European Court of Human Rights

THIRD SECTION

CASE OF BUTORIN v. RUSSIA

(Application no. 46637/09)

JUDGMENT

STRASBOURG

6 February 2018

This judgment is final but it may be subject to editorial revision.

In the case of Butorin v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 16 January 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46637/09) 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 Igor Aleksandrovich Butorin ("the applicant"), on 28 August 2009.

2. The applicant was represented by Mr I.L. Fedotov and Mrs L.V. Stakhiyeva, lawyers practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 6 April 2011 the applicant's complaints were communicated to the Government.

THE FACTS

4. The applicant was born in 1970 and lives in Belebey, Republic of Bashkortostan.

5. In October 2007 the applicant and his family moved from Uzbekistan to Russia, apparently for the purpose of obtaining Russian nationality as well as seeking medical treatment for the applicant's drug addiction.

6. In December 2007 the Uzbek authorities charged the applicant with large-scale drug-trafficking committed in October 2007 and issued a detention order and an international search warrant.

7. On 12 July 2008 the applicant was arrested in Moscow and on 14 July 2008 the Dragomilovskiy District Court of Moscow ordered the applicant's detention pending extradition, without setting any time-limit.

8. On 9 December 2008 the Russian Prosecutor General's Office ordered the applicant's extradition.

9. On 28 January 2009 the Moscow City Court confirmed the lawfulness of the applicant's arrest and detention, and upheld the extradition.

10. In the meantime, on 4 March 2009 the Supreme Court of Russia upheld the judgment of 28 January 2009.

11. On 10 August 2009 the applicant issued an authority form to lawyers to lodge an application with the Court on his behalf.

12. On 21 August 2009 the extradition order was enforced and the applicant was transferred to Uzbekistan.

13. On 28 August 2009 the applicant's lawyers - who were apparently unaware of the extradition − requested an interim measure under Rule 39 of the Rules of Court in order to stay the removal. On 1 September 2009 the Court indicated the relevant measure to the Russian Government.

14. However, after the Russian Government had informed the Court about the extradition on 21 August 2009, the interim measure was lifted on 7 October 2009.

15. The parties submitted no information on related events in Uzbekistan.

16. On an unspecified date the applicant joined his family in Russia.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

17. The applicant complained under Article 5 § 1 (f) of the Convention that his detention pending extradition had been unlawful and that the extradition proceedings had not been conducted with due diligence and, under Article 5 § 4 of the Convention, that his detention pending extradition had not been subject to judicial review.

"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...

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."

18. The Government contested that argument.

19. The Court notes that the factual setting and the legal issues raised by the applicant, insofar as they relate to the applicable domestic law and practice pertaining in 2009, are substantively similar to those previously examined in the cases Muminov v. Russia (no. 42502/06, 11 December 2008) and Nasrulloyev v. Russia (no. 656/06, 11 October 2007).

20. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Taking into account its case-law on the subject, the Court considers that the applicant's detention pending extradition was unlawful since the Russian law in force at the material time was neither precise nor foreseeable in its application and fell short of the "quality-of-law" standard required under the Convention, and also considering that the applicant did not have at his disposal any procedure for a judicial review of its lawfulness.

21. These complaints are therefore admissible and disclose violations of Article 5 §§ 1 and 4 of the Convention.

22. In the light of the above violations of Article 5 §§ 1 and 4 of the Convention, the Court does not find it necessary to deal separately with other complaints raised by the applicant under the same provisions.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

23. The applicant also complained under Articles 3, 6 and 13 of the Convention about the risk of ill-treatment in Uzbekistan and various aspects of the extradition proceedings. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. 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

25. The applicant claimed 100,000 euros (EUR) in respect of non-‘pecuniary damage.

26. The Government considered that claim to be excessive.

27. Taking into account the circumstances of the case, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

28. The applicant also claimed 3,000 Russian roubles (RUB) (EUR 65) for the costs and expenses incurred before the Court.

29. The Government did not comment in this regard.

30. Having given consideration to the documents in its possession and to its case-law, the Court finds it reasonable to award the sum of EUR 65 covering costs for the proceedings before the Court.

C. Default interest

31. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaints under Articles 5 §§ 1 and 4 concerning the lawfulness of detention pending extradition and the availability of judicial review of continuing detention admissible and the remainder of the application inadmissible;

2. Holds that there have been violations of Article 5 §§ 1 and 4 of the Convention;

3. Holds that it is not necessary to examine separately other complaints under Article 5 §§ 1 and 4 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 65 (sixty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 6 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıLuis López Guerra
Deputy RegistrarPresident