BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ELMURATOV v. RUSSIA
(Application
no. 66317/09)
JUDGMENT
STRASBOURG
3 March
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 Elmuratov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Christos Rozakis,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 10 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 66317/09) 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 Uzbekistani national, Mr Ziyadullo
Khuzhayarovich Elmuratov (“the applicant”), on 17
December 2009.
- The applicant was represented by the lawyers of the
NGO EHRAC/Memorial Human Rights Centre. The Russian Government
(“the Government”) were represented by Mr
G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On 18 December 2009 the President of the First Section
decided to apply Rules 39 and 41 of the Rules of Court, indicating to
the Government that the applicant should not be extradited to
Uzbekistan until further notice and granting priority treatment to
the application.
- On
15 January 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 1966 and lives in St Petersburg.
A. Background events
- On several occasions (in 1988, 1992, 1994 and 1999) the
applicant was convicted in Uzbekistan of disorderly conduct and
attempted escape. In the applicant’s submission, in 1988, 1992,
1994, 1998, 1999, 2003 and 2004, while in the hands of Uzbek
officials, he was subjected to ill treatment.
- On 7 June 2004, in Uzbekistan, the applicant inflicted
numerous cuts on himself and was placed in a hospital. He was
discharged from the hospital on 16 June 2004.
- In
February 2008 the applicant arrived in Russia to look for work. He
was registered as a migrant in St Petersburg.
- On 28 March 2008 the Kumkurgan District Court of
Uzbekistan ordered the applicant’s placement in custody under
suspicion of having committed aggravated theft of cattle.
- On
10 April 2008 an Uzbek investigator placed the applicant’s name
on a wanted list.
B. Extradition proceedings
- On 27 April 2009 the applicant was arrested by Russian
police at his place of residence in St Petersburg.
- On
25 May 2009 the Uzbek Prosecutor General’s Office requested the
applicant’s extradition. On 4 June 2009 the request was
received by the Russian Prosecutor General’s Office.
- On
28 September 2009 the Russian Prosecutor General’s Office
decided to extradite the applicant to Uzbekistan.
- On 12 October 2009 the applicant’s counsel
lodged an appeal against the extradition order, arguing the
following: proceedings concerning the applicant’s request for
temporary asylum were still pending (see paragraphs 18 21
below); the applicant’s extradition would entail a breach of
Article 3 of the Convention because the Court had already found
violations in the cases of Ismoilov and Others v. Russia and
Muminov v. Russia involving extradition to Uzbekistan;
according to independent international observers ill-treatment was
widespread in the Uzbek prison system and fair trial guarantees were
not respected. No reference was made to the applicant’s alleged
previous experience while in detention in Uzbekistan.
- On
10 November 2009 the St Petersburg City Court dismissed the
applicant’s appeal against the extradition order. It reasoned,
in particular, that the applicant’s references to possible
ill-treatment in Uzbekistan had been unsubstantiated and that the
applicant had not argued that he might be persecuted on racial,
religious, social or political grounds.
- The applicant appealed against the decision of 10
November 2009, arguing that his submission that he would face
ill-treatment in Uzbekistan had not been examined by the court. Again
no reference was made to the applicant’s alleged previous
experience while in detention in Uzbekistan.
- On
24 December 2009 the Supreme Court of Russia upheld the decision of
10 November 2009. It reasoned as follows: the applicant had absconded
from the Uzbek authorities; the decision to arrest the applicant had
been taken by a competent Uzbek court; the applicant was not a
Russian national; the Uzbek Prosecutor General’s Office had
guaranteed that the applicant would not be extradited to a third
State or punished for another crime, and that he would be free to
leave Uzbekistan when he had served his sentence; there were no
reasons to reject the extradition request; the applicant’s
allegations that torture of detainees was a widespread practice in
Uzbekistan had not been substantiated; the applicant had not proved
that he might be persecuted on the grounds of race, religion,
membership of a social group, political convictions or anything else.
C. Asylum proceedings
- In July and September 2009 the applicant applied for
asylum to the Federal Migration Service of St Petersburg Region (“the
FMS”). In his application, dated 23 September 2009, he claimed
that all detainees in Uzbekistan were kept in poor conditions. On 15
October 2009 he was interviewed by FMS officials.
- On
21 October 2009 the FMS dismissed the applicant’s request; he
was notified of the decision on 23 October 2009.
- The
applicant then applied for temporary asylum. On 24 December 2009
the FMS dismissed his request.
- On 10 February 2010 the applicant appealed against the
FMS decision, arguing for the first time before the Russian
authorities that he had been ill-treated in Uzbek prisons while
serving his previous sentences.
D. The applicant’s detention
- Following the applicant’s arrest on 27 April
2009 (see paragraph 11 above), on 28 April 2009 the prosecutor’s
office of the Krasnogvardeyskiy District of St Petersburg (“the
district prosecutor’s office”), relying on Article 61 of
the Minsk Convention, ordered the applicant’s placement in
custody pending extradition on the basis of the decision of 28 March
2008 by the Kumkurgan District Court of Uzbekistan (see paragraph 9
above).
- On 16 June 2009 the district prosecutor’s
office, referring to Article 466 § 2 of the CCP, issued a
new decision authorising the applicant’s placement in custody
pending extradition on the basis of the Uzbek court decision of 28
March 2008.
- On
28 June 2009 the applicant complained to a court, referring to
Decision no. 333-O-P of 1 March 2007 of the Constitutional Court and
the Court’s case-law, that he had been unlawfully detained for
more than two months and that the term of his detention had not been
extended.
- On 24 August 2009 the Krasnogvardeyskiy District Court
of St Petersburg (“the district court”) examined the
complaint about unlawfulness of detention. It reasoned that, pursuant
to Article 466 § 2 of the CCP, a prosecutor could place a person
in custody where a foreign court’s arrest warrant and a request
for extradition existed. However, in the applicant’s case, the
district prosecutor’s office had applied the preventive measure
before the extradition request had been sent and thus had breached
Article 466 § 2 of the CCP. At the same time, the second
district prosecutor’s office’s decision to remand the
applicant in custody had been taken after the extradition request had
been received. The district court concluded that the district
prosecutor’s office’s decision of 28 April 2009 was
unlawful. Nonetheless, it refused to release the applicant, arguing
that the decision of 16 June 2009 was compatible with domestic law
and thus served as a legitimate ground for the applicant’s
detention. It also noted that “[t]he provisions of the CCP do
not establish terms for deciding on extradition issues and procedure
for extension of the term of detention of persons in respect of which
an extradition request has been received from a foreign State”.
- Both
the applicant and the district prosecutor’s office appealed
against the decision of 24 August 2009.
- On 19 October 2009 the St Petersburg City Court
quashed the decision of 24 August 2009 for procedural defects and
remitted the case for a fresh examination at the first level of
jurisdiction. It also stated that the preventive measure applied to
the applicant should remain unvaried, without citing any legal
grounds for his detention or specifying its term.
- On 10 November 2009 the St Petersburg City Court,
while upholding the extradition order, extended the applicant’s
detention for three months, that is until 9 February 2010.
- On 8 December 2009 the district court discontinued the
proceedings concerning the applicant’s complaint that his
detention was unlawful, for the reason that the St Petersburg City
Court had extended the term of detention until 9 February 2010.
- On
24 December 2009 the Supreme Court of Russia, while dismissing the
applicant’s appeal against the extradition request, touched
upon the issue of lawfulness of the applicant’s detention in
one sentence: “There are no reasons to doubt the lawfulness of
Mr Elmuratov’s custodial detention pending his extradition”.
- On
29 January 2010 the district prosecutor’s office requested a
court to extend the term of the applicant’s detention for two
months.
- On
8 February 2010 the district court granted the prosecutor’s
request in part. It reasoned that the applicant had been charged with
very serious crimes, such as theft of cattle, and that Rule 39 of the
Rules of Court had been applied in his case and concluded that there
were no grounds for varying the preventive measure. The term of the
applicant’s detention was extended until 9 April 2010.
- On
27 February 2010 the St Petersburg City Court dismissed the
applicant’s appeal against the decision of 8 December 2009, for
the reason that the Supreme Court of Russia had ruled on 24 December
2009 that his detention pending extradition was lawful.
- On
18 March 2010 the St Petersburg City Court dismissed the applicant’s
appeal against the decision of 8 February 2010.
- On
6 April 2010 the district court extended the term of the applicant’s
detention until 27 April 2010, for the reason that he had been
charged with serious crimes, did not have a permanent place of
residence and thus could abscond or continue his criminal activities.
- On
27 April 2010 the district prosecutor’s office ordered the
applicant’s release from custody, for the reason that the
maximum period of his detention had expired.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation of 1993
-
Everyone has a right to liberty and security (Article 22 § 1).
Arrest, placement in custody and custodial detention are permissible
only on the basis of a court order. The term during which a person
may be detained prior to obtaining such an order must not exceed
forty-eight hours (Article 22 § 2).
B. Code of Criminal Procedure
- The term “court” is defined by the Code of
Criminal Procedure (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 governs the application of
preventive measures. Placement in custody is a preventive measure
applied on the basis of a court decision to a person suspected of or
charged with a crime punishable with at least two years’
imprisonment where it is impossible to apply a more lenient
preventive measure (Article 108 § 1). A request for placement in
custody should be 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 must not 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 has been charged with serious or
particularly serious criminal offences (Article 109 § 3).
- Chapter 16 of the CCP lays down the procedure by which
acts or decisions of a court or public official involved in criminal
proceedings may be challenged. Acts or omissions of a police officer
in charge of the inquiry, an investigator, a prosecutor or a court
may be challenged by “parties to criminal proceedings” or
by “other persons in so far as the acts and decisions [in
question] touch upon those persons’ interests” (Article
123). Those acts or omissions may be challenged before a prosecutor
(Article 124). Decisions taken by police or prosecution
investigators or prosecutors not to initiate criminal proceedings, or
to discontinue them, or any other decision or inaction capable of
impinging upon the rights of “parties to criminal proceedings”
or of “hindering an individual’s access to court”
may be subject to judicial review (Article 125).
- Upon
receipt of a request for extradition not accompanied by an arrest
warrant issued by a foreign court, the Prosecutor General or his
deputy is to decide on the preventive measure in respect of the
person whose extradition is sought. The preventive measure is to be
applied in accordance with the established procedure (Article 466 §
1).
- 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).
- Extradition
may be denied if the act that gave grounds for the extradition
request does not constitute a crime under the Russian Criminal Code
(Article 464 § 2 (1)).
C. Decisions of the Russian Constitutional Court
1. Decision of 17 February 1998
- Verifying
the compatibility of Article 31 § 2 of the Law on Legal Status
of Foreign Nationals in the USSR of 1982,
the Constitutional Court ruled that a foreign national liable to be
expelled from the Russian territory could not be detained for more
than forty-eight hours without a court order.
2. Decision no. 101-O of 4 April 2006
- Assessing the compatibility of Article 466 § 1 of
the CCP with the Russian Constitution, the Constitutional Court
reiterated its settled case-law to the effect that excessive or
arbitrary detention, unlimited in time and without appropriate
review, was incompatible with Article 22 of the Constitution and
Article 14 § 3 of the International Covenant on Civil and
Political Rights in all cases, including extradition proceedings.
- In
the Constitutional Court’s view, the absence of specific
regulation of detention matters in Article 466 § 1 did not
create a legal lacuna incompatible with the Constitution. Article 8 §
1 of the 1993 Minsk Convention provided that, in executing a request
for legal assistance, the requested party would apply its domestic
law, that is the procedure laid down in the CCP. That procedure
comprised, in particular, Article 466 § 1 of the Code and the
norms in its Chapter 13 (“Preventive measures”), which,
by virtue of their general character and position in Part I of the
Code (“General provisions”), applied to all stages and
forms of criminal proceedings, including proceedings for the
examination of extradition requests.
- The
Constitutional Court emphasised that the guarantees of the right to
liberty and personal integrity set out in Article 22 and Chapter 2 of
the Constitution were fully applicable to detention with a view to
extradition. Accordingly, Article 466 of the CCP did not allow the
authorities to apply a custodial measure without complying with the
procedure established in the CCP or in excess of the time-limits
fixed in the Code.
3. Decision no. 158-O of 11 July 2006 on the Prosecutor
General’s request for clarification
- The
Prosecutor General asked the Constitutional Court for an official
clarification of its decision no. 101-O of 4 April 2006 (see above),
for the purpose, in particular, of elucidating the procedure for
extending a person’s detention with a view to extradition.
- The
Constitutional Court dismissed the request on the ground that it was
not competent to indicate specific provisions of the criminal law
governing the procedure and time-limits for holding a person in
custody with a view to extradition. That matter was within the
competence of the courts of general jurisdiction.
4. Decision no. 333-O-P of 1 March 2007
- The Constitutional Court reiterated its settled
case-law to the effect that the scope of the constitutional right to
liberty and personal inviolability was the same for foreign nationals
and stateless persons as for Russian nationals. A foreign national or
stateless person may not be detained in Russia for more than
forty-eight hours without a judicial decision. That constitutional
requirement served as a guarantee against excessively long detention
beyond forty-eight hours, and also against arbitrary detention as
such, in that it required a court to examine whether the arrest was
lawful and justified.
- The Constitutional Court held that Article 466 §
1 of the Code of Criminal Procedure, read in conjunction with the
Minsk Convention, could not be construed as permitting the detention
of an individual for more than forty-eight hours on the basis of a
request for his or her extradition without a decision by a Russian
court. A custodial measure could be applied only in accordance with
the procedure established in the Russian Code of Criminal Procedure
and within the time-limits fixed in the Code.
5. Decision no. 383-O-O of 19 March 2009
- The
Constitutional Court dismissed as inadmissible a request for a review
of the constitutionality of Article 466 § 2 of the CCP, stating
that this provision “does not establish time-limits for
custodial detention and does not establish the reasons and procedure
for choosing a preventive measure, it merely confirms a prosecutor’s
power to execute a decision already delivered by a competent judicial
body of a foreign state to detain an accused. Therefore the disputed
norm cannot be considered to violate constitutional rights of [the
claimant] ...”
D. Decisions of the Russian Supreme Court
1. Directive Decision no. 1 of 10 February 2009
- By a Directive Decision No.1 adopted by the Plenary
Session of the Supreme Court of the Russian Federation on 10 February
2009, (“Directive Decision of 10 February 2009”) the
Plenary Session issued several instructions to the courts on the
application of Article 125 of the CCP. The Plenary reiterated that
any party to criminal proceedings or other person whose rights and
freedoms were affected by actions or the inaction of the
investigating or prosecuting authorities in criminal proceedings
could invoke Article 125 of the CCP to challenge a refusal to
institute criminal proceedings or a decision to terminate them. The
Plenary stated that whilst the bulk of decisions amenable to judicial
review under Article 125 also included decisions to institute
criminal proceedings, refusals to admit defence counsel or to grant
victim status, a person could not rely on Article 125 to
challenge a court’s decision to apply bail or house arrest or
to remand a person in custody. It was further stressed that in
declaring a specific action or inaction on the part of a
law-enforcement authority unlawful or unjustified, a judge was not
entitled to quash the impugned decision or to oblige the official
responsible to quash it, but could only request him or her to rectify
the shortcomings indicated. Should the impugned authority fail to
comply with the court’s instructions, an interested party could
complain to a court about the authority’s inaction and the
latter body could issue a special decision [частное
определение],
drawing the authority’s attention to the situation. Lastly, the
decision stated that a prosecutor’s decision to place a person
under house arrest or to remand him or her in custody with a view to
extradition could be appealed against to a court under Article 125 of
the CCP.
2. Directive Decision No. 22 of 29 October 2009
- In a Directive Decision No. 22, adopted by the Plenary
Session of the Supreme Court of the Russian Federation on 29 October
2009 (“Directive Decision of 29 October 2009”), it was
stated that, pursuant to Article 466 § 1 of the CCP, only a
court could order the placement in custody of a person in respect of
whom an extradition check was pending and where the authorities of
the country requesting extradition had not submitted a court decision
remanding him or her in custody. The judicial authorisation of
placement in custody in that situation was to be carried out in
accordance with Article 108 of the CCP and following a prosecutor’s
request for that person to be placed in custody. In deciding to
remand a person in custody a court was to examine if there were
factual and legal grounds for the application of that preventive
measure. If the extradition request was accompanied by a detention
order of a foreign court, a prosecutor was entitled to remand the
person in custody without a Russian court’s authorisation
(Article 466 § 2 of the CCP) for a period not exceeding two
months, and the prosecutor’s decision could be challenged in
the courts under Article 125 of the CCP. In extending a person’s
detention with a view to extradition a court was to apply Article 109
of the CCP.
III. INTERNATIONAL INSTRUMENTS AND OTHER DOCUMENTS
A. The 1993 CIS Convention on Legal Assistance and
Legal Relations in Civil, Family and Criminal Matters (the Minsk
Convention)
- When carrying out actions requested under the Minsk
Convention, to which Russia and Uzbekistan are parties, an official
body applies its country’s domestic laws (Article 8 § 1).
- Upon
receipt of a request for extradition, the requested country should
immediately take measures to search for and arrest the person whose
extradition is sought, except in cases where no extradition is
possible (Article 60).
- The
person whose extradition is sought may be arrested before receipt of
a request for extradition if there is a related petition. The
petition must contain a reference to a detention order and
indicate that a request for extradition will follow (Article 61 §
1). If the person is arrested or placed in detention before receipt
of the extradition request, the requesting country must be
informed immediately (Article 61 § 3).
- A person detained pending extradition pursuant to
Article 61 § 1 of the Minsk Convention must be released if the
requesting country fails to submit an official request for
extradition with all requisite supporting documents within forty days
of the date of placement in custody (Article 62 § 1).
B. Reports on general human-rights situation in
Uzbekistan
- The UN Special Rapporteur on Torture stated to the 2nd
Session of the UN Human Rights Council on 20 September 2006 the
following:
“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.”
- In
November 2007 Human Rights Watch issued a report entitled “Nowhere
to Turn: Torture and Ill-Treatment in Uzbekistan”, which
provides the following analysis:
“Prolonged beatings are one of the
most common methods used by the police and security agents to
frighten detainees, break their will, and compel them to provide a
confession or testimony. They often start beating and kicking
detainees with their hands, fists, and feet and then continue using
truncheons, filled water bottles and various other tools ...
Several individuals reported that they
were either tortured with electric shocks or forced by police to
watch as others were tortured with it ...
Police and security officers sometimes
use gas masks or plastic bags to effect near asphyxiation of
detainees. After forcing an old-fashioned gas mask over the head of
the victim, who in some cases is handcuffed to a chair, the oxygen
supply is cut ...”
- The
UN Special Rapporteur on Torture stated to the 3rd Session of the UN
Human Rights Council on 18 September 2008 the following:
“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 ...”
63. 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
- The
applicant complained that if extradited he would be ill-treated in
Uzbekistan in breach of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Arguments by the parties
1. The Government
- The
Government claimed at the outset that the applicant could not claim
to be a victim of the alleged violation of Article 3 of the
Convention. In their view, the fact that the Court had indicated
under Rule 39 of the Rules of Court that “the applicant should
not be extradited to Uzbekistan until further notice” meant
that the applicant ran no proximate or imminent risk of being removed
from the country.
- The
Government further asserted that the Uzbek Prosecutor General’s
Office had given diplomatic assurances that the applicant would be
prosecuted only for the crime for which he would be extradited, that
he would be able to freely leave Uzbekistan when he had stood trial
and served his sentence, and that he would not be expelled or
extradited to a third State without the consent of the Russian
authorities.
- The
applicant was not facing any risks of being sentenced to capital
punishment. Uzbekistan ratified the UN Convention Against Torture
1984. The Federal Security Service of Russia had concluded that it
had no information which would confirm that the applicant had been
persecuted in Uzbekistan on political grounds. The Russian courts had
concluded that there had been no reason to believe that the applicant
had been persecuted on political grounds, and had thus examined in
detail the applicant’s allegations of possible ill-treatment.
2. The applicant
- The
applicant claimed that he could not be regarded to have lost victim
status as regards his complaint under Article 3 of the Convention as
his extradition had not been cancelled but simply postponed pending
examination of his application by the Court.
- The
applicant further submitted that the Russian authorities had failed
to properly examine his submission that he risked ill-treatment in
Uzbekistan. Referring to a number of international reports on the
general human rights situation in the requesting country, he asserted
that detainees in Uzbek prisons were regularly beaten.
- The applicant also emphasised that he had sustained
injuries while in the hands of the Uzbek authorities. In support of
his claims he referred to the fact that he had been admitted to
hospital on 7 June 2004, substantiating this by an extract dated 12
September 2009 from the medical record.
- The applicant enclosed a medical examination report
drawn up on 8 June 2010 with his observations on the
admissibility and merits of the case of 24 June 2010. The report
stated that when examined by an expert the applicant had claimed that
numerous scars on his head, neck, upper body, arms and hands were the
result of ill-treatment exercised by Uzbek prison officers in
December 1998 and in 2001 and by Uzbek police officers in 2004. He
had also submitted that in 2005 while in detention he had inflicted
injuries on himself. The medical expert had concluded that the
applicant had numerous scars which were the result of injuries
sustained at least eighteen months before the examination; the expert
had stated that it was impossible to establish the date the injuries
had been incurred more precisely.
B. The Court’s assessment
1. Admissibility
- As
to the Government’s claim that the applicant was not a victim
of the alleged violation, the Court notes the exceptional nature of
the application of the “victim” notion in Article 3 cases
involving extradition, namely, “by reason of foreseeable
consequences” (see Soering v. the United Kingdom, 7 July
1989, § 90 Series A no. 161). The Court further notes that the
decision of the Prosecutor General’s Office of 16 December 2008
to extradite the applicant was upheld on appeal by the Supreme Court
and remains in force. The Court accordingly dismisses this objection
(see Galeyev v. Russia, no. 19316/09, § 51-52, 3 June
2010).
- The
Court further notes that the complaint under Article 3 of the
Convention is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It considers that it is
not inadmissible on any other grounds and must therefore be declared
admissible.
2. Merits
(a) General principles
- Turning
to the thrust of the applicant’s complaint, namely to his
submission that he risked ill-treatment in Uzbekistan, the Court
reiterates the following principles established in its constant
case-law.
- In
order to fall within the scope of Article 3 ill-treatment must attain
a minimum level of severity. The assessment of this minimum is, in
the nature of things, relative; it depends on all the circumstances
of the case, such as the nature and context of the treatment or
punishment, the manner and method of its execution, its duration, its
physical or mental effects and, in some instances, the sex, age and
state of health of the victim (see T. v. the United
Kingdom [GC], no. 24724/94, § 68, 16 December 1999).
Allegations of ill-treatment must be supported by appropriate
evidence. To assess this evidence, the Court adopts the standard of
proof “beyond reasonable doubt” but adds that such proof
may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Jalloh v. Germany [GC], no. 54810/00, § 67,
ECHR 2006 IX).
- The
Court further reiterates that extradition by a Contracting State may
give rise to an issue under Article 3, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person in question
would, if extradited, face a real risk of being subjected to
treatment contrary to Article 3 of the Convention in the
receiving country. The establishment of that responsibility
inevitably involves an assessment of conditions in the requesting
country against the standards of Article 3 of the Convention.
Nonetheless, there is no question of adjudicating on or establishing
the responsibility of the receiving country, whether under general
international law, under the Convention or otherwise (see Soering
v. the United Kingdom, 7 July 1989, § 91, Series A
no. 161).
- In
determining whether it has been shown that the applicant runs a real
risk, if extradited, of suffering treatment proscribed by Article 3,
the Court will assess the issue in the light of all the material
placed before it or, if necessary, material obtained proprio motu
(see H.L.R. v. France, 29 April 1997, § 37, Reports
of Judgments and Decisions 1997-III). Since the nature of the
Contracting States’ responsibility under Article 3 in cases of
this kind lies in the act of exposing an individual to the risk of
ill-treatment, the existence of the risk must be assessed primarily
with reference to those facts which were known or ought to have been
known to the Contracting State at the time of the extradition (see
Cruz Varas and Others v. Sweden, 20 March 1991, §§
75-76, Series A no. 201, and Vilvarajah and Others v. the United
Kingdom, 30 October 1991, § 107, Series A no. 215). However,
if the applicant has not been extradited or deported when the Court
examines the case, the relevant time will be that of the proceedings
before the Court (see Chahal v. the United Kingdom, 15
November 1996, §§ 85 86, Reports 1996-V).
- In
order to determine whether there is a risk of ill-treatment, the
Court must examine the foreseeable consequences of sending the
applicant to the receiving country, bearing in mind the general
situation there and his personal circumstances (see Vilvarajah and
Others, cited above, § 108 in fine). It is in
principle for the applicant to adduce evidence capable of proving
that there are substantial grounds for believing that, if the measure
complained of were to be implemented, he would be exposed to a real
risk of being subjected to treatment contrary to Article 3 (see N.
v. Finland, no. 38885/02, § 167, 26 July 2005). Where
such evidence is adduced, it is for the Government to dispel any
doubts about it (see Ryabikin v. Russia, no. 8320/04, §
112, 19 June 2008).
- As
regards the general situation in a particular country, the Court
considers that it can attach certain importance to the information
contained in recent reports from independent international human
rights protection organisations such as Amnesty International, or
governmental sources (see, for example, Chahal, cited
above, §§ 99-100; Müslim v. Turkey,
no. 53566/99, § 67, 26 April 2005; Said v. the
Netherlands, no. 2345/02, § 54, ECHR 2005-VI; and
Al Moayad v. Germany (dec.), no. 35865/03, §§ 65-66,
20 February 2007).
- At
the same time, the mere possibility of ill-treatment on account of an
unsettled situation in the receiving country does not in itself give
rise to a breach of Article 3 (see Vilvarajah and Others,
cited above, § 111, and Katani and Others v. Germany
(dec.), no. 67679/01, 31 May 2001). Where the sources available to
the Court describe a general situation, an applicant’s specific
allegations in a particular case require corroboration by other
evidence (see Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, § 73, ECHR 2005 I).
(b) Application of the above principles to
the present case
- In
line with the case-law cited above, it is necessary to examine
whether the foreseeable consequences of the applicant’s
extradition to Uzbekistan are such as to bring Article 3 of the
Convention into play. Since he has not yet been extradited, owing to
the indication by the Court of an interim measure under Rule 39 of
the Rules of Court, the material date for the assessment of that risk
is that of the Court’s consideration of the case.
- The Court does not lose sight of the disquieting
reports on human rights situation in Uzbekistan (see paragraphs 60-63
above), which, admittedly, is far from being perfect. Nonetheless, it
emphasises that reference to a general problem concerning human
rights observance in a particular country cannot alone serve as a
basis for refusal of extradition (see Kamyshev v. Ukraine, no.
3990/06, § 44, 20 May 2010).
- The Court is mindful of the fact that it has on
several occasions found violations of Article 3 of the Convention in
cases involving extradition to Uzbekistan. However, the applicants in
those cases had been charged with political crimes (see Ismoilov
and Others v. Russia, no. 2947/06, § 122, 24 April
2008; Muminov v. Russia, no. 42502/06, § 94, 11 December
2008; and Yuldashev v. Russia, no. 1248/09, § 84, 8 July
2010) and thus were members of a group systematically exposed to a
practice of ill-treatment (see Saadi v. Italy [GC], no.
37201/06, § 132, ECHR 2008 ...) as confirmed by reports by
reliable independent international sources.
- The applicant in the present case, however, is charged
in Uzbekistan with aggravated theft, an ordinary crime against
property. He does not assert that he is being persecuted for
political reasons. Nor does he claim to belong to any proscribed
religious movement. It does not follow from the materials at the
Court’s disposal that the applicant belongs to any other
vulnerable groups susceptible of being ill-treated in the requesting
country. The applicant’s allegations that any criminal suspect
in Uzbekistan runs a risk of ill-treatment are too general and there
is no indication that the human rights situation in the requesting
country is serious enough to call for a total ban on extradition to
it. Therefore, it cannot be said that the applicant referred to any
individual circumstances which could substantiate his fears of
ill treatment (see Puzan v. Ukraine, no. 51243/08, §
34, 18 February 2010).
- As
to the applicant’s reference to previous instances of
ill-treatment while in the hands of the Uzbek authorities (see
paragraphs 6, 7 and 70 above), the Court notes the following.
- In
his submissions before the Court the applicant has not produced any
details related to the alleged beatings. The applicant’s
hospitalisation between 7 and 16 June 2004 (see paragraph 7 above)
was necessitated by self-inflicted wounds and was not a result of
police abuse. The medical expert examination report enclosed with his
observations on the admissibility and merits of the application (see
paragraph 71 above) is not conclusive as to the date the injuries
were inflicted and cannot in itself serve as evidence of
ill-treatment. The Court is thus unable to conclude that the
applicant’s description of previous ill-treatment in 1994 2004
is very detailed or convincing (see, by contrast, Garayev v.
Azerbaijan, no. 53688/08, § 72, 10 June 2010).
- More importantly, in the course of extradition
proceedings in Russia the applicant never referred to ill-treatment
by Uzbek officials. In their appeals against the extradition order
the applicant and his counsel merely cited the Court’s
case-law, which is clearly distinguishable from the applicant’s
personal situation (see paragraph 83 above), and referred to the
overall poor human rights situation in the receiving country, as
described by international observers (see paragraphs 14 and 16
above). He raised an issue of his experience of ill-treatment for the
first time when complaining about refusal to grant him temporary
asylum on 10 February 2010 (see paragraph 21 above), that is when the
extradition order had already become final. In such circumstances the
Court is disinclined to find that the applicant has substantiated
allegations of an individualised risk of ill-treatment in the
requesting country.
- Having regard to the above, the Court considers that
the applicant has failed to substantiate his allegations that his
extradition to Uzbekistan would be in violation of Article 3
of the Convention.
- There has accordingly been no violation of that
provision.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Article 5 § 1 (f) of the Convention
that his detention pending extradition had been “unlawful”.
He also complained under Article 5 § 4 of the Convention that he
could not challenge in the Russian courts the lawfulness of his
detention pending extradition.
- Article
5 of the Convention reads, in so far as relevant, as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
A. Arguments by the parties
1. The Government
- The
Government contested the applicant’s arguments.
- They
claimed that the applicant’s detention had been repeatedly
extended by competent prosecutors and courts in full conformity with
domestic procedural laws. The latest extension, to twelve months, had
been authorised, in accordance with Article 109 of the CCP and the
Directive Decision of 29 October 2009 of the Russian Supreme Court,
on 6 April 2010. On 27 April 2010 the applicant had been released
from custody because the maximum period of detention under Article
109 of the CCP had expired.
- The
applicant’s detention had not been arbitrary, as the provisions
of Chapter 13 of the CCP, pursuant to the decisions of the Russian
Constitutional Court, were fully applicable to persons detained with
a view to extradition under Article 466 § 1 of the CCP. In their
submission, Article 466 § 1 of the CCP read in the
light of the decision of the Constitutional Court of 17 February 1998
did not allow to detain a foreign national in the Russian territory
without a court order for more than forty eight hours. They
concluded that the applicant’s right had not been violated by
Article 466 § 1 of the CCP. In their view, Russian domestic
legal provisions governing detention pending extradition met the
criteria of “quality of law”.
- The
applicant had had an opportunity to challenge lawfulness of his
detention in Russian courts pursuant to the Constitutional Court’s
decision of 1 March 2007.
2. The applicant
- The
applicant reiterated his complaint that his detention between
27 April 2009 and 27 April 2010 had been unlawful. He claimed
that the initial decision of 28 April 2009 authorising his placement
in custody had not been compatible with domestic laws. Further, he
emphasised that the first court’s decision to extend his
detention was taken more than six months after the original remand in
custody, in breach of domestic law. In sum, he claimed that his
detention was incompatible with Article 5 § 1 (f).
- The
applicant further asserted that no procedure to challenge the
lawfulness of the prosecutor’s decisions authorising his
detention was available to him, as Article 125 of the CCP did not
provide for an opportunity for immediate release. Moreover, the
applicant claimed that his appeals against decisions to extend his
term of detention had not been examined speedily.
B. The Court’s assessment
1. Admissibility
- The
Court notes that the complaints under Article 5 §§ 1 and 4
of the Convention are not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It considers that they
are not inadmissible on any other grounds and must therefore be
declared admissible.
2. Merits
(a) Article 5 § 1 of the Convention
- The Court reiterates at the outset that Article 5
enshrines a fundamental human right, namely the protection of the
individual against arbitrary interference by the State with his or
her right to liberty (see Aksoy v. Turkey, 18 December 1996, §
76, Reports 1996-VI). The text of Article 5 makes it clear
that the guarantees it contains apply to “everyone” (see
A. and Others v. the United Kingdom [GC], no.
3455/05, § 162, ECHR 2009 ...). Sub-paragraphs
(a) to (f) of Article 5 § 1 contain an exhaustive list of
permissible grounds on which persons may be deprived of their
liberty, and no deprivation of liberty will be lawful unless it falls
within one of those grounds (ibid., § 163).
- It
is common ground between the parties that the applicant was detained
as a person “against whom action is being taken with a view to
... extradition” and that his detention fell under Article 5 §
1 (f). The parties disagreed, however, as to whether the detention
was “lawful” within the meaning of Article 5 § 1 of
the Convention.
- Where the “lawfulness” of detention is in
issue, including the question whether “a procedure prescribed
by law” has been followed, the Convention refers essentially to
national law and lays down the obligation to conform to the
substantive and procedural rules thereof. Compliance with national
law is not, however, sufficient: Article 5 § 1 requires in
addition that any deprivation of liberty should be in keeping with
the purpose of protecting the individual from arbitrariness (see
Erkalo v. the Netherlands, 2 September 1998, § 52,
Reports 1998-VI, and Steel and Others v. the United
Kingdom, 23 September 1998, § 54, Reports
1998-VII).
- Although it is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law,
under Article 5 § 1 failure to comply with domestic law entails
a breach of the Convention and the Court can and should therefore
review whether this law has been complied with (see Benham v. the
United Kingdom, 10 June 1996, § 41, Reports 1996-III;
Ječius v. Lithuania, no. 34578/97, § 68, ECHR
2000 IX; and Ladent v. Poland, no. 11036/03, §
47, ECHR 2008 ...).
- Turning
to the circumstances of the present case, the Court observes that the
applicant’s initial placement in custody was ordered, on
28 April 2009, by the district prosecutor’s office on the
basis of Article 61 of the Minsk Convention. The Court also notes
that, although the decision of 28 April 2009 contained no
reference to Article 466 § 2 of the CCP, the prosecutor’s
authority under domestic law to decide on the applicant’s
placement in custody without a Russian court order must have derived
from that provision (see paragraph 43 above).
- The
Court points out that neither Article 61 of the Minsk Convention nor
Article 466 § 2 of the CCP stipulate any rules on procedure to
be followed when choosing a preventive measure in respect of a person
whose extradition is sought, or any time-limits for his or her
detention pending extradition.
- The
Court observes in this respect 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 46 above).
- Furthermore,
the Government confirmed that the applicant’s detention pending
extradition had been governed by Chapter 13 of the CCP, among other
provisions.
- In
such circumstances the Court considers that, in order to be “lawful”
within the meaning of Article 5 § 1 (f) of the Convention, the
applicant’s detention should be compatible not only with the
requirements of Article 466 § 2 but also with the provisions
governing 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 an 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 Articles 5 § 48 and 31 § 2 of the CCP (see
paragraphs 38 and 39 above) that a district court is a court
authorised to act on the basis of the Russian Code of Criminal
Procedure, 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 on 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.
- Accordingly,
the fact that the applicant’s placement in custody was not
authorised by a Russian court is clearly in breach of Article 108 §
4 of the CCP (see Dzhurayev v. Russia, no. 38124/07, §
74, 17 December 2009).
- Furthermore,
even assuming that the applicant’s initial placement in custody
was compatible with domestic legal provisions, it would have ceased
to be “lawful” after the lapse of the two-month period
provided for by Article 109 § 1 of the CCP. Article 109 § 2
of the CCP unequivocally stipulates that the two-month term of
custodial detention can be extended to six months only on the basis
of a decision by a judge of a district court or a military court at
an equivalent level. However, in the present case the Russian courts
failed to extend the term of the applicant’s detention after
two months. The first judicial extension of the applicant’s
detention took place as late as 19 October 2009, when the St
Petersburg City Court merely stated that the applicant should remain
in custody for an unspecified period of time (see paragraph 27
above). In such circumstances the Court is bound to conclude that
after 27 June 2009, that is, over two months after the date of his
remand in custody, the applicant was detained in breach of domestic
law.
- The Court thus finds that the applicant’s
detention pending extradition cannot be considered “lawful”
for the purposes of Article 5 § 1 of the Convention. In these
circumstances, the Court does not need to consider the applicant’s
additional arguments separately.
- There
has therefore been a violation of Article 5 § 1 of the
Convention.
(b) Article 5 § 4 of the Convention
- The Court reiterates that the purpose of Article 5 §
4 is to guarantee to persons who are arrested and detained the right
to judicial supervision of the lawfulness of the measure to which
they are thereby subjected (see, mutatis mutandis, De
Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76,
Series A no. 12). A remedy must be made available during a person’s
detention to allow that person to obtain speedy judicial review of
its lawfulness. That review should be capable of leading, where
appropriate, to release. The existence of the remedy required by
Article 5 § 4 must be sufficiently certain, failing which it
will lack the accessibility and effectiveness required for the
purposes of that provision (see Talat Tepe v. Turkey, no.
31247/96, § 72, 21 December 2004).
- The
Court observes that it is not disputed between the parties that the
applicant spent one year in detention pending extradition. It
considers that new issues affecting the lawfulness of the detention
might have arisen during that period and that, accordingly, by virtue
of Article 5 § 4, he was entitled to apply to a “court”
with jurisdiction to decide “speedily” whether or not his
deprivation of liberty had become “unlawful” in the light
of new factors which emerged after the decision on his initial
placement in custody (see Ismoilov and Others, cited above, §
146).
- The
Court emphasises that it has already found on numerous occasions that
the provisions of Articles 108 and 109 of the CCP did not allow those
detained with a view to extradition to initiate proceedings for
examination of the lawfulness of the detention in the absence of a
request by a prosecutor for an extension of the custodial measure
(see Nasrulloyev, cited above, § 88; Ismoilov and
Others, cited above, § 151; and Muminov,
cited above, § 114).
- Furthermore,
in the present case the applicant’s attempt to complain about
the lack of judicial authorisation of his detention proved to be
futile, as the district court expressly stated that “[t]he
provisions of the CCP do not establish procedure for extension of the
term of detention of persons in respect of which an extradition
request has been received from a foreign State” (see paragraph
25 above). This decision was subsequently quashed. However, the
applicant could not obtain a final decision on the merits of his
complaint, as the proceedings were discontinued on 8 December
2009 (see paragraph 29 above).
- The
Government have not put forward any detailed explanation as to how
the applicant could challenge the lawfulness of his detention
pursuant to the Constitutional Court’s decision of 1 March
2007. In the absence of any examples of domestic court practice
furnished by the Government demonstrating that persons in situations
similar to that of the applicant could rely on that decision to
obtain judicial review of their detention, the Court is unable to
conclude that the domestic law and practice at the material time
enabled the applicant to effectively challenge the lawfulness of his
detention pending extradition.
- In
these circumstances the Court is not satisfied that the provisions of
the domestic law secured the applicant’s right to bring
proceedings by which the lawfulness of his detention would be
examined by a court.
- It follows that throughout the term of the
applicant’s detention pending extradition he did not have at
his disposal any procedure for a judicial review of its lawfulness.
- There
has therefore been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant contended that he had had no effective remedies in respect
of his complaint under Article 3 of the Convention, in breach of
Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
122. The
Government contested the applicant’s arguments and claimed that
he had had effective domestic remedies as regards his grievances.
123. The
applicant maintained his complaint.
- The Court reiterates that the remedy required by
Article 13 must be effective both in law and in practice. The
“effectiveness” of a “remedy” within the
meaning of Article 13 does not depend on the certainty of a
favourable outcome for the applicant (see Kudła v. Poland
[GC], no. 30210/96, § 157, ECHR 2000 XI).
- The
Court further reiterates that, given the irreversible nature of the
harm that might occur if the alleged risk of torture or ill-treatment
materialised and the importance which the Court attaches to Article
3, the notion of an effective remedy under Article 13 in the context
of extradition and expulsion cases requires (i) independent and
rigorous scrutiny of a claim that there exist substantial grounds for
believing that there was a real risk of treatment contrary to Article
3 in the country of destination, and (ii) the provision of an
effective possibility of suspending the enforcement of measures whose
effects are potentially irreversible (see, with further references,
Muminov, cited above, § 101).
- In
the present case, the applicant’s appeal against
the extradition order was examined by the Russian courts in two
levels of jurisdiction. The Court reiterates that judicial review
proceedings constitute, in principle, an effective remedy within the
meaning of Article 13 of the Convention in relation to complaints in
the context of expulsion and extradition, provided that the courts
can effectively review the legality of executive discretion on
substantive and procedural grounds and quash decisions as appropriate
(see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99,
ECHR 2002-II, and Muminov, cited above, § 102). It is not
disputed between the parties that the Russian courts have a power to
quash an extradition order. It follows that the applicant has at his
disposal a remedy with automatic suspensive effect (see Gebremedhin
[Gaberamadhien] v. France, no. 25389/05, § 66 in fine,
ECHR 2007-...).
127. However,
the Court has already established above that the applicant failed to
refer to any individualised risks of ill-treatment in the requesting
country in the course of these proceedings (see paragraph 87 above).
Accordingly, it cannot be said that the Russian courts disregarded
his arguments that there existed substantial grounds for believing
that there was a real risk of treatment contrary to Article 3 in the
requesting country thus depriving him of effective remedies in
respect of the alleged violation of this provision.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. RULE 39 OF THE RULES OF COURT
- The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see above § 4) must continue in force
until the present judgment becomes final.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 25,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered the amount claimed excessive.
- The
Court notes that it has found violations of Article 5 §§1
and 4 of the Convention in the present case and accepts that the
applicant has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. The Court
therefore awards the applicant EUR 25,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed the following amounts for costs and expenses
incurred before the domestic courts and the Court: EUR 1,800 and
1,650 pounds sterling (GBP) for lawyers’ fees; GBP 175 in
administrative expenses; GBP 2,651.90 in translation fees; and 3,200
Russian roubles (RUB) for medical check-ups. He submitted his
lawyers’, translators’ and doctors’ invoices as
evidence.
- The
Government claimed that not all invoices for translation fees
submitted by the applicant bore stamps or signatures, and asserted
that it was not proven that the sums in question had actually been
paid.
- 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, to the above criteria and to the
fact that no violation was found in part of the application, the
Court considers it reasonable to award the sum of EUR 3,000 covering
costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 3, 5 §§
1 (f) and 4 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- 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 or further order;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts,
plus any tax that may be chargeable to the applicant, to be converted
into Russian roubles at the rate applicable at the date of
settlement:
(i) EUR
25,000 (twenty-five thousand euros) in respect of non pecuniary
damage; and
(ii) EUR
3,000 (three thousand euros) in respect of costs and expenses;
(b) that,
from the expiry of the above-mentioned three months until settlement,
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses the remainder of the applicant’s
claims for just satisfaction.
Done in English, and notified in writing on 3 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić Registrar President
