v. Turkey, no.
21689/93, § 426, 6 April 2004).
Having
regard to the abovementioned principles, together with the fact that
the Government failed to produce sufficiently detailed and clear
evidence confirming the actual number of inmates in each cell, the
Court will examine the issue concerning the number of inmates in the
cells on the basis of the applicant’s submissions.
The
Court reiterates that in many cases in which detained applicants had
at their disposal less than three square metres of personal space, it
has found that the lack of personal space afforded to them was so
extreme as to justify in itself a finding of a violation of Article 3
of the Convention (see, among many others, Andrey Frolov
v. Russia, no. 205/02, §§ 50-51, 29 March
2007; Lind v. Russia, no. 25664/05, §§ 61 63,
6 December 2007; Lyubimenko v. Russia, no. 6270/06,
§§ 58-59, 19 March 2009; and, more recently, Veliyev
v. Russia, no. 24202/05, §§ 129 130, 24 June
2010).
Having
regard to its case-law on the subject and the material submitted by
the parties, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case. Although there is no indication that
there was a positive intention to humiliate or debase the applicant,
the Court finds that the fact that he was obliged to live, sleep and
use the toilet in the same cell as so many other inmates for more
than five months was itself sufficient to cause feelings of
inferiority and frustration, which must have been exacerbated by the
fact that, as the Court will demonstrate below (see paragraph 160
below), his deprivation of liberty during that period lacked a lawful
basis (compare Shchebet v. Russia, no. 16074/07, § 95,
12 June 2008).
There
has accordingly been a violation of Article 3 of the Convention on
account of the inhuman and degrading conditions of the applicant’s
detention between 7 March and 14 August 2009 in
remand prison IZ-47/4 in St Petersburg.
III. ALLEGED VIOLATION OF ARTICLE 5 §
1 OF THE CONVENTION
The
applicant complained under Article 5 § 1 (f) of the Convention
that his detention pending extradition from 1 September 2008 to 2
February 2009 and again from 3 March to 14 August 2009 had been
unlawful. The relevant parts of Article 5 § 1 read as
follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
A. The parties’ submissions
The
Government stated that on 3 September 2008 the Smolninskiy
District Court had authorised the applicant’s detention and
that upon receipt of the extradition order, the same District Court
had on 17 October 2008 authorised his detention with a view to
extradition.
The
Government further submitted that the applicant’s detention
from 3 March to 14 August 2009 had been authorised twice: firstly, on
2 March 2009 by the Andijan Town Court (in
an order approved on 6 March 2009 by the Tsentralniy
district prosecutor’s office); and, secondly, on 4 March
2009 by the Dzerzhinskiy District Court.
The Government contended that
the applicant’s detention pending extradition complied
with the domestic legislation, in particular with the provisions of
Article 466 § 1 of the CCP. Referring to
Constitutional Court decisions no. 101-O of 4 April 2006 and
no. 333-O-P of 1 March 2007 and to Ruling no. 22 of 29
October 2009 of the Plenary Session of the Supreme Court of the
Russian Federation (see paragraphs 90-91 and 94-95 above), they
argued that the relevant provisions had been clear and foreseeable
and had enabled the applicant to estimate the length of his detention
pending extradition.
The
applicant disagreed with the Government. He submitted, inter alia,
that both of the court orders issued by the Smolninskiy District
Court (on 3 September 2008 and 17 October 2008) had been unlawful as
neither of them had set time-limits for his detention.
The
applicant further contended that his detention between 3 March
and 14 August 2009 had been unlawful as his detention from 6 March
to 14 August 2009 had been based only on the decision of the
prosecutor’s office and not on a Russian court order.
Finally,
the applicant submitted that the domestic
regulations concerning detention pending extradition were not
sufficiently clear and foreseeable.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
It
is common ground between the parties that the applicant was detained
as a person “against whom action is being taken with a view to
deportation or extradition” and that his detention fell under
Article 5 § 1 (f). The parties disputed,
however, whether the detention was “lawful” within the
meaning of Article 5 § 1 of the Convention.
(a) The applicant’s detention
between 1 September 2008 and 2 February 2009
The
Court observes that the applicant was arrested on 1 September
2008. His detention was initially authorised by the Smolninskiy
District Court on 3 September 2008 and subsequently by the same court
on 17 October 2008. Both decisions referred to Articles 108 and
466 of the CCP. Neither of the decisions set time-limits for the
applicant’s detention. On 2 February 2009 the Smolninskiy
District Court released the applicant, having established that his
detention from 1 September 2008 to 2 February 2009 was unlawful
and unsubstantiated. That decision was upheld on appeal by St
Petersburg City Court.
The Court sees no reason to hold otherwise. In view
of this, and having regard to its extensive case law on the
subject (see, amongst many other authorities, Nasrulloyev v.
Russia, no. 656/06, § 77, 11 October 2007;
Ismoilov and Others, cited above, § 139; and,
more recently, Khodzhayev v. Russia, no. 52466/08, § 141,
12 May 2010), the Court finds that this period of the applicant’s
detention pending extradition cannot be considered “lawful”
for the purposes of Article 5 § 1 of the Convention.
(b) The applicant’s detention
between 3 March and 14 August 2009
The Court notes that by the time of the applicant’s
placement in custody the Russian Constitutional Court had already
proclaimed that in extradition proceedings the right to liberty
should be attended by the same guarantees as in other types of
criminal proceedings. It unambiguously indicated that the application
of preventive measures with a view to extradition should be governed
not only by Article 466 but also by the norms on preventive measures
contained in Chapter 13 of the CCP (see paragraph 91 above).
In
such circumstances it appears to the Court that, in order to be
“lawful” within the meaning of Article 5 § 1 (f) of
the Convention, the applicant’s detention should have been
compatible not only with the requirements of Article 466 § 2 but
also with the provisions governing the application of a preventive
measure in the form of placement in custody, namely Articles 108
and 109, which are included in Chapter 13 of the CCP.
Article
108 § 4 of the CCP expressly provides that the issue of
placement in custody is to be decided upon by a judge of a district
or military court in the presence of the person concerned. It follows
from the wording of Article 5 § 48 and Article 31 § 2 of
the CCP that a district court is a court authorised to act on the
basis of the CCP, which implies that the term “district court”
refers to a court established and operating under Russian law.
Accordingly, a judge of a district court is an official authorised to
administer justice in the territory of the Russian Federation.
Nothing in the wording of Article 108 § 4 of the CCP suggests
that a foreign court may act as a substitute for a Russian district
court when deciding on a person’s placement in custody.
Be
as it may, the Court reiterates that it has already found the
application of the domestic legal rules of criminal procedure
concerning detention pending extradition to be inconsistent, mutually
exclusive and not circumscribed by adequate safeguards against
arbitrariness (see, amongst many other authorities, Nasrulloyev,
cited above, § 77; Ismoilov and Others, cited above,
§ 140; Ryabikin v. Russia, no. 8320/04, §§
127-130, 19 June 2008; Karimov, cited above, § 115;
and Sultanov v. Russia, no. 15303/09, § 86,
4 November 2010).
As
regards the application of domestic law in the present case, the
Court refers to the facts as set out in paragraphs 25-33 above which
show in all clarity the absence of a coherent procedure for ordering
and extending detention with a view to extradition and setting
time-limits for such detention. In particular, it appears that the
detention was based on an order of a foreign court and that no
time-limits were fixed. Thus, the deprivation of liberty to which the
applicant was subjected was not circumscribed by adequate safeguards
against arbitrariness. As applied, the national system failed to
protect the applicant from arbitrary detention, for which reason his
detention 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 on account of the applicant’s detention from 3 March
to 14 August 2009.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4
OF THE CONVENTION
Under
Article 5 § 4 of the Convention, the applicant alleged that
he had been unable to obtain effective judicial review of his
detention. In particular, he alleged that in
its decision of 18 March 2009 the Dzerzhinskiy District Court had
failed to examine properly the grounds for his repeated detention
with a view to extradition. Article 5 § 4 reads
as follows:
“Everyone
who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the
detention is not lawful.”
The
Government contended that the applicant’s complaint should be
rejected as unsubstantiated as he had been able to obtain a review of
his detention. In particular, they pointed out that in its decision
of 18 March 2009 the Dzerzhinskiy District
Court had examined the applicant’s complaint. In
addition, in their decisions of 2 February 2009 and 25 August
2009 the domestic courts had examined the applicant’s
complaints and acknowledged that his detention pending extradition
had been unlawful. The Government did not comment on the issue of the
speediness of the judicial review of the applicant’s
complaints.
The
applicant disagreed with the Government and submitted that the
Dzerzhinskiy District Court had failed to
examine his complaint that the grounds for his detention had been
unlawful. He pointed out that the Russian courts had failed to
undertake a speedy review of the lawfulness of his detention as his
complaint of 13 May 2009 had been examined after a significant delay.
The
Court notes that this complaint should be declared admissible.
However, having regard to its finding above it does not find it
necessary to examined it separately.
V. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF
THE CONVENTION
The
applicant complained under Article 6 § 2 that the news
broadcasts of 3 March 2009 had breached the presumption of his
innocence by presuming him guilty of crimes he had been charged with
by the Uzbek authorities. The relevant part of Article 6 of the
Convention reads as follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
A. The parties’ submissions
The
Government contended that the applicant’s presumption of
innocence had not been breached as the impugned press release issued
by the National Interpol Bureau in St Petersburg had contained
only references to the information received from the Uzbek
authorities and had not stated that the applicant was guilty of the
alleged crimes.
The
applicant reiterated the complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
The
Court reiterates that extradition proceedings fall within the scope
of Article 6 § 2 (see Ismoilov and Others, cited above, §
164), which, 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. 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 covers, amongst other things,
statements made by 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; Daktaras v. Lithuania, no. 42095/98,
§§ 41-43, ECHR 2000 X; and Butkevičius
v. Lithuania, no. 48297/99, § 49, ECHR
2002 II).
It
has been the Court’s constant approach that the presumption of
innocence will be violated if 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. It suffices, even in the absence of any formal finding, that
there is some reasoning suggesting that the official regards the
accused as guilty. 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
constantly emphasised the importance of the choice of words by public
officials in their statements before a person has been tried and
found guilty of a particular criminal offence (see Böhmer v.
Germany, no. 37568/97, §§ 54 and 56, 3
October 2002, Nešťák v. Slovakia,
no. 65559/01, §§ 88 89, 27 February
2007 and Konstas v. Greece, no. 53466/07, § 45, 24
May 2011).
Turning
to the facts of the present case, the Court observes that a State
television channel twice broadcast a news report quoting the press
unit of the Main Department of the Interior of St Petersburg and the
Leningrad Region, displaying full-face and profile photographs of the
applicant and describing him as “... a terrorist from
Uzbekistan ... the leading member of the Wahhabi extremist religious
movement ... who has been on the authorities’ wanted list for
two years ...”. This description of the applicant was followed
by a statement from the deputy head of the National Interpol Bureau
in St Petersburg and the Leningrad Region, in which the official
stated in affirmative terms that the applicant “... having
studied the ideas of the political extremist movement ... had created
the ‘Khalka’ group to spread the ideas of the Wahhabi
movement in order to change the existing State order in Uzbekistan,
seize power and remove lawfully elected officials ...”.
This statement was not limited to describing the status of the
applicant’s pending extradition but presented it as an
established fact, without any qualification or reservation, that he
had organised the criminal group and committed the offences.
The
Court considers that this statement by the public official amounted
to a declaration of the applicant’s guilt and prejudged the
assessment of the facts by the competent judicial authority. Given
that the deputy head of the National Interpol Bureau represented the
law enforcement authorities when interviewed, he should have
exercised particular caution in his choice of words when describing
the criminal proceedings pending against the applicant (see, mutatis
mutandis, Khuzhin and Others v. Russia, no. 13470/02, §§
95-96, 23 October 2008, and Mokhov v. Russia, no. 28245/04, §§
31-32, 4 March 2010). Therefore, the Court considers that the
official’s statement must have encouraged the public to believe
the applicant to be a criminal before he had been proved guilty
according to law. Accordingly, the Court finds that there was a
breach of the presumption of the applicant’s innocence.
There
has therefore been a violation of Article 6 § 2 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
175. The
applicant did not submit any claims for pecuniary damage. As regards
non-pecuniary damage, he submitted that he had endured stress,
frustration and anguish as a result of the high risk of being
subjected to torture if extradited to Uzbekistan and of the eleven
months of his unlawful detention pending extradition in
inadequate conditions. He left the determination of the amount of
compensation to the Court.
The
Government submitted that the applicant was not entitled to any
compensation for non-pecuniary damage.
The
Court, making an assessment on an equitable basis, awards 15,000
euros (EUR) to the applicant in respect of non-pecuniary damage, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
Relying
on fee agreements and lawyers’ time sheets, the applicant
claimed EUR 2,650 for the work of his St Petersburg-based
lawyer, Ms O. Tseytlina, and EUR 1,000 for the work of his
lawyer from the EHRAC/Memorial Human Rights Centre, Mr K.
Koroteev. The applicant claimed a total of EUR 3,650 for the
work done by lawyers in connection with his representation before the
Court. He further claimed 3,944 pounds sterling (GBP) (approximately
EUR 4,537) for translation costs and administrative expenses.
The
Government contended that the applicant had not submitted any proof
that the payments had actually been made and that the amounts were
reasonable.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,500 covering costs
under all heads, plus any tax that may be chargeable to the applicant
on that amount.
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 applicant’s complaints under
Article 3 of the Convention concerning his extradition to Uzbekistan
and the conditions of his detention in the 78th office of the
St Petersburg department of the interior and in remand prison
IZ-47/4 in St Petersburg, and his complaints under
Article 5 §§ 1 and 4, and Article 6 § 2
of the Convention, admissible and the remainder of the application
inadmissible;
Holds that in the event of the extradition order
against the applicant being enforced, there would be a violation of
Article 3 of the Convention;
Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is
desirable in the interests of the proper conduct of the proceedings
not to extradite the applicant until such time as the present
judgment becomes final;
Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of the
applicant’s detention;
Holds that there has been a violation of
Article 5 § 1 of the Convention in respect of the
applicant’s detention pending extradition;
Holds that it is not necessary to examine
separately the applicant’s complaint under Article 5 § 4
of the Convention;
Holds that there has been a violation of
Article 6 § 2 of the Convention;
Holds
(a) that
the respondent State is to pay, within three months of the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles on the date of settlement, save in the case of the
payment in respect of costs and expenses:
(i) EUR 15,000
(fifteen thousand euros) to the applicant, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,500
(five thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
paid into his representatives’ bank account in the United
Kingdom;
(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 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
