In the case of Umirov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić, President,
AnatolyKovler,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
MirjanaLazarova Trajkovska,
JuliaLaffranque, judges,
andSøren Nielsen, Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
17455/11) 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 Sadirbek Shavkatovich Umirov (“the
applicant”), on 17 March 2011.
The applicant was represented by Ms S. Gannushkina,
Chairwomanof the Civic Assistance Committee, which is a non-governmental
organisation based in Moscow. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
On 17 March 2011 the President of the First
Section, acting upon the applicant’s request of the same date, 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 to
grant priority treatment to the application.
On 31 May 2011the application was communicated 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 1981 and resides in Moscow.
A. The applicant’s arrest and extradition proceedings
In September 2009 the applicant arrived in Russiafrom Uzbekistan and settled in the Moscow Region.Until December 2009 he was officially
registered with the Russian migration authorities in Moscow. According to the
Government, he subsequently resided without formal registration in the Moscow region.According to the applicant, he always complied with the legal requirement
for registration at one’s place of residence.
In the meantime, on 20 November 2009 the Uzbek
authorities charged the applicant inabsentiaunder Articles 159 § 3(b)
and 244-2 § 1 of the Uzbek Criminal Code, whichpunish calls to overthrow the
constitutional order of Uzbekistan and involvement in religious, extremist,
separatist and other banned organisations (see paragraphs 78-79 below). The
applicant was accused of being member of a group called Warriors of Islamwhich,
apparently, had been prohibited in Uzbekistan and had been classified as an
extremist religious organisation by the Uzbek authorities. Itis stated in the
information note sent by the Uzbek authorities to their Russian counterparts
that this group was afaction of the Islamic Party of Turkestan (formerly called
the Islamic Movement of Uzbekistan), which had been banned in Uzbekistan.
The Uzbek decision listing
the charges against the applicant reads as follows:
“...[The applicant] was actively engaged in spreading
propaganda in the Navoi region.These activities were aimed at securing the
confidentiality of information relating to the group’s actions, securing strict
compliance with the orders issued by the group’s supporters, ensuring the
return [of society] to the roots of Islam and making everyday life based solely
on the rules of the Koran. His activities were also aimed at political and
armed struggle against those who oppose the [group’s] ideas and [those] who are
treated as enemies of Islam. His propaganda activities had the goal of uniting
all Muslims and creating the united State of the “Islamic Caliphate” governed
by rules of Shariah; [all the] while considering the democratic changes in
Uzbekistan [brought about] by means of lawswrong and [illegitimate].
In particular, [the applicant] participated in the activities
of “communes” run by his group in the Navoi region. Having joined others in an
organised criminal group, he studied printed material produced by the group’s
supporters. He was active in spreading propaganda among people having no stable
opinion, encouraging them to join the group and promoting the group’s ideas.
All these had as their subsequent aim the overthrow of the constitutional
order...
Also, in 2008together with his accomplices within the group
[the applicant] participated in the group’s meetings, [which were] aimed at the
armed overthrow of the constitutional order...”
On 20 November 2009 the applicant’s name was put
on a wanted list.
By a decision of 23 November 2009 the Navoi Town
Court of Uzbekistan ordered the applicant’s detention and that he be held in
remand centre no. 7 in the town of Kattakurgan.
B. Application for refugee status and temporary asylum
in Russia
According to the applicant, in November 2009 he
called his relatives in Uzbekistan and learnt that he was wanted by the
Uzbekauthorities on criminal charges.
In April 2010 the applicant requested that the
regional migration authority grant him refugee status. The applicant was given
a certificate confirming that his application for refugee status was being
processed.
The applicant submitted to the migration authority that he had left Uzbekistan because of numerous arrests since September 2009 in the village of Talkok, where he had
been residing at the time. Several people had been arrested on various charges,
for instance in relation to drug trafficking. The applicant also affirmed that:
he was not a member of any political or religious organisation; he had not
taken part in any opposition movement; and he had not distributed any political
or religious literature. Lastly, he stated that he feared returning to Uzbekistan, where he would be placed in detention.
On 21 May 2010 the applicant was arrested and
detained in relation to the criminal proceedings pending against him in Uzbekistan (see paragraph 19 below). It is unclear whether the applicant amended – in any
significant manner – his refugee application on account of the circumstances
relating to these proceedings and the Uzbek extradition request.
By a decision of 5 July 2010 the migration authority
rejected the refugee application in the following terms:
“The applicant has not presented any facts concerning his fear
of political or religious persecution. He indicated during the interview that
he did not know of any political parties and that he had not been a member of
any religious or non-governmental organisations; he had not been the victim of
any violent incidents. Having regard to the reasons for his departure from Uzbekistan, it does not appear that he was persecuted on account of his political views or
religious beliefs.
The applicant is of the Islamic faith, which is the dominant
religion in his country. Nothing prevents him from praying and going to a
mosque. He is not involved in any political activity.
Also, regarding the allegation concerning the arrests in
September 2009 and that the applicant had been ordered to go to a police
station, it does not appear that any repressive measures were taken against
him.
The Federal Migration Authority (FMA) has provided the following
information concerning the political, social, economic and migration situation
in Uzbekistan:
80% of the population are Sunni Muslims. The FMA has no facts
in its possession regarding persecution on religious or political grounds. Article
31 of the Uzbek Constitution and other laws provide for civic rights and
freedoms for all citizens, irrespective of their ethnicity, religious beliefs
or political views. The Freedom of Conscience and Religious Organisations Act
contains clear rules concerning religious organisations, their interaction with
the State and fully guarantees the right to manifest one’s religion, alone or
in community with others...Uzbekistan has ratified, without reservations, all
six main UN treaties concerning human rights and regularly submits reports to
the competent agencies of the United Nations. In total, Uzbekistanhas ratified over sixty international treaties relating to human rights. Uzbekistanis not a party tothe 1951 UN Convention on the Status of Refugees and its
Protocol. However, in November 1999 they signed the Charter of European
Security, thus undertaking to protect refugees. In 1996 Uzbekistanbecame a party to the UN Convention against Torture.
There can be various understandable reasons compelling a person
to leave the country of his origin, but only one qualifies [that person to fall
within] the notion of refugee. The expression “owing to a well-founded fear of
being persecuted” makes all other reasons irrelevant.
The applicant has not adduced convincing grounds for leaving
his country of nationality for reasons which would fall within the scope of
section 1 § 1(1) of the Refugees Act...”
On 8 July 2010 the migration authority
dispatched a letter notifying the applicant of the refusal. The letter also
indicated that the refusal could be challenged before the FMA or a court and
that in the absence of other legal grounds for staying on the territory of Russia the applicant would have to leave it. Apparently, the applicant received
this letter but did not apply for judicial review.
Instead, in October 2010 the applicant requested
that the migration authority grant him temporary asylum in Russia (see paragraph 44 below). The migration authority rejected this request on 20
December 2010. The applicant did not challenge this refusal before a court.
In March 2012 the
applicant lodged a new application for temporary asylum. On 5 June 2012 the
migration authority granted the applicant temporary asylum in Russia, considering that it was necessary in order to provide a legal basis for his continued
presence in Russia and Russia’s compliance with the Court’s indication under
Rule 39 of the Rules of Court. Such temporary asylum should remain in force
until delivery of the final judgment by the Court and, in any event, no longer
than until 5 June 2013.
C. Facts relating to the applicant’s arrest and
detention in Russia with a view to extradition
The applicant was arrested in
the town of Krasnogorsk in the Moscow Region on 21 May 2010.The actual
circumstances leading to the applicant’s arrest remain unclear. The arrest
record reads as follows:
“Identity document: an information document concerning
the search for the religious extremist (passport details); a document
concerning a pending application for refugee status...
Grounds and reasons for arrest: [the applicant] is
subject to an arrest warrant procedure; a detention order [has been] issued by
[an Uzbek] court...
{In pre-printed letters} I have been informed that under
Article 46 of the Code of Criminal Procedure I am entitled to know the
accusation against me,...to have legal assistance from the moment indicated in
Article 49 §§ 2 and 3.1 of the Code, to have meetings in private with counsel
before my first questioning...
I have been informed that I am suspected of offences directed
against the constitutional order of Uzbekistan and [of the] creation of a
criminal community...”
The record bears the applicant’s signature and a note by him
saying that he had read the documents and had no comment on them.
On the same date, the Russian authorities
contacted their Uzbek colleagues, informing them of the applicant’s arrest and
seeking confirmation of the Uzbek authorities’ intention to requestthe extradition
of the applicant. That same day, the Uzbek authorities submitted a
document requesting the applicant’s detentionto the Russian authorities.
The applicant also signed, apparently on 22 May
2010, another document entitled Notification of rights to the suspect. On
the same date, the applicant was interviewed by a deputy town prosecutor and
confirmed to him in writing that he had been informed of his rights not to
incriminate himself and to have the assistance of an interpreter. He waived the
assistance of an interpreter, stating that he could read, speak and understand
Russian.
On 23 May 2010 the Krasnogorsk Town Prosecutor
ordered the applicant’s detention, doing so with reference to the Uzbek
detention order of 23 November 2009 and Article 61 of the 1993 Minsk
Convention (see paragraph 75 below).
According to the applicant, after his arrest his
procedural rights were not explained to him and he was unable to have the
assistance of a lawyer until some time later. In the applicant’s
submission, on 10 June 2010 the staff of the detention facility where he was
being kept refused to allow lawyer L. to visit him, stating that he had no
formal authorisation for that visit from the Krasnogorsk Prosecutor’s Office.
On 28 June 2010 the
Prosecutor General’s Office received a formal extradition request from the
Uzbek authorities, which containedthe following statement:
“We guarantee that, as required under Articles 16, 17 and 24 of
the Uzbek Code of Criminal Procedure, [the applicant] will not be subjected to
torture, cruel, inhuman or degrading treatment or punishment; the extradition
request is not aimed at persecuting him for political reasons, [or] on grounds
relating to race, religious beliefs or nationality. In compliance with Article
66 of the [Minsk] Convention he will not be surrendered to another country
without Russia’s consent...Since 1 January 1998 the death penalty has been
abolished in Uzbekistan...”
On 29 June 2010 the Krasnogorsk Town Prosecutor considered
the applicant’s detention againand ordered, without specifying the duration,
the applicant’s detention under Article 466 § 2 of the CCrP (see
paragraph 56 below).
On 20 July 2010 the town prosecutor applied to
theKrasnogorsk Town Court, seeking authorisation of the applicant’s continued
detention. By a decision of 21 July 2010 the Town Courtconfirmed the lawfulness
of the prosecutor’s previous decisions ordering the applicant’s detention.
Referring to Articles 109 and 466 § 1of the CCrP, the court extended the
applicant’s detention “until 21 August 2010 to amount in total to three months”
(apparently, counting from the date of the applicant’s arrest). Lawyer B. was
present at the detention hearing and acted as counsel for the applicant.
Before the expiry of the previous detention
order, on 13 August 2010 the acting town prosecutor sought an extension of the
applicant’s detention becausethe extradition proceedings were still pending. On
27 August 2010 the Town Court extended the applicant’s detention until 21 November
2010. Lawyer P. was present at the detention hearing and acted as counsel for
the applicant.
Before the expiry of the previous detention
order, the regional prosecutor sought an extension of the applicant’s detention.
On 18 November 2010 the Town Court extended the applicant’s detention
until 21 February 2011, to amount in total to nine months. Lawyer S. was
present at the detention hearing and acted as counsel for the applicant.
On 18 February 2011 the Town Courtexamined an
extension request from the regional prosecutor and extended the applicant’s
detention until 21 May 2011, to amount in total to twelve months. Lawyer
M. was present at the detention hearing and acted as counsel for the applicant.
Apparently, no request for participation in the above
court hearings concerning the applicant’s detention had been submitted by lawyer
L.The transcripts of the above hearings do not contain any request from the
applicant to appoint L. or to dismiss the appointed lawyers for any reason.
On an unspecified date, lawyer L. started to
represent the applicant in the extradition proceedings.
On 16 May 2011 the Moscow Regional Courtexamined
submissions from L. and extended the applicant’s detention until 21 November
2011, concluding that, if at large, the applicant would flee justice. The court
also noted that the Court had made an indication under Rule 39 of the Rules of
Court, thus (temporarily) preventing enforcement of the extradition order which
had become final on 17 March 2011. The applicant appealed. On 7 July 2011
the Appeal Section of the Regional Court upheld the detention order.
Apparently, the applicant did not lodge a cassation appeal.
On 21 November 2011 the acting town prosecutor
ordered the applicant’s release from custody due to the expiry of the maximum
eighteen-month statutory period of detention. The applicant was released on the
same day.
D. Extradition proceedings
In the meantime, on5 October 2010 the Russian
Prosecutor General’s Office issued an extradition order in respect of the
applicant.The order indicated that there were no obstacles to extraditing the
applicant under Russian law and the international treatiesbinding Russia.
According to the applicant, the Krasnogorsk
Prosecutor’s Office did not allow his lawyer L. access to the extradition file
until 12 October 2010, and, even after the lawyer was granted access to the
materials in question, he was unable to obtain a copy of the extradition order.
It appears that the applicant complained of these matters to higher
prosecutor’s offices on several occasions.
In a letter of 26 November 2010 the Moscow
Region Prosecutor’s Office replied to the applicant’s lawyer, stating that his
complaints against the detention centre and the Krasnogorsk Prosecutor’s Office
had been examined and resolved. In particular, hehad been authorised to meet
with the applicant and obtain access to the materials concerning the
extradition proceedings. The letter also stated that the applicant’s lawyer
could receive the extradition order of 5 October 2010 from the applicant, or
make a copy at his own expense from the extradition file.
In a letter of 30 November 2010 the Russian
Prosecutor General’s Office informed the applicant’s lawyer that his complaints
against the Krasnogorsk Prosecutor’s Office and the detention centre were being
examined. The extradition order of 5 October 2010 was enclosed with this
letter.
The applicant challenged the extradition order
before the Moscow Regional Court, stating that he had not been involved in the
offences imputed to him, and, at the time of his departure from Uzbekistan, his name had not been on a wanted list.
On 25 January 2011 the Regional Courtheld a
hearing and heard submissions from the applicant and his lawyer, L. The Regional Courtconfirmed the extradition order in the following terms:
“The Uzbek extradition request is in compliance with the
European Convention on Extradition and Article 58 of the Minsk Convention...
The case file contains assurances from the requesting State that the
extradition request does not aim at persecuting [the applicant] for political
reasons, [or] on grounds relating to race, religion or nationality. The Uzbek
authorities have given guarantees that in the event of his extradition [the
applicant] would not be subjected to torture, inhuman or degrading treatment or
punishment; he would be prosecuted only for the offences mentioned in the
extradition request...The migration authority has dismissed [the applicant’s]
application for refugee status...He has not sought judicial review of this
refusal...He has notsought judicial review of the refusal of temporary
asylum...
The allegation concerning human-rights violations in Uzbekistan has been examined by this court. The general and political situation in that
country has also been taken into consideration...However, the [applicant’s]
allegation in itself is not a reason for granting his challenge tothe
extradition order...
The extradition request contains a statement that [the
applicant] was/is not being persecuted for political reasons or on grounds
relating to race, religion or nationality and that he would not be subjected to
torture, cruel, inhuman or degrading treatment or punishment.
[The applicant] and his lawyer have not adduced any objective
reasons which would allow [this court] to doubt the assurances made by the
Uzbek authorities...When examining [the applicant’s] applications for refugee
status and temporary asylum, the authorities established he had not adduced any
well-founded reasons[to the effect] that he had left his country for reasons
relating to fears of being persecuted on account of his race, religious
beliefs, nationality or his belonging to a specific social group or due to his
political views...”
On 17 March 2011 the Supreme Court of Russia
rejected the applicant’s appeal and upheld the decision of 25 January 2011,
largely relying on the reasoning of the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Refugee proceedings
The Refugees Act (Law no. 4258-I of 19 February
1993) defines a refugee as a person who is not a Russian national and who,
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, ethnic origin, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it (section 1(1)(1)).The migration
authority may refuse to examine an application for refugee status on the merits
if the person concerned has left the country of his nationality in
circumstances falling outside the scope of section 1(1)(1), and does not want
to return to the country of his nationality because of a fear of being held
responsible for an offence (правонарушение)
committed there (section 5(1)(6)).
Persons who have applied for or been granted refugee status cannot be returned against
their willto the State of which they are a national where their life or freedom
would be imperilled on account of their race, religion, nationality, membership
of a particular social group or political opinion (sections 1 and 10(1)).
Having
received a refusal to examine an application for refugee status on the merits and
having decided not to exercise the right of appeal under section 10, the person
concerned must leave the territory of Russia within one month of receiving
notification of the refusal if he or she has no other legal grounds for staying
in Russia (section 5(5)). Under section 10(5), having received a refusal to
examine an application for refugee status on the merits or a refusal of refugee
status and having exercised the right of appeal against such refusals, the
person concerned must leave the territory of Russia within three days of
receiving notification of the decision on the appeal if he or she has no other
legal grounds for staying in Russia. If, after the appeal has been rejected,
the person concerned still refuses to leave the country, he or she is to be
deported (section 13(2)).
If the person satisfies
the criteria set out in section 1(1)(1), or if he or she does not satisfy such
criteria but cannot be expelled or deported from Russia for humanitarian reasons,
he or shemay be granted temporary asylum (section 12(2)). Persons who have been
granted temporary asylum cannot be returned against their will to the country
of which they are a national or to the country of their former habitual
residence (section 12(4)).
B. Extradition proceedings
1. Constitution of the Russian Federation of 1993
Everyone has the right to liberty and security
(Article 22 § 1). Detention is permissible only on the basis of a court order.
The length of time for which a person may be detained prior to obtaining such
an order must not exceed forty-eight hours (Article 22 § 2).
2. Code of Criminal Procedure
The term “court” is defined by the Code of
Criminal Procedure (“the CCrP”) 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 CCrP 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 CCrP
governs the application of preventive measures. Detention is a preventive
measure applied on the basis of a court decision to a person suspected of or
charged with a criminal offence punishable by at least two years’ imprisonment
when it is impossible to apply a more lenient preventive measure (Article 108 §
1). A request for remand in custody may be submitted to a court by an
investigator (следователь)with
the support of the head of the investigative authority or by the police officer
in charge of the inquiry (дознаватель)
with the support of a prosecutor (Article 108 § 3). A request for remand in
custody should be examined by a judge of a district court or a military court
of a corresponding level in the presence of the person concerned (Article 108
§ 4). Appellate courts should examine appeals lodged against judicial
decisions on remand in custody within three days (Article 108 § 11). The period
of detention pending the investigation of a criminal case 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. Further
extensions up to twelve months may be granted with regard to persons accused of
serious or particularly serious criminal offences (Article 109 § 2).
Extensions up to eighteen months may be granted on an exceptional basis with
regard to persons accused of particularly serious criminal offences (Article
109 § 3).
A preventive measure can be applied with a view
to ensuring a person’s extradition in compliance with the procedure established
under Article 466 of the CCrP (Article 97 § 2).
Chapter 54 of the CCrP (Articles
460-468) governs the procedure to be followed in the event of extradition.
Article 462 of the CCrP provides that an
extradition order may be subject to judicial review, in which case the extradition
order should not be enforced until the final judgment.
A court is to review the lawfulness and validity
of a decision to extradite within a month of receipt of a request for review.
The decision should be taken in open court by a panel of three judges in the
presence of a prosecutor, the person whose extradition is sought and the
latter’s legal counsel (Article 463 § 4).
Article 464 § 1 lists the
conditions under which extradition cannot be authorised. Thus, the extradition
of the following should be denied: a Russian citizen (Article 464 § 1-1) or a
person who has been granted asylum in Russia (Article 464 § 1-2); a person in
respect of whom a conviction has become effective or criminal proceedings have
been terminated in Russia in connection with the same act for which he or she
has been prosecuted in the requesting State (Article 464 § 1-3); a person in
respect of whom criminal proceedings cannot be launched or a conviction cannot
become effective in view of the expiry of the statute of limitations or under
another valid ground in Russian law (Article 464 § 1-4); or a person in respect
of whom extradition has been blocked by a Russian court in accordance with the
legislation and international treaties of the Russian Federation (Article 464
§ 1-5). Finally, extradition should be denied if the act that serves as
the basis for the extradition request does not constitute a criminal offence
under the Russian Criminal Code (Article 464 § 1-6).
In the event that a foreign
national whose extradition is being sought is being prosecuted or is serving a
sentence for another criminal offence in Russia, his extradition may be
postponed until the prosecution is terminated, the penalty is lifted on any
valid ground or the sentence is served (Article 465 § 1).
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 “take measures” in order to decide on the preventive
measure in respect of the person whose extradition is being sought. The
preventive measure is to be applied in accordance with 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).
3. Decisions of the Russian Constitutional Court and
Supreme Court
(a) Decision of 17 February 1998
Verifying the compatibility of section 31(2) of
the Law on the Legal Status of Foreign Nationals in the USSR of 1981, the Constitutional Court ruled that a foreign national liable to be expelled from Russia could not be detained for more than forty-eight hours without a court order.
(b) Decision no. 101-O of 4 April 2006
Assessing the compatibility of Article 466 § 1
of the CCrP 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, which in the case
of Russia was the procedure laid down in the CCrP. That procedure comprised, in
particular, Article 466 § 1 of the CCrP and the provisions 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 CCrP did not allow the
authorities to apply a custodial measure without complying with the procedure
established in the CCrP or in excess of the time-limits fixed in the Code.
(c) Decision no. 158-O of 11 July 2006 on the
Prosecutor General’s request for clarification
The Prosecutor General asked the Constitutional
Court for 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 refused the request on
the grounds that it was not competent to indicate specific provisions of
criminal law governing the procedure and the maximum periods for holding a
person in custody with a view to extradition. That matter was within the
competence of the courts of general jurisdiction.
(d) 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, 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.
(e) 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 CCrP, stating that this provision “does not establish maximum periods 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 the constitutional rights of [the claimant] ...”
(f) Ruling no. 22 of 29 October 2009 by the
Russian Supreme Court
In Ruling no.
22, adopted by the Plenary Session of the Supreme Court of the Russian
Federation on 29 October 2009 (“the Ruling”), it was stated that, pursuant to
Article 466 § 1 of the CCrP, only a court could order the remand 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 remand
in custody in that situation was to be carried out in accordance with Article 108
of the CCrP and following a prosecutor’s request for that person to be remanded
in custody (paragraph 34 of the Ruling). In deciding to remand a person in
custody, a court was to examine whether 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 CCrP) for a period not exceeding two months, and the
prosecutor’s decision could be challenged in the courts under Article 125 of
the CCrP.
In extending a person’s detention with a view to
extradition, a court was to apply Article 109 of the CCrP.
(g) Ruling no. 11 of 14 June 2012 by the Russian
Supreme Court
In Ruling no. 11
of 14 June 2012 the Plenary session of the Supreme Court indicated with
reference to Article 9 of the CCrP and Article 3 of the Convention that
extradition could be refused if exceptional circumstances disclosed that such
extradition would entail a danger to the person’s life and health on account
of, among others, his or her age and physical condition (paragraph 13 of the Ruling).
Russian authorities dealing with an extradition case should assess the
circumstances relating to the absence of serious reasons to believe that the
person concerned could be subject to ill-treatment or that this person could be
persecuted because of his or her race or political opinions (paragraph 14).
4. Judicial decisions concerning the risk of
ill-treatment in extradition cases
By a judgment of 10 December 2010 the Supreme
Court of Tatarstan annulled an extradition order in respect of Mr Soliyev. With
reference to the international reports and other material submitted by the
applicant and the European Court’s case-law on the matter, the court considered
that there was a persistent practice of torture of detained suspects or
convicts in Uzbekistan and that the applicant also faced a risk of such
mistreatment. The court also noted that “in a number of judgments the European Court has held that the mere fact of detention in this country created a risk of
ill-treatment”.On 3 February 2011 the Supreme Court of Russia upheld the
judgment of 10 December 2010, noting that there had been a material
difference between the criminal offences mentioned in the extradition request
and the corresponding offences under the Russian Criminal Code; that the
extradition order had been issued before the final decision had been taken on
the applicant’s refugee application; and that there had been indications of a
risk of ill-treatment in Uzbekistan, in particular in the absence of any
relevant assurances on the part of the Uzbek authorities.
By a judgment of 28 December 2010 the Saratov Regional Court annulled an extradition order in respect of Mr Khodzhamberdiyev,
mainly because of inconsistencies and mistakes made in the comparative
assessment of the relevant criminal offences under Uzbek and Russian law. In
addition, the court made the following findings:
“... The allegation of a risk of ill-treatment should be
dismissed because the case file contains written assurances made by the deputy
Prosecutor General of Uzbekistan, who affirmed that prosecution of the
applicant would be in strict conformity with the Uzbek Code of Criminal
Procedure ... The court has no reason to distrust these guarantees ...
Article 464 of the Russian CCrP prohibits the extradition of a
person who has been granted asylum in Russia on account of persecution in the
requesting State because of his race, religion, citizenship, ethnic or social
origin or political beliefs.
Prior to the date of the extradition order, [the applicant] had
applied for refugee status and had subsequently sought judicial review of the
refusal of such status in Russia. Such review proceedings have not been
completed. Taking into account paragraph 1 and 4 of section 10 of the Refugees
Act, a person cannot be extradited before a court decision has been taken on
judicial review of a refusal of refugee status. Thus, the extradition order was
premature, in breach of the Refugees Act ...”
On 4 March 2011 the Supreme Court upheld the judgment of
28 December 2010.
C. Other relevant documents
By a decision of 14 February
2003 the Supreme Court of Russia classified as terrorist a number of
organisations, including the Islamic Party of Turkestan (formerly known as the
Islamic Movement of Uzbekistan). The Supreme Court prohibited the activity of
these organisations on the territory of Russia. As regards the Islamic Party of
Turkestan (“the IPU”), the decision contains the following information:
“[T]he IPU was created in 1995. Its activities are sponsored
and financed by foreign Islamist clerical centres, [and are] aimed at establishing
extremist religious organisations in Uzbekistan and other countries of the
Commonwealth of Independent States. The agenda of the party is to restore the
Islamic Caliphate... Its immediate goals include destabilisation of the internal
political situation in Uzbekistan by way of terrorist acts, military actions,
hostage taking...Since early 1999 the IPU’s actions have become radically
violent, including explosions and kidnappings.The IPU has active contacts with
the Taliban Movement...”
III. RELEVANT INTERNATIONAL DOCUMENTS AND OTHER
MATERIAL
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).
Extradition for the institution
of criminal proceedings can be sought with regard to a person whose acts
constitute crimes under the legislation of the requesting and requested parties
and which are punishable by imprisonment for at least one year (Article 56 § 2).
Upon receipt of a request for extradition, the
requested country should immediately take measures to search for and arrest the
person whose extradition is being 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 make reference to a detention order
and indicate that a request for extradition will follow (Article 61 § 1). A
person may be arrested even without the above petition, provided there are
reasons to suspect that he or she committed in another Contracting State a
criminal offence for which extradition may be requested (Article 61 § 2). If
the person is arrested or detained 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 remand
in custody (Article 62 § 1).
In addition, Article 61-1 provides that before
receiving a request for extradition, a ContractingState should search for a
person in its territory, at the request of another ContractingState and if
there are reasons to do so. The request for a search should provide all
available information and should be accompanied with a certified detention
order.
B. Material concerning Uzbekistan
1. Criminal Code of Uzbekistan
Article
159 of the Uzbek Criminal Code, entitled “Attacks against the constitutional
order of the Republic of Uzbekistan”, refers to public calls for
unconstitutional change to the existing structure of the State, for the seizure
of power or removal from power of legally elected or designated authorities or
for the unconstitutional violation of the unity of the territory of the
Republic of Uzbekistan, as well as the production or dissemination of materials
having such content. Such acts are punishable by a fine of up to five years’
imprisonment. When committed by an organised group or in its interest, they are
punishable by up to twenty years’ imprisonment (§ 3 (b)).
Article 244§ 2 of the Code,
entitled “Establishing, leading or participating in religious extremist,
separatist, fundamentalist or other prohibited organisations”, refers to the
offence of establishing, leading or participating in religious extremist,
separatist, fundamentalist or other prohibited organisations. Such acts are
punishable by a term of imprisonment of up to fifteen years and, if they cause
serious damage, up to twenty years.
2. Material concerning the human-rights situation in Uzbekistan
For relevant documents on Uzbekistan in the time span between 2002 and 2007, see Muminov v. Russia, no. 42502/06, §§ 67‑74, 11 December 2008.
(a) The United Nations
In support of his
allegation of a risk of ill-treatment in Uzbekistan, the applicant relied on
the 2010 report of the UN Human Rights Committee (CCPR/C/UZB/CO/3), which reads, in so far as relevant, as
follows:
“11. The Committee notes with concern the continued reported
occurrence of torture and ill-treatment, the limited number of convictions of
those responsible, and the low sanctions generally imposed, including simple
disciplinary measures, as well as indications that individuals responsible for
such acts were amnestied and, in general, the inadequate or insufficient nature
of investigations on torture/ill-treatment allegations. It is also concerned
about reports on the use, by courts, of evidence obtained under coercion,
despite the 2004 ruling of the Supreme Court on the inadmissibility of evidence
obtained unlawfully...
19. The Committee is concerned regarding the limitations and
restrictions on freedom ofreligion and belief, including for members of
non-registered religious groups. It isconcerned about persistent reports on
charges and imprisonment of such individuals. It isalso concerned about the
criminalization, under article 216-2 of the Criminal Code, of“conversion of
believers from one religion to another (proselytism) and other missionaryactivities”
(CCPR/C/UZB/3, para. 707). (art. 18)...”
(b) Human Rights Watch
In January 2011 Human Rights
Watch released its annual World Report 2010. The chapter entitled “Uzbekistan”, in so far as relevant, states:
“Uzbekistan’s human rights record remains abysmal, with no
substantive improvement in 2010. Authorities continue to crackdown on civil
society activists, opposition members, and independent journalists, and to
persecute religious believers who worship outside strict state controls ...
Torture remains rampant in Uzbekistan. Detainees’ rights are
violated at each stage of investigations and trials, despite habeas corpus
amendments that went into effect in 2008. The Uzbek government has failed to
meaningfully implement recommendations to combat torture that the United
Nations special rapporteur made in 2003.
Suspects are not permitted access to lawyers, a critical
safeguard against torture in pre-trial detention. Police use torture and other
illegal means to coerce statements and confessions from detainees. Authorities
routinely refuse to investigate defendants’ allegations of abuse...
Although Uzbekistan’s constitution ensures freedom of religion,
Uzbek authorities continued their unrelenting, multi-year campaign of arbitrary
detention, arrest, and torture of Muslims who practice their faith outside
state controls or belong to unregistered religious organizations. Over 100 were
arrested or convicted in 2010 on charges related to religious extremism.
...
The Uzbek government’s cooperation with international
institutions remains poor. It continues to deny access to all eight UN special
procedures that have requested invitations, including those on torture and
human rights defenders ...”
The applicant also relied on
Human Rights Watch’s 2011 report entitledNo One Left to Witness, which
reads, in so far as relevant, as follows:
“...Nearly a decade since the special rapporteur determined
that torture in Uzbekistan was “systematic” and “widespread”, and almost seven
years since the Andijan massacre, Uzbekistan’s atrocious human rights record
and the position of its independent civil society activists continue to worsen.
The Uzbek government has used the passage of habeas corpus and other reforms as
public relations tools, touting the laws as signs of its ongoing
“liberalization” of the criminal justice system. But there is no evidence the
Uzbek government is committed to implementing the laws that it has passed or to
ending torture in practice.
In fact, in several important respects, the situation has
deteriorated. The government has moved to dismantle the independent legal
profession and has closed off the country to independent monitoring and human
rights work. Arrests and persecution of political and human rights activists
have increased, and credible reports of arbitrary detention and torture of
detainees, including several suspicious deaths in custody, have continued. The
crackdown on independent Muslims has proved unrelenting, and the government has
remained persistent in its refusal to allow domestic and international NGOs,
including Human Rights Watch, to operate without interference from authorities.
One respected criminal defense lawyer in Tashkent recently described this sense
of deepening crisis. Torture in pre-trial detention remains widespread and may
even be on the rise, she found, the only difference now is that there is “no
one left to witness” ongoing abuses...”
(c) Amnesty International
In Amnesty International’s2009 Report onUzbekistan, published in May 2009, that organisation stated that it continued to receive
persistent allegations of widespread torture and ill-treatment, stemming from
persons suspected of being members of banned Islamic groups or having committed
terrorist offences. The report stressed that the Uzbek authorities continued to
actively seek the extradition of those persons from neighbouring countries,
including Russia, and that most of those returned to Uzbekistan were held
incommunicado, which increased their risk of being tortured or ill-treated.
The chapter on Uzbekistanin the Amnesty
International 2011 annual report, released in May of the same year, in so far
as relevant, states as follows:
“Reports of torture or other ill-treatment continued
unabated. Dozens of members of minority religious and Islamic groups were given
long prison terms after unfair trials ...
...
Torture and other ill-treatment
Despite assertions by the
authorities that the practice of torture had significantly decreased, reports
of torture or other ill-treatment of detainees and prisoners continued
unabated. In most cases, the authorities failed to conduct prompt, thorough and
impartial investigations into these allegations.
Several thousand people convicted of involvement with Islamist
parties or Islamic movements banned in Uzbekistan, as well as government
critics and political opponents, continued to serve long prison terms under
conditions that amounted to cruel, inhuman and degrading treatment.
Uzbekistan again refused to allow the UN Special Rapporteur on
torture to visit the country despite renewed requests.
...
Counter-terror and security
Closed trials started in January of nearly 70 defendants
charged in relation to attacks in the FerghanaValley and the capital, Tashkent, in May and August 2009 and the killings of a pro-government imam and a
high-ranking police officer in Tashkent in July 2009. The authorities blamed
the Islamic Movement of Uzbekistan (IMU), the Islamic Jihad Union (IJU) and the
Islamist Hizb-ut-Tahrir party, all banned in Uzbekistan, for the attacks and
killings. Among the scores detained as suspected members or sympathizers of the
IMU, the IJU and Hizb-ut-Tahrir in 2009 were people who attended unregistered
mosques, studied under independent imams, had travelled abroad, or were
suspected of affiliation to banned Islamic groups. Many were believed to have
been detained without charge or trial for lengthy periods. There were reports
of torture and unfair trials.
...
• In April, Kashkadaria Regional Criminal Court sentenced
Zulkhumor Khamdamova, her sister Mekhriniso Khamdamova and their relative,
Shakhlo Pakhmatova, to between six and a half and seven years in prison for
attempting to overthrow the constitutional order and posing a threat to public
order. They were part of a group of more than 30 women detained by security
forces in counter-terrorism operations in the city of Karshi in November 2009.
They were believed to have attended religious classes taught by Zulkhumor
Khamdamova in one of the local mosques. The authorities accused Zulkhumor
Khamdamova of organizing an illegal religious group, a charge denied by her
supporters. Human rights defenders reported that the women were ill-treated in
custody; police officers allegedly stripped the women naked and threatened them
with rape.
• Dilorom Abdukadirova, an Uzbek refugee who had fled the
country following the violence in Andizhan in 2005, was detained for four days
upon her return in January, after receiving assurances from the authorities
that she would not face charges. In March, she was detained again and held in
police custody for two weeks without access to a lawyer or her family. On 30
April, she was convicted of anti-constitutional activities relating to her
participation in the Andizhan demonstrations as well as illegally exiting and
entering the country. She was sentenced to 10 years and two months in prison
after an unfair trial. Family members reported that she appeared emaciated at
the trial and had bruises on her face.
...
Freedom of religion
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.
• Suspected followers of the Turkish Muslim theologian, Said
Nursi, were convicted in a series of trials that had begun in 2009 and
continued into 2010. The charges against them included membership or creation
of an illegal religious extremist organization and publishing or distributing
materials threatening the social order. By December 2010, at least 114 men had
been sentenced to prison terms of between six and 12 years following unfair
trials. Reportedly, some of the verdicts were based on confessions gained under
torture in pre-trial detention; defence and expert witnesses were not called;
access to the trials was in some cases obstructed while other trials were
closed.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE3OF THE CONVENTION
The applicant complained that his extradition to
Uzbekistan would subject him to a real risk of ill-treatment in breach of
Article 3 of the Convention. It reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The parties’ submissions
The Government argued that the applicant did not
have victim status, as enforcement of the extradition order had been and
remained suspended due to the application of Rule 39 of the Rules of Court.The Uzbek
authorities had provided assurances that the applicant would not be prosecuted
for offences other than those indicated in the extradition request; that he
would not be surrendered to another State without Russia’s consent; and that he
would not be subjected to ill-treatment. The offences for which the applicant
was being prosecuted did not entail the possibility of a sentence of capital
punishment. The Russian courts had delved into the issue of the possible risk
of the applicant’s ill-treatment and had dismissed it.
The applicant argued that none of the Russian
authorities had properly examined his claim that he would be exposed to a risk
of being subjected to ill-treatment if extradited to Uzbekistan. Those
authorities had only relied on the material obtained from the Russian
governmental agencies. No attempt had been made to study reliable independent
sources. The Court had previously confirmed that the ill-treatment of detainees
was a pervasive and enduring problem in Uzbekistan, especially in respect of
detainees charged with politically-motivated criminal offences, as in his case.
This submission had been and remained corroborated by other independent
sources. If extradited, the applicant would be placed in detention pending
trial and thus was running a risk of torture in view of the charges against
him. The Uzbek assurances should be disregarded, in view of the overall climate
of impunity for human rights abuses in Uzbekistan and absence of any control
mechanism attached to the assurances given by the Uzbek authorities.
B. The Court’s assessment
1. Admissibility
The Court notes that the extradition order
remains in force and thus that the applicant can still be regarded as running a
risk of extradition in view of the criminal case pending against him in
Uzbekistan. It is also noted that in June 2012 the applicant was granted
temporary asylum in Russia, which is a temporary measure aimed at Russia’s
complying with the Court’s indication under Rule 39 of the Rules of Court and
at regularising the applicant’s presence in the country for the time being (see
paragraph 18 above). It has not been alleged, and the Court does not consider,
that the above measure affected the applicant’s victim status since the
extradition order, which is at the heart of the present complaint, remains
enforceable. Therefore, the applicant has not lost victim status in respect of
the alleged violation of Article 3 of the Convention.
The Court also notes that the Government has not
argued that the applicant did not exhaust domestic remedies in respect of the
present complaint on account of his failure to seek judicial review of the
decisions taken by the Russian migration authorities in respect of his
applications for refugee status and temporary asylum.
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
(a) General principles
The Court 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 requesting country.The establishment of
that responsibility inevitably involves an assessment of the situation 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 requesting country, whether under general international law, the Convention
or otherwise. In so far as any responsibility under
the Convention is or may be incurred, it is responsibility incurred by the
extraditing Contracting State by reason of its having taken action which has as
a direct consequence the exposure of an individual to proscribed ill-treatment (seeMamatkulov
and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67,
ECHR 2005‑I, and
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 the
applicant being extradited to the requesting country, bearing in mind the
general situation there and his personal circumstances (seeVilvarajah 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; see also paragraphs 99-100
below concerning the assessment of and weight to be given to the available
material).
As regards the general situation in a particular
country, the Court considers that it can attach certain weight to the
information contained in recent reports from independent international
humanrightsprotection organisations 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 requesting 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 describe a general situation, an applicant’s specific
allegations in a particular case require corroboration by other evidence (see Mamatkulov
and Askarov, cited above, § 73).
Concerning its own scrutiny, the Court
reiterates that, in view of the subsidiary nature of its role, it must be
cautious in taking on the role of a first-instance tribunal of fact, where this
is not rendered unavoidable by the circumstances of a case. The Court has held
in various contexts that where domestic proceedings have taken place, it is not
the Court’s task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to assess the
evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC],
no. 23458/02, §§ 179-80, 24 March 2011). Although the Court is not
bound by the findings of domestic courts, in normal circumstances it requires
cogent elements to lead it to depart from the findings of fact reached by those
courts (ibid.).
At the same time, as already mentioned, in
accordance with Article 19 of the Convention, the Court’s duty is to
ensure the observance of the commitments undertaken by the Contracting Parties
to the Convention. With reference to extradition or deportation, the Court reiterates that in cases where an applicant provides
reasoned grounds which cast doubt on the accuracy of the information relied on
by the respondent Government, the Court must be satisfied that the assessment
made by the authorities of the Contracting State is adequate and sufficiently
supported by domestic materials, as well as by materials originating from other
reliable sources (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007).
In assessing such material,
consideration must be given to its source, in particular its independence,
reliability and objectivity. In respect of reports, the authority and
reputation of the author, the seriousness of the investigations by means of
which they were compiled, the consistency of their conclusions and their
corroboration by other sources are all relevant considerations (see Saadi v.
Italy [GC], no. 37201/06, § 143, ECHR 2008). Consideration must be given
to the presence and reporting capacities of the author of the material in the
country in question. In this respect, the Court observes that States (whether
the respondent State in a particular case or any other Contracting or
non-Contracting State), through their diplomatic missions and their ability to
gather information, will often be able to provide material which may be highly
relevant to the Court’s assessment of the case before it. It finds that the
same consideration must apply, a fortiori,
in respect of agencies of the United Nations, particularly given their direct
access to the authorities of the requesting country as well as their ability to
carry out on-site inspections and assessments in a manner which States and
non-governmental organisations may not be able to do (see NA. v. the United Kingdom, no. 25904/07, § 121, 17 July 2008).
While the
Court accepts that many reports are, by their very nature, general assessments,
greater importance must necessarily be attached to reports which consider the
human rights situation in the requesting country and directly address the
grounds for the alleged real risk of ill-treatment in the case before the
Court. Ultimately, the Court’s own assessment of the human rights situation in
a requesting country is carried out only to determine whether there would be a
violation of Article 3 if the applicant in the case before it were to be
extradited to that country. Thus the weight to be attached to independent
assessments must inevitably depend on the extent to which those assessments are
couched in terms similar to Article 3 (ibid, § 122).
(b) Application of the principles to the present case
(i) Domestic proceedings
The Court observes that the applicant arrived
in Russia in September 2009 and was officially registered as resident there. In
November 2009 a criminal case was opened against him in Uzbekistan. Having learnt about it, in April 2010 the applicant requested that the regional
migration authority grant him refugee status. Since the applicant was not
subject to any deportation or removal measureat the time, it may be assumed
that the purpose of the refugee application was to impede his eventual
extradition and/or to secure a legal ground for his presence on the territory of Russia. In July 2010 the refugee application was rejected. On 5 October 2010
the Russian Prosecutor General’s Office issued an extradition order in respect
of the applicant. In June 2012 the migration authority granted temporary asylum
to the applicant, on account of the continuing application of the Court’s
indication to the Russian authorities under Rule 39 of the Rules of Court (see
paragraph 18 above).
As recently reiterated by the Russian Supreme
Court (see paragraph 68 above), the Russian authorities were called to assess the
existence and scope of the risk of ill-treatment of the applicant. They were
required to do so with reference to those facts which were known or ought to
have been known to themwhen they examined the applicant’s application for
refugee status and at the time of the extradition case which concluded with the
extradition order.
The Court has not been provided with copies of
the applicant’s submissions before the domestic authorities in relation to the
alleged risk of his being subjected to ill-treatment. However, it follows from
the available material that, apparently at some stages of the proceedings
without the benefit of legal assistance, he argued in substance that, in view
of the nature of the criminal charges against him, he would be persecuted for
“political and religious” reasons in Uzbekistan. Apparently, he did not
adduce any evidence before the migration authorities concerning the Warriors
of Islamgroup, while denying any previous involvement in related religious
activities.Admittedly, there was scarce
recent and specific information reporting cases of ill-treatment in Uzbekistan of detainees charged in relation to their membership of this group and/or their
affiliation to the Islamic Movement of Uzbekistan or the Islamic Party of
Turkestan.
The Court further observes that the regional
migration authority focused on the “political” aspect of persecution. Relying
on a general information note (covering an unspecified period of time) from the
Federal Migration Authority on the general human rights situation in Uzbekistan, the migration authority concluded that the applicant had left his country of
nationality for reasons unrelated to a well-founded fear of being persecuted.
As to the examination of the issue of a risk of
ill-treatment in the course of the extradition proceedings, it does not follow
from the available material that after his arrest the applicant made any
specific allegations of a risk of ill-treatment in Uzbekistan. This explains,
at least in part, why the extradition order contained no assessment of the risk
of the applicant being subjected to inhuman or degrading treatment in Uzbekistan. The court conducting judicial review of the extradition order referred to the
conclusions reached by the migration authorityin respect of the refugee
application.
(ii) The Court’s assessment
In line with the case-law cited above, the
Court shall 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 has had occasion to deal with a
number of cases raising an issue of a risk of ill-treatment in the event of a
foreigner’s extradition or expulsion to Uzbekistan from Russia or another Council of Europe member State.
In one of
these cases, the Court noted the disturbing situation with regard to human
rights in Uzbekistan but considered that the mere possibility of
ill-treatment on account of an unsettled situation there would not in itself
give rise to a breach of Article 3, in the
absence of any adverse interest the Uzbek authorities had in the applicants,
for instance on account of pending criminal proceedings or previous political
activities (see N.M. and M.M. v. the United Kingdom (dec.),
nos. 38851/09 and 39128/09, 25 January 2011, in which case the
applicants alleged that they would be at risk of ill-treatment in
Uzbekistan because their exit visas had expired and because they had claimed
asylum in the United Kingdom). In reaching the above conclusion, the Court also
noted that it was unlikely that the applicants would be kept in detention in
the event of their return to Uzbekistan.
By comparison, as regards detainees in
Uzbekistan, the Court stated, with reference to materials from various sources
covering the time span between 2002 and 2010, in a number of judgments
concerning expulsion or extraditionto Uzbekistan that the available updated and
reliable material confirmed the persisting serious issue concerning
ill-treatment of detainees; that there was no concrete evidence to demonstrate
any fundamental improvement in that area; and that the respondent Government
had either underestimated the gravity of the humanrights situation in
Uzbekistan or had failed to show that the situation had improved during the
period under consideration (see, among many others, Muminov v. Russia,
no. 42502/06, §§93-96, 11 December 2008, and Yakubov v. Russia,
no. 7265/10, §§ 81-82, 8 November
2011).
These considerations served as the background
describing the general situation for the Court’s analysis of the applicants’
individual circumstances in each case.As the Court stated in Mamatkulov and
Askarov (cited above, §§ 72-73), while the reports of international human
rights organisations denounced an administrative practice of torture and
ill-treatment of political dissidents and the Uzbek regime’s related repressive
policy and described the general situation in Uzbekistan, they did not support
the specific allegations made by the applicants in that case and required
corroboration by other evidence.
For example, the Court dealt with a case
concerning applicants who were suspected of financing insurgents in relation to
the unrest in Andijan in May 2005 (see Ismoilov and Others v. Russia, no. 2947/06, §§ 116-28, 24 April 2008). Some of them had fled
persecution in Uzbekistan on account of their religious beliefs, had earlier
experienced ill-treatment at the hands of the Uzbek authorities or had seen
their relatives or business partners arrested and charged with participation in
illegal extremist organisations. The Court considered that the available
reliable reports indicated that the persons charged in connection with the
Andijan events were likely to be detained, if extradited, and were at an
increased risk of ill-treatment. The Court concluded that the applicants, who
had in the meantime been granted protection from the UNHCR, would be at a real
risk of suffering ill-treatment if returned to Uzbekistan.
For comparison, in Elmuratov v. Russia(no.
66317/09, § 84, 3 March 2011) the
Court considered that the mere fact that the applicant was charged with
theft in Uzbekistan did not suffice to conclude he ran a risk of being tortured
in the event of his extradition to that country. The Court stated that his
allegation that any criminal suspect in Uzbekistan ran a risk of ill-treatment was too general and that there was no indication
that the human rights situation in the requesting country
was serious enough to call for a total ban on extradition
to it.
In Garayev v. Azerbaijan(no. 53688/08, § 72, 10 June 2010) the Court noted that the
applicant’s family had been either arrested or prosecuted in Uzbekistan, that
their accounts of ill-treatment were mutually consistent and appeared to be
credible, and that the applicant himself had been previously arrested and
convicted in suspicious circumstances. The Court noted that the applicant’s
description of previous ill-treatment was detailed and convincing. Therefore,
despite the fact that the applicant was wanted for an offence which was not
politically motivated, the Court considered that he ran a real risk of being
subjected to treatment contrary to Article 3 of the Convention.
Indeed, as regards what have been termed
“politically motivated offences”, the Court has examined a number of cases in
which the applicants were accused of criminal offences in relation to their
involvement with prohibited religious organisations in Uzbekistan, for exampleHizb
ut-Tahrir (“HT”). For instance, in Muminov (cited above, § 95) the
Court noted that, even though the applicant faced expulsion from Russia to
Uzbekistan after his extradition there had been refused, it remained the case
that he was wanted by the Uzbek authorities for his alleged involvement in the
activities of HT and that there were serious reasons to believe that there was
ongoingviolent persecution of members or supporters of that organisation, whose
underlying aims appeared to be both religious and political and in
contradiction with the policies pursued by the government in place (see also Karimovv.
Russia, no. 54219/08, §§ 10 and 100,
29 July 2010).
The Court considers that the present case is
similar to this last group of cases. The main thrust of the applicant’s
argument before the Court is that being accused in relation to the activity of
an Islamic religious group classified in Uzbekistan as extremist he runs a real
risk of ill-treatment in the event of his extradition there.
The Court
observes that the available reports refer to the Uzbek authorities’
campaign of detention and criminal prosecution of Muslims who practice their
faith outside state controls or who belong to unregistered religious
organisations, groups or informal associations. The Court has previously considered
that there was a serious issue relating to
ill-treatment of detainees charged in relation to their membership of
and activities within such organisations, groups or informal associations,
sometimes with an intertwined religious and political agenda (see, for
instance, Abdulazhon Isakov v. Russia, no. 14049/08, § 110, 8 July 2010; Sultanov v.
Russia, no. 15303/09, § 72, 4
November 2010; and Ergashev v. Russia, no. 12106/09, § 113, 20 December 2011).
As to the applicant’s personal situation, the
applicant is wanted by the Uzbek authorities on charges of religious extremism
because of his presumed participation in the activities of a proscribed
religious group. It is undisputed that this group was unlawful in Uzbekistan as an extremist Islamic organisation and that it was part of, or affiliated to,
the Islamic Party of Turkestan (also or previously known as the Islamic
Movement of Uzbekistan). Concerning the latter, it is classified and prohibited
as an extremist/terrorist organisation in Uzbekistan, Russia and some other countries.
The Uzbek
authorities were of the opinion that the applicant had been engaged in
active propaganda activitiesin the Navoi region some time in 2008-09 (see
paragraph 8 above). The group’s ideas and goals apparently included a return to
the roots of Islam, making everyday life based solely on the rules of the Koran
and creating a united State of the “Islamic Caliphate” governed by the rules of
Shariah. The foregoing goals required or could require political and armed
struggle against those who oppose such ideas, the democratic legislative
changes in Uzbekistan being considered “wrong and [illegitimate]”.The Uzbek
authorities also claimed that the applicanthad studied printed material
produced by the group’s supporters, that he had encouraged others to join the
group and had promoted the group’s ideas during meetings.
The above constituted the basis of the
extradition request in respect of the applicant. Various international reports
and the Court itself in a number of judgments (see above) have pointed to the
risk of ill-treatment which could arise in similar circumstances. This could
not have been overlooked by the Russian authorities,who dealt with the
applicant’s case in 2010 and early 2011.In other words, these circumstances “ought
to have been known to the ContractingState” at the relevant time (see, as a
recent authority, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 121, 23 February 2012).
Against
this background, the Court notes the summary and unspecific reasoning adduced
by the domestic authorities, and the Government before the Court, to dispel the
alleged risk of ill-treatment on account of the above considerations, including
the evident pre-existing adverse interest the Uzbek authorities had
inthe applicant. The Court is bound to observe that the existence of domestic
laws and the ratification of international treaties guaranteeing respect for
fundamental rights are not in themselves sufficient to ensure adequate
protection against the risk of ill-treatment where, as in the present case,
reliable sources have reported practices resorted to or tolerated by the
authorities which are manifestly contrary to the principles of the Convention
(see Hirsi Jamaa and Others, cited above, § 128).Furthermore, it is noted that the court conducting judicial
review in the present case stated that the allegation of a risk of
ill-treatment“in itself [was] not a reason for granting [the] challenge tothe
extradition order”. In such circumstances, the Court doubts that the issue of
the risk of ill-treatment was subject to rigorous scrutiny in the extradition
case. No fair attempt was made at the domestic level to assess the materials originating from reliable sources other than
those provided by the Russian public authorities.
Lastly, the Court has taken note of the
assurances provided by the Uzbek authorities.However, like in some previous
cases, cited above, having examined their contents, the Courtis not persuaded
that these assurances were sufficient to dispel the alleged risk of
ill-treatment in the event of the applicant’s extradition to Uzbekistan.In this respect, the Court reiterates that it has already cautioned against
reliance on diplomatic assurances against torture from States where torture is
endemic or persistent. Furthermore, it should be pointed out that even where
such assurances are given, that does not absolve the Court from the obligation
to examine whether such assurances provided, in their practical application, a
sufficient guarantee that the applicant would be protected against the risk of
treatment prohibited by the Convention (see, Chahal, § 105 and Saadi, § 148, both cited
above). The Court finds unconvincing the national authorities’ reliance,
without any assessment or discussion, on such assurances for dispelling the
risk of ill-treatment.
In view of the above considerations and having regard, inter alia,to
the background of the criminal prosecution of the applicant, the nature and the
factual basis of the charges against the applicant, the available material
disclosing a real risk of ill-treatment of detainees in a situation similar to that
of the applicant and the absence of sufficient elements dispelling this risk,
the Court concludes that the applicant’s extradition to Uzbekistan on the basis
of the extradition order of 5 October 2010 would be in breach of Article 3 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION IN CONJUNCTION WITH ITS ARTICLE 3
The applicant also argued that his above
complaint under Article 3 of the Convention had not been properly assessed at
the domestic level, in breach of Article 13 of the Convention.
The Government contested the applicant’s
submission.
Having regard to the applicant’s submissions,
the Court considers that the gist of his claim under Article 13, which it
considers admissible, is the domestic authorities’ alleged failure to carry out
rigorous scrutiny of the risk of him being subjected to ill-treatment in the
event of his extradition to Uzbekistan.
In this respect, the Court notes that it has
already examined that submission in the context of Article 3 of the Convention.
Having regard to its findings in paragraph122 above, the Court considers that
there is no need to examine this complaint separately on its merits (see, for a
similar approach, Gaforov v. Russia, no. 25404/09, § 144, 21 October 2010).
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that his arrest and
detention from21 May 2010 to 21 November 2011 had been in breach of
Article 5 § 1 of the Convention. It reads, in its relevant parts, 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
1. The applicant
In his submissions of 17 March 2011, the
applicant argued that his arrest and detention should have been carried out in
compliance with the requirements of Chapter 54 of the Russian Code of Criminal
Procedure. The applicant claimed that his arrest had been unlawful because at
the time of his arrest there had been no request from the Uzbek authorities to
the Russian authorities to assist them in determining the applicant’s
whereabouts (in Russia). Such a request had been necessary in order to comply
with Articles 6–8, 61 and 61-1 of the Minsk Convention. Furthermore, the documents
justifying the applicant’s arrest had contained contradictory information
concerning the charges against him.His detention had not been based, at the
time, on any assessment of the actual circumstances relating to him.
In his submissions made in January 2012, the
applicant furtherspecified that it had been contrary to Russian law for his
arrest and the initial period of his detention to have been authorised by a
Russian prosecutor rather than a court and that he should not have been kept in
detention for more than six months. Lastly, he argued that his detention had
not been justified,asthe extradition proceedings had not been and were not
being pursued with the requisite diligence, in particular after the Court’s
indication under Rule 39 of the Rules of Court.
2. The Government
The Government submitted that the Minsk
Convention required that the applicant’s arrest and detention be regulated by
the Russian CCrP, which included Chapters 13 and 54. Referring to a 1998
constitutional ruling, the Government argued that Article 466 § 1 of the CCrP
required any deprivation of liberty exceeding forty-eight hours after arrestto
be authorised by a court decision. Article 61 § 1 of the Minsk Convention
allowed detention before receipt of a formal extradition request, which had
been the case in respect of the applicant when a prosecutor had ordered his
detention.After receipt of such a request, the applicant’s situation had come
within the scope of Article 466 § 2 of the CCrP. His detention had thus been
sought before and authorised by a court.
The Government also submitted that Article 109
of the CCrP authorised up to eighteen months of detention for serious criminal
offences (which is a category of gravity between minor and particularly serious
offences). All detention ordered had indicated the authorised period of
detention. The applicant had failed to use the procedural means available to
appeal against decisions taken by a prosecutor or a court. An appeal court was
empowered to order release. The applicant’s detention after May 2011 had been
justified with reference to the Court’s indication under Rule 39 of the Rules
of Court. All detention decisions had been issued in the presence of various
lawyers appointed as defence counsel.
B. The Court’s assessment
1. Admissibility
(a) As regards legality of the applicant’s arrest and
detention
The applicant complained of the alleged
unlawfulness of his arrest and the initial period of his detention, which had
been authorised by a prosecutor. The Court observes that, in the absence of any
court decision to be taken into consideration in the chain of exhaustion of
domestic remedies, the violations complained of ended on 21 July 2010 when a
court issued a detention order. Even accepting that the related complaints were
first raised, in substance, before the Court at the earliest on 17 March 2011,
it still follows that these complaints have been introduced out of time and
must be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
In so far as the applicant’s
submissions relate to the legality of his subsequent detention on the basis of
detention orders issued by a court, neither before the domestic courts nor
before this Court did the applicant put forward any specificand convincing
arguments suggestingthat his detention after 21 July 2010 was in breach of
Article 5 § 1 of the Convention. It follows that this part of the
application is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
(b) As regards the length of the applicant’s
detention with a view to extradition and the authorities’ diligence in the
conduct of the extradition case
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring it inadmissible has been established.
Thus, it should be declared admissible.
2. Merits
The Court reiterates that Article 5 § 1
(f) of the Convention does not require that the detention of a person against
whom action is being taken with a view to deportation or extradition be
reasonably considered necessary, for example to prevent his committing an
offence or absconding. In this connection, Article 5 § 1 (f) provides a
different level of protection from Article 5 § 1 (c): all that is
required under sub-paragraph (f) is that “action is being taken with a view to
deportation or extradition”. It is therefore immaterial, for the purposes of
Article 5 § 1 (f), whether the underlying decision to extradite can be
justified under national or Convention law.
Deprivation of liberty under Article 5 § 1 (f) will
be acceptable only for as long as extradition proceedings are in progress. If
such proceedings are not conducted with due diligence, the detention will cease
to be permissible under Article 5 § 1 (f). In other words, the length of the
detention for this purpose should not exceed what is reasonably required (see Saadi
v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008).
It has not been substantiated, and the Court
does not consider, that there were any significant unjustified delays or
periods of inaction attributable to the State during the applicant’s detention
between May 2010 and March 2011.Indeed, it appears that the extradition and
related proceedings were “in progress” all this time.
As to the subsequent period of the applicant’s
detention, it is noted that the domestic proceedings which related to, or at
least had a bearing on, the extradition case were completed in March 2011. The
extradition order became enforceable. However, its enforcement has been
suspended since March 2011 on account of the Court’s indication under Rule 39
of the Rules of Court. So, the applicant remained for some eight months in
detention until his release in November 2011.
It is common ground between the parties that during
some eight months of the applicant’s detention between March and November
2011no procedural measures or alike were taken in relation to the extradition
case.
However, it is the Court’s well-established
case law that this period of detention should be distinguished from the earlier
period of the applicant’s detention (see Chahal,
cited above, § 114, and, recently, Al Hanchi v. Bosnia and
Herzegovina, no. 48205/09, §§
49-51, 15 November 2011). Indeed, during this most recent period of
detention the Government refrained from extraditing the applicant in compliance
with the request made by the Court under Rule 39 of the Rules of Court.So, the extradition proceedings were
thereby temporarily suspended pursuant to the request made by the Court and
were, nevertheless, in progress (see, for a similar approach,Al Hanchi, cited
above, §§ 49-51, and Al Husin v.
Bosnia and Herzegovina, no. 3727/08,
§§ 67-69, 7 February 2012, both concerning longer periods of detention, albeit,
in a deportation context).
Indeed, the Court reiterates that the
Contracting States are obliged under Article 34 of the Convention to comply
with interim measures indicated under Rule 39 of the Rules of Court (see Mamatkulov
and Askarov, cited above, §§ 99-129). However, the implementation of an
interim measure following an indication by the Court to a State Party that it should
not, until further notice, return an individual to a particular country does
not in itself have any bearing on whether the deprivation of liberty to which
that individual may be subjected complies with Article 5 § 1 (see Gebremedhin
[Gaberamadhien] v. France, no. 25389/05, § 74, ECHR 2007‑II). In
other words, the domestic authorities must still act in strict compliance with
domestic law (ibid, § 75).
In the present case,it has not been
substantiated before the Court, after having raised related complaints before
national courts, that the applicant’s detention between May and November 2011
was unlawful under Russian law (see also paragraph 133 above). The national
court extended the applicant’s detention with reference to the relevant legal
grounds in terms of Russian law, namely the risk that the applicant would flee
justice, if at large.Second, it should be taken into consideration that detention with a view to extradition in the
present case was subject to the maximum statutory eighteen-month period.
Indeed, at the expiry of such period, the applicant was released at the prosecutor’s
request. Lastly, there is no
indication that the authorities acted in bad faith, that the applicant was
detained in unsuitable conditions or that his detention was arbitrary for any
other reason (see Saadi,
cited above, §§ 67-74).
In view of the above considerations, the Court
concludes that there has been no violation of Article 5 § 1 of the Conventionin relation to the length of the applicant’s
detention with a view to extradition.
IV. ALLEGED VIOLATION OF ARTICLE 5§ 4 OF THE
CONVENTION
The applicant further complained that there had
been a violation of Article 5 § 4 of the Convention on account of impediments
to his receivinglegal assistance in the detention proceedings. Article 5 § 4 of
the Convention reads as follows:
“4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful...”
A. The parties’ submissions
The applicant complained that he had not been
provided with legal assistance after his arrest. Nor had he been able to choose
his lawyer at the time.Lawyer L., who had wished to representhim later on,hadnot
been able to access any documents which were relevant to the applicant’s
deprivation of liberty. L. had not been informed in advance of the date
and time of someof the detention hearings before the Krasnogorsk Town Court. As
a result, the applicant had been deprived of effective legal assistance. While
L. had been informed of two subsequent detention hearings, he had not been able
to participate in them due to the belated delivery of the notifications sent by
the Krasnogorsk Town Prosecutor’s Office (rather than by the Town Court)to his Moscow office.
The Government argued that the applicant had
been notified of his procedural rights and had been provided with legal
assistancefrom the time of his arrest. At all stages of theproceedings, the
applicant had been assisted or represented by lawyers B., Bu., P., S., M. or L.
B. The Court’s assessment
The Court reiterates that proceedings conducted
under Article 5 § 4 of the Convention should be adversarial and ensure
equality of arms (see, as a recent authority, Mooren
v. Germany [GC], no. 11364/03, § 124, 9 July 2009).
Although it is not always necessary that the procedure under
Article 5 § 4 be attended by the same guarantees as those
required under Article 6 § 1 of the Convention for criminal or civil
litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in
question (see Reinprecht
v. Austria, no. 67175/01, § 31, ECHR 2005-XII). The requirement
of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying
standard to be applied irrespective of the context, facts and circumstances
(see A.
and Others v. the United Kingdom [GC], no. 3455/05, § 203, 19
February 2009). The person concerned should have access to a court and the
opportunity to be heard either in person or, where necessary, through some form
of representation (see, among others, Niedbała v. Poland, no. 27915/95,
§ 66, 4 July 2000, and Megyeri v. Germany, 12 May 1992, § 22, Series A
no. 237‑A, concerning detention in the context of paragraph 1 (c) and (e)
of Article 5, respectively). Therefore, some form of adversarial
proceedings is required in cases concerning detention with a view to
extradition (see Sanchez-Reisse v. Switzerland, 21 October 1986, § 51,
Series A no. 107).
While the right to receive legal assistance, if
necessary, is implicit in the very notion of an adversarial procedure, this
right may be subject to certain limitations where free legal aid is concerned
and also where under national law it is for the courts to decide whether the
interests of justice require that the detainee be defended by counsel appointed
by them (see Prehn v. Germany (dec.), no. 40451/06, 24 August
2010).When appointing defence counsel, the national courts must certainly have
regard to the defendant’s wishes but these can be overridden when there are
relevant and sufficient grounds for holding that this is necessary in the
interests of justice (ibid.).
Turning to the present case, the applicant’s
complaint concerning legal assistance after his arrest in May 2010 was first
raised before the Court in March 2011. Leaving aside a possible waiver issue,
the Court observes that the situation complained of ended on 21 July 2010 when
the applicant was provided with legal assistance at a court hearing concerning
his detention. Assuming he had no remedies to exhaust, it follows that this
complaint has been introduced out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
In addition, without specifying the relevant
dates, the applicant alleged that he had been deprived of assistance by L. at a
number of court hearings concerning his detention. Even assuming that the
applicant did not have to raise this issue on appeal against the related
detention order(s) and that he has complied with the six-month rule, the
complaint should still be declared inadmissible as it transpires that the
national court took care to appoint a lawyer to assist or represent the
applicant at the detention hearings. There is no indication that the legal
assistance provided to the applicant by the lawyers appointed to represent him
was manifestly ineffective or otherwise in breach of Article 5 § 4 of the
Convention. The applicant has not substantiated any argument relating to the
allegedly non-adversarial nature of or unfairness in the detention proceedings.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6OF THE
CONVENTION
The applicant further complained that, if
extradited to Uzbekistan, he would not receive a fair trial there.
The Government contested that argument.
The Court notes that this complaint is linked
to the one examined under Article 3 of the Convention and must therefore
likewise be declared admissible.
Having regard to its finding under Article 3 (see
paragraph 122 above), the Court considers that it is not necessary to examine
whether, in this case, there would be a violation of Article 6 § 1 of the
Convention in the event of the applicant’s extradition to Uzbekistan.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that he had
not been provided with the services of an interpreter in 2010; that there had
been a delay in granting his lawyer access to the extradition file and in
examining his appeal against the detention order of 16 May 2011; and that the
wording of the extradition order had infringed the presumption of innocence.
The Court has examined the remaining complaints
as submitted by the applicant. In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that thispart of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
VII. 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 compensation in respect
of non-pecuniary damage, leaving the amount to the Court’s discretion.
The Government contested the claim.
The Court observes that no breach of Article 3
of the Convention has yet occurred in the present case. However, it has found
that the decision to extradite the applicant would, if implemented, give rise
to a violation of that provision. It considers that its finding regarding
Article 3 in itself amounts to adequate just satisfaction for the purposes of
Article 41 (see Yakubov, cited above, § 111).
B. Costs and expenses
The applicant also claimed EUR 50for postal expenses
incurred before the Court.
The Government contested this claim.
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, regardbeing had to the documents
in its possession and the above criteria, the Court grants the claim.
C. Default interest
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.
VIII. RULE 39 OF THE RULES OF COURT
The Court recalls 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 Courtmust remain in force until
the present judgment becomes final or until further order.
FOR THESE REASONS, THE COURT
1. Declaresunanimouslythe complaints
concerning the risk of the applicant’s ill-treatment, the length of his
detention with a view to extradition,the risk of unfair trial in Uzbekistan and
the lack of effective remediesin respect of the issue of the risk of
ill-treatmentadmissible and the remainder of the application inadmissible;
2. Holdsunanimously that the applicant’s
extradition to Uzbekistan would be in breach of Article 3 of the Convention;
3. Holds by six votes to one that there has
been no violation of Article 5 § 1 of the Convention in relation to the
length of the applicant’s detention with a view to extradition;
4. Holds unanimously that there is no need to
examine the complaint under Article 6 of the Convention;
5. Holds unanimously that there is no need to
examine the complaint under Article 13 of the Convention;
6. Holds unanimously
(a) that the finding regarding Article 3 of the
Convention in itself amounts to adequate just satisfaction for the purposes of
Article 41 of the Convention;
(b) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 50 (fifty
euros), plus any tax that may be chargeable to the applicant, in respect of
costs and expenses, to be converted into the currency
of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Decidesunanimously 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 until further
order.
Done in English, and notified in writing on 18 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Søren Nielsen NinaVajić
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Vajić is
annexed to this judgment.
S.N.
N.A.V.
PARTLY DISSENTING OPINION OF JUDGE VAJIĆ
I agree with the majority that the
applicant’s extradition to Uzbekistan would be in breach of Article 3 of the
Convention. However, I do not agree that in the present case there has been no
violation of Article 5 § 1 of the Convention in respect of the length of the
applicant’s detention with a view to extradition.
For eight months no procedural measures or similar were taken
in the applicant’s extradition case. It is true that during this time the
Government refrained from extraditing the applicant in compliance with the
request made by the Court under Rule 39 of the Rules of Court.
I certainly accept that the Contracting States are obliged
under Article 34 of the Convention to comply with interim measures indicated
under Rule 39 of the Rules of Court (see Mamatkulov and Askarov[GC],
nos. 46827/99 and 46951/99, §§ 99-129, ECHR 2005 I). However, the
implementation of an interim measure following an indication by the Court to a
State Party that it should not, until further notice, return an individual to a
particular country does not in itself have any bearing on whether the
deprivation of liberty to which that individual may be subjected complies with
Article 5 § 1 (see Gebremedhin [Gaberamadhien] v. France,
no. 25389/05, § 74, ECHR 2007‑II). In other words, the domestic
authorities must still act in strict compliance with domestic law (ibid., §
75).
Article 5 § 1 of the Convention requires that any deprivation
of liberty should be in keeping with the purpose of protecting the individual
from arbitrariness. It is a fundamental principle that no detention which is
arbitrary can be compatible with Article 5 § 1 and the notion of
“arbitrariness” in Article 5 § 1 extends beyond lack of conformity with
national law, so that a deprivation of liberty may be lawful in terms of
domestic law but still arbitrary and thus contrary to the Convention (see Saadi
v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008).Thus, as indicated
in the judgment, detention under Article 5 § 1 (f) of the Convention will be
acceptable only for as long as extradition proceedings are in progress. It is
clear, however, that in the present case those proceedings ended in March 2011
and that the applicant’s subsequent detention for eight months was not required
for those purposes. In my opinion, in these circumstances the length of the
period under consideration was excessive. I
therefore voted for a violation of Article 5 § 1 of the Conventionin respect of the length of the applicant’s
detention with a view to extradition.
