BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF SULTANOV v. RUSSIA
(Application
no. 15303/09)
JUDGMENT
STRASBOURG
4 November
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sultanov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1248/09) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Uzbek national, Mr Nabi Sultanov (“the
applicant”), on 20 March 2009.
- The
applicant was represented by lawyers of the
EHRAC/Memorial Human Rights Centre, an NGO with offices in London and
Moscow. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
- The
applicant alleged that his detention by the Russian authorities with
a view to extraditing him to Uzbekistan, where he faced politically
motivated persecution by the local authorities, gave rise to
violations of his rights under Articles 3, 5 and 6 of the Convention.
- On
20 March 2009 the President of the Chamber to which the case was
allocated decided, in the interests of the parties and of proper
conduct of the proceedings before the Court, to indicate to the
Government of Russia, under Rule 39 of the Rules of Court, that the
applicant should not be extradited to Uzbekistan until further
notice.
- On
1 October 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings in Uzbekistan
- The
applicant was born in Uzbekistan in 1979. In March 2008 he left
Uzbekistan and moved to Russia.
- On
4 June 2008 the Main Investigations Department of the Uzbek Ministry
of the Interior charged the applicant in absentia with
organisation of a criminal group, attempts to overthrow the State’s
constitutional order and dissemination of the views of a radical
extremist movement. The applicant’s name was put on the wanted
list.
- On
5 June 2008 Namangan Criminal Court authorised the applicant’s
arrest.
- On
9 July 2008 the Uzbek Prosecutor General’s Office requested the
Russian Prosecutor General’s Office to extradite the applicant
to Uzbekistan for prosecution.
B. Proceedings in Russia
1. Extradition proceedings
- On
18 September 2008 the Russian Prosecutor General’s Office
decided to extradite the applicant to Uzbekistan. The extradition
order stated, inter alia, the following:
“... the Main Investigations Department of the
Uzbek Ministry of the Interior is investigating a criminal case
against N.N. Sultanov ...
The charges against N.N. Sultanov state that between
2000 and 2008, in the Namangan region of Uzbekistan, with the aim of
overthrowing the State’s constitutional order, he organised a
criminal group... directed its units...actively participated in the
criminal activities of the supporters of an extremist religious
movement ... publicly called for the overthrow of the constitutional
order of the Republic of Uzbekistan by carrying out “jihad”
holy war and for the creation of an Islamic state ...
... The actions of N.N. Sultanov are punishable under
Russian criminal law and correspond to part 1 of Article 210
(organisation of a criminal group), Article 278 (actions aimed at
violent change of the constitutional order), part 1 of Article 280
(public calls for extremist activities) of the Russian Criminal Code;
the penalties envisaged under those Articles exceed one year of
deprivation of liberty. The limitation period for the above crimes
under Russian and Uzbek law has not expired ...”
- On
25 September 2008 the applicant was informed about the extradition
order. According to him, he signed the documents certifying that he
had been familiarised with the extradition order and refused to
appeal against it without being aware of the contents of the document
owing to his lack of Russian.
- On
10 November 2008 the applicant’s lawyer requested Moscow City
Court to reinstate the statutory time-limits for the appeal procedure
against the extradition order. On 20 November 2008 Moscow City Court
refused the request. The applicant appealed, and on 9 February 2009
the Russian Supreme Court granted his request and reinstated the
time-limits.
- On
17 March 2009 Moscow City Court rejected the applicant’s
complaint against the extradition order and upheld his extradition to
Uzbekistan.
- On
19 March 2009 the applicant appealed against this decision to the
Supreme Court of the Russian Federation.
- On 20 March 2009 the European
Court of Human Rights granted the applicant’s request for
application of interim measures under Rule 39 of the Rules of Court
to suspend his extradition to Uzbekistan.
- On
7 May 2009 the Supreme Court upheld the Moscow City Court
decision and the extradition order became final. Referring to the
applicant’s complaints that he risked ill-treatment and torture
in Uzbekistan, the court stated:
“... the [applicant’s] references to human
rights violations in Uzbekistan... are of a general nature and there
is no objective information in the case file indicating that these
methods [of ill-treatment] would be applied to N.N. Sultanov ...
... the initiator of the search provided certain
guarantees in respect of N.N. Sultanov. Failure to comply with
these guarantees would provide the authorities of the Russian
Federation with grounds to refuse future extradition requests [from
Uzbekistan] in respect of other persons ...”
2. The applicant’s detention pending extradition
and his applications for release
- On
17 June 2008 the applicant was detained at Perm-2 railway station.
- On
18 June 2008 the Perm transport prosecutor’s office decided to
arrest the applicant in accordance with the decision of Namangan
Criminal Court in Uzbekistan and placed him in pre-trial detention
facility no. 1 in Perm (SIZO-1). The decision did not provide
time-limits for the applicant’s detention.
- On
6 August 2008 the Perm transport prosecutor’s office again
issued a decision to place the applicant in custody pursuant to the
extradition order de facto extending the applicant’s
initial arrest of 17 June 2008. The decision did not provide
time-limits for the applicant’s detention.
- On
18 September 2008 the Russian Prosecutor General’s Office
decided to extradite the applicant to Uzbekistan.
- On
an unspecified date between August and November 2008 the applicant
was transferred from Perm to detention facility no. IZ-77/4 in
Moscow.
- On
21 January 2009 the applicant complained about his detention to
Babushkinskiy District Court in Moscow. The complaint was submitted
to the administration of the detention facility for further
transmission to the court on 26 January 2009 and registered with the
number C-12. However, on 16 June 2009 Babushkinskiy District Court
informed the applicant that they had not received this complaint.
- On
24 June 2009 the applicant complained to Tverskoy District Court in
Moscow that his detention pending extradition was unlawful. He stated
firstly that he had been detained pending extradition for more than a
year without any legal extension of the detention, secondly that he
had not had any opportunity to challenge the lawfulness of his
detention, in violation of Article 5 § 4 of the Convention, and
thirdly that the provisions of Russian criminal procedure legislation
concerning detention pending extradition did not meet the ‘quality
of law’ standard prescribed by Article 5 § 1(f) of
the Convention.
- On
21 July 2009 Tverskoy District Court rejected the applicant’s
complaint, stating the following:
“... Chapter 13 of the Code of Criminal Procedure
[concerning measures of restraint] regulates the procedure for the
extension of pre-trial detention only in respect of those suspects
and the accused against whom the Russian authorities have initiated
criminal proceedings ...
The procedure concerning the imposition of the measure
of restraint in respect of the applicant is regulated by Article 466
of the Code of Criminal Procedure, which does not provide for an
extension of detention with a view to extradition.
At the same time it should be noted that the maximum
term of detention of eighteen months, as prescribed by Article 109 of
the Criminal Procedure Code ... has not been violated ...
Therefore, the court finds that the applicant’s
complaint is unsubstantiated and should be rejected ...”
- The
applicant appealed against this decision to Moscow City Court. On 7
October 2009 the latter upheld the decision of 21 July 2009 and left
the applicant’s complaint that his detention was unlawful
unexamined.
- The
applicant further appealed to Moscow City Court through the
supervisory review procedure. On 17 November 2009 his appeal was
dismissed by the City Court as unsubstantiated.
- On
8 December 2009 the applicant complained to the Prosecutor General’s
Office and the Moscow Prosecutor that his detention was unlawful and
requested to be released. He stated that his detention had not been
extended by domestic courts and that the application of the interim
measures by the Court (see paragraph 15 above) could not serve as the
basis for his continued detention.
- On
8 December 2009 the applicant lodged a supervisory appeal with Moscow
City Court concerning unlawfulness and excessive length of his
detention. This appeal was dismissed on 9 February 2010.
- On
21 December 2009 the maximum eighteen-month
detention period laid down in Article 109 of the Russian Code of
Criminal Procedure expired, but the applicant remained in detention.
- On
23 April 2010 Babushkinskiy District Court rejected the prosecutor’s
request for the applicant’s house arrest.
- On
23 April 2010 the Babushkinskiy inter-district prosecutor’s
office ordered the applicant’s release from detention. On 26
April 2010 the prosecutor’s office ordered the applicant
to sign an undertaking not to leave the area.
3. The applicant’s requests for refugee status
and temporary asylum
- On
6 November 2008 the applicant lodged a request with the Moscow
Department of the Federal Migration Service (the FSM) for refugee
status in Russia. On 5 December 2008 he was interviewed in the
detention facility by an officer of the FMS, in the presence of his
lawyer.
- On
11 March 2009 the FMS refused the applicant’s request for
refugee status, stating “... there are no substantiated
concerns that he would become a victim of persecution in Uzbekistan”.
The applicant appealed against this refusal to Zamoskvoretskiy
District Court in Moscow.
- On
2 June 2009 Zamoskvoretskiy District Court upheld the refusal,
stating that the applicant had failed to provide sufficient evidence
that he risked ill-treatment if extradited to Uzbekistan, and that he
had applied for refugee status only after his arrest, which
demonstrated that he was trying to avoid lawful criminal prosecution
in Uzbekistan.
- The
applicant appealed to Moscow City Court. On 3 November 2009 the City
Court dismissed the appeal as unsubstantiated and upheld the decision
of 2 June 2009.
- On
18 January 2010 the applicant lodged a request with the FSM for
temporary asylum in Russia.
- On
3 March 2010 the Russian Department of the UN
High Commissioner for Refugees informed the FMS that the applicant’s
fear of politically motivated ill-treatment in Uzbekistan was
well-founded and that he was eligible for international protection
under their mandate.
- On
12 April 2010 the FMS refused the applicant’s request
for temporary asylum and informed the applicant about it on 16 April
2010 without providing a copy of this decision.
- On
30 April 2010 the applicant appealed against this refusal to the
Russian FMS. The proceedings are pending.
II. RELEVANT INTERNATIONAL AND
DOMESTIC LEGAL MATERIAL
A. Detention pending extradition and judicial review of
detention
1. The Russian Constitution
- The Constitution guarantees the right to liberty
(Article 22):
“1. Everyone has the right to liberty
and personal integrity.
2. Arrest, placement in custody and detention
are permitted only on the basis of a judicial decision. Prior to a
judicial decision, an individual may not be detained for longer than
forty-eight hours.”
2. The European Convention on Extradition
- Article 16 of the European Convention on Extradition
of 13 December 1957 (CETS no. 024), to which Russia is a party,
provides as follows:
“1. In case of urgency the competent
authorities of the requesting Party may request the provisional
arrest of the person sought. The competent authorities of the
requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if,
within eighteen days of arrest, the requested Party has not received
the request for extradition and the documents mentioned in Article
12. It shall not, in any event, exceed forty days from the date of
that arrest. The possibility of provisional release at any time is
not excluded, but the requested Party shall take any measures which
it considers necessary to prevent the escape of the person sought.”
3. The 1993 Minsk Convention
- The
CIS Convention on legal aid and legal relations in civil, family and
criminal cases (the 1993 Minsk Convention), to which both Russia and
Uzbekistan are parties, provides that a request for extradition must
be accompanied by a detention order (Article 58 § 2).
- A
person whose extradition is sought may be arrested before receipt of
a request for his or her extradition. In such cases a special request
for arrest, containing a reference to the detention order and
indicating that a request for extradition will follow, must be sent.
A person may also be arrested in the absence of such a request if
there are reasons to suspect that he or she has committed, in the
territory of the other Contracting Party, an offence entailing
extradition. The other Contracting Party must be immediately informed
of the arrest (Article 61).
- A
person arrested under Article 61 must be released if no request for
extradition is received within forty days of the arrest (Article 62 §
1).
4. The Code of Criminal Procedure
- Chapter 13 of the Russian Code of Criminal Procedure
(“Preventive measures”) governs the use of preventive
measures (меры пресечения),
which include, in particular, placement in custody. Custody may be
ordered by a court on an application by an investigator or a
prosecutor if a person is charged with an offence carrying a sentence
of at least two years’ imprisonment, provided that a less
restrictive preventive measure cannot be used (Article 108 §§
1 and 3). The period of detention pending investigation may not
exceed two months (Article 109 § 1). A judge may extend that
period to six months (Article 109 § 2). Further extensions to
twelve months, or in exceptional circumstances eighteen months, may
be granted only if the person is charged with serious or particularly
serious criminal offences (Article 109 § 3). No extension beyond
eighteen months is permissible and the detainee must be released
immediately (Article 109 § 4).
- Chapter 16 (“Complaints about acts and decisions
by courts and officials involved in criminal proceedings”)
provides for the judicial review of decisions and acts or failures to
act by an investigator or a prosecutor that are capable of adversely
affecting the constitutional rights or freedoms of parties to
criminal proceedings (Article 125 § 1). The court must examine
the complaint within five days of its receipt.
- Chapter 54 (“Extradition of a person for
criminal prosecution or execution of sentence”) regulates
extradition procedures. On receipt of a request for extradition not
accompanied by an arrest warrant issued by a foreign court, a
prosecutor must decide on the preventive measure to be applied to the
person whose extradition is sought. The measure must be applied in
accordance with the established procedure (Article 466 § 1). A
person who has been granted asylum in Russia because of possible
political persecution in the State seeking his extradition may not be
extradited to that State (Article 464 § 1 (2)).
- An extradition decision made by the Prosecutor General
may be challenged before a court. Issues of guilt or innocence are
not within the scope of judicial review, which is limited to an
assessment of whether the extradition order was made in accordance
with the procedure set out in the relevant international and domestic
law (Article 463 §§ 1 and 6).
5. The Code of Civil Procedure
- A person may apply for judicial review of decisions
and acts or failures to act by a State body or a State official that
are capable of violating his or her rights or freedoms, hindering the
exercise of his or her rights and freedoms, or imposing an obligation
or liability unlawfully (Articles 254 § 1 and 255). If the court
finds the application well-founded, it must order the State body or
State official concerned to remedy the violation or remove the
obstacle to the exercise of the rights and freedoms in question
(Article 258 § 1).
6. Case-law of the Constitutional Court
(a) Constitutional Court decision no.
292-O of 15 July 2003
- On 15 July 2003 the Constitutional Court issued
decision no. 292-O concerning a complaint by Mr Khudoyorov of ex
post facto extension of his “detention during judicial
proceedings” by the Vladimir Regional Court decision. It held
as follows:
“Article 255 § 3 of the Code of Criminal
Procedure of the Russian Federation provides that the [trial court]
may ... once six months has passed since the case was sent to it,
extend a defendant’s detention for successive periods of up to
three months. It does not contain, however, any provisions permitting
the courts to take a decision extending a defendant’s detention
once the previously authorised time limit has expired, in which
event the person is detained for a period without a judicial
decision. Nor do other rules of criminal procedure provide for such a
possibility. Moreover, Articles 10 § 2 and 109 § 4 of the
Code of Criminal Procedure expressly require the court, prosecutor,
investigator ... to immediately release anyone who is unlawfully held
in custody beyond the time-limit established in the Code. Such is
also the requirement of Article 5 §§ 3 and 4 of the
European Convention ... which is an integral part of the legal system
of the Russian Federation, pursuant to Article 15 § 4 of the
Russian Constitution ...”
(b) Constitutional Court decision no.
101-O of 4 April 2006
- Verifying
the compatibility of Article 466 § 1 of the CCP with the Russian
Constitution, the Constitutional Court reiterated its established
case-law to the effect that excessive or arbitrary detention,
unlimited in time and without appropriate review, was incompatible
with Article 22 of the Constitution and Article 14 § 3 of the
International Covenant on Civil and Political Rights in all cases,
including extradition proceedings.
- In the Constitutional Court’s view, the
guarantees of the right to liberty and personal integrity set out in
Article 22 and Chapter 2 of the Constitution, as well as the legal
norms laid down in Chapter 13 of the CCP on preventive measures, were
fully applicable to detention with a view to extradition.
Accordingly, Article 466 of the CCP did not allow the authorities to
apply a custodial measure without abiding by the procedure
established in the CCP, or in excess of the time-limits fixed
therein.
(c) Constitutional Court decision no.
158-O of 11 July 2006 on the Prosecutor General’s request for
clarification
- The
Prosecutor General asked the Constitutional Court for an official
clarification of its decision no. 101-O of 4 April 2006 (see above),
for the purpose, in particular, of elucidating the procedure for
extending a person’s detention with the aim of extradition.
- The
Constitutional Court dismissed the request on the ground that it was
not competent to indicate specific criminal-law provisions governing
the procedure and time-limits on the keeping of a person in custody
with the aim of extradition. That was a matter for the courts of
general jurisdiction.
(d) Constitutional Court decision no.
333-O-P of 1 March 2007
- In
this decision the Constitutional Court reiterated that Article 466 of
the CCP did not imply that detention of a person on the basis of an
extradition request did not have to comply with the terms and
time-limits provided for in the legislation on criminal procedure.
(e) Ruling of the Plenary Session of the
Supreme Court of the Russian Federation no. 22 of 29 October 2009
- In
this ruling the Supreme Court reiterated that the arrest and
detention of a person with the aim of extraditing him or her under
Article 466 of the CCP should comply with the requirements of
Article 108 of the CCP, and that detention pending extradition could
be extended only in compliance with the requirements of Article 109
of the CCP.
B. Relevant documents concerning the use of diplomatic
assurances and the situation in Uzbekistan
- UN General Assembly resolution 62/148 of 18 December
2007 (“Torture and other cruel, inhuman or degrading treatment
or punishment” (UN Doc.:A/RES/62/148)) reads as follows:
“The General Assembly ...
12. Urges States not to expel, return
(refouler), extradite or in any other way transfer a person to
another State where there are substantial grounds for believing that
the person would be in danger of being subjected to torture, and
recognizes that diplomatic assurances, where used, do not release
States from their obligations under international human rights,
humanitarian and refugee law, in particular the principle of
non-refoulement ...”
- In
his interim report submitted in accordance with Assembly resolution
59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of
the Commission on Human Rights on torture and other cruel, inhuman or
degrading treatment or punishment, Manfred Nowak, reached the
following conclusions:
“51. It is the view of the Special
Rapporteur that diplomatic assurances are unreliable and ineffective
in the protection against torture and ill-treatment: such assurances
are sought usually from States where the practice of torture is
systematic; post-return monitoring mechanisms have proven to be no
guarantee against torture; diplomatic assurances are not legally
binding, therefore they carry no legal effect and no accountability
if breached; and the person whom the assurances aim to protect has no
recourse if the assurances are violated. The Special Rapporteur is
therefore of the opinion that States cannot resort to diplomatic
assurances as a safeguard against torture and ill-treatment where
there are substantial grounds for believing that a person would be in
danger of being subjected to torture or ill treatment upon
return.
52. The Special Rapporteur calls on
Governments to observe the principle of non refoulement
scrupulously and not expel any person to frontiers or territories
where they might run the risk of human rights violations, regardless
of whether they have officially been recognised as refugees.”
- Specifically referring to the situation regarding
torture in Uzbekistan and returns to torture effected in reliance
upon diplomatic assurances from the Uzbek authorities, the UN Special
Rapporteur on Torture stated to the 2nd Session of the UN Human
Rights Council on 20 September 2006:
“The practice of torture in Uzbekistan is
systematic, as indicated in the report of my predecessor Theo van
Boven’s visit to the country in 2002. Lending support to this
finding, my mandate continues to receive serious allegations of
torture by Uzbek law enforcement officials... Moreover, with respect
to the events in May 2005 in Andijan, the UN High Commissioner for
Human Rights reported that there is strong, consistent and credible
testimony to the effect that Uzbek military and security forces
committed grave human rights violations there. The fact that the
Government has rejected an international inquiry into the Andijan
events, independent scrutiny of the related proceedings, and that
there is no internationally accepted account of the events, is deeply
worrying. Against such significant, serious and credible evidence of
systematic torture by law enforcement officials in Uzbekistan, I
continue to find myself appealing to Governments to refrain from
transferring persons to Uzbekistan. The prohibition of torture is
absolute, and States risk violating this prohibition - their
obligations under international law - by transferring persons to
countries where they may be at risk of torture. I reiterate that
diplomatic assurances are not legally binding, undermine existing
obligations of States to prohibit torture, are ineffective and
unreliable in ensuring the protection of returned persons, and
therefore shall not be resorted to by States.”
- Further
referring to the situation regarding torture in Uzbekistan, the UN
Special Rapporteur on Torture stated to the 3rd Session of the
UN Human Rights Council on 18 September 2008:
“741. The Special Rapporteur ... stressed that he
continued to receive serious allegations of torture by Uzbek law
enforcement officials...
743. Moreover, with respect to the events in May 2005 in
Andijan, the UN High Commissioner for Human Rights reported that
there is strong, consistent and credible testimony to the effect that
Uzbek military and security forces committed grave human rights
violations there. The fact that the Government has rejected an
international inquiry into the Andijan events, and any independent
scrutiny of the related proceedings, and that there is no
internationally accepted account of the events, is deeply worrying.
Even more so, given that no independent monitoring of human rights is
currently being conducted.
744. In light of the foregoing, there is
little evidence available, including from the Government that would
dispel or otherwise persuade the Special Rapporteur that the practice
of torture has significantly improved since the visit which took
place in 2002...”
- The
UN High Commissioner for Refugees’ Note on Diplomatic
Assurances and International Refugee Protection published on 10
August 2006 reads as follows:
22. In general, assessing the suitability of
diplomatic assurances is relatively straightforward where they are
intended to ensure that the individual concerned will not be
subjected to capital punishment or certain violations of fair trial
rights as a consequence of extradition. In such cases, the wanted
person is transferred to a formal process, and the requesting State’s
compliance with the assurances can be monitored. While there is no
effective remedy for the requested State or the surrendered person if
the assurances are not observed, non-compliance can be readily
identified and would need to be taken into account when evaluating
the reliability of such assurances in any future cases.
23. The situation is different where the
individual concerned risks being subjected to torture or other cruel,
inhuman or degrading treatment in the receiving State upon removal.
It has been noted that ‘unlike assurances on the use of the
death penalty or trial by a military court, which are readily
verifiable, assurances against torture and other abuse require
constant vigilance by competent and independent personnel’. The
Supreme Court of Canada addressed the issue in its decision in Suresh
v. Canada (Minister of Citizenship and Immigration),
contrasting assurances in cases of a risk of torture with those given
where the person extradited may face the death penalty, and
signalling
‘... the difficulty in relying too heavily on
assurances by a state that it will refrain from torture in the future
when it has engaged in illegal torture or allowed others to do so on
its territory in the past. This difficulty becomes acute in cases
where torture is inflicted not only with the collusion but through
the impotence of the state in controlling the behaviour of its
officials. Hence the need to distinguish between assurances regarding
the death penalty and assurances regarding torture. The former are
easier to monitor and generally more reliable than the latter.’
24. In his report to the UN General Assembly
of 1 September 2004, the special Rapporteur of the UN Commission on
Human Rights on torture and other cruel, inhuman or degrading
treatment or punishment examined the question of diplomatic
assurances in light of the non-refoulement obligations
inherent in the absolute and non-derogable prohibition of torture and
other forms of ill-treatment. Noting that in determining whether
there are substantial grounds for believing that a person would be in
danger of being subjected to torture, all relevant considerations
must be taken into account, the Special Rapporteur expressed the view
that:
‘in circumstances where there is a consistent
pattern of gross, flagrant or mass violations of human rights, or of
systematic practice of torture, the principle of non refoulement
must be strictly observed and diplomatic assurances should not be
resorted to.’”
- United
States Department of State, 2009 Country Reports on Human Rights
Practices – Uzbekistan, 11 March 2010.
“... Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
Although the constitution and law prohibit such
practices, law enforcement and security officers routinely beat and
otherwise mistreated detainees to obtain confessions or incriminating
information. Torture and abuse were common in prisons, pretrial
facilities, and local police and security service precincts.
Prisoners were subjected to extreme temperatures. Observers reported
several cases of medical abuse, and one known person remained in
forced psychiatric treatment.
...
Authorities reportedly gave harsher than normal
treatment to individuals suspected of extreme Islamist political
sympathies, notably pretrial detainees who were alleged members of
banned extremist political organizations Hizb ut-Tahrir (HT) or Nur.
Local human rights workers reported that authorities often paid or
otherwise induced common criminals to beat suspected extremists and
others who opposed the government. Two human rights defenders who
were arrested reported beatings in pretrial detention facilities.
There were reports of politically motivated medical
abuse. Victims could request through legal counsel that their cases
be reviewed by an expert medical board. In practice, however, such
bodies generally supported the decisions of law enforcement
authorities.
...
Prison and Detention Center Conditions
Prison conditions remained poor and in some cases life
threatening. There continued to be reports of severe abuse,
overcrowding, and shortages of food and medicine. Tuberculosis and
hepatitis were endemic in the prisons, making even short periods of
incarceration potentially life-threatening. Family members frequently
reported that officials stole food and medicine that were intended
for prisoners.
There were reports that authorities did not release
prisoners, especially those convicted of religious extremism, at the
end of their terms. Instead, prison authorities contrived to extend
inmates’ terms by accusing them of additional crimes or
claiming the prisoners represented a continuing danger to society.
These accusations were not subject to judicial review.”
- The European Committee for the Prevention of Torture
(“the CPT”), in its 15th General Report of 22 September
2005 on its activities covering the period from 1 August 2004 to 31
July 2005, expressed concern about reliance on diplomatic assurances
in the light of the absolute prohibition on torture:
“38. Reference was made in the Preface
to the potential tension between a State’s obligation to
protect its citizens against terrorist acts and the need to uphold
fundamental values. This is well illustrated by the current
controversy over the use of ‘diplomatic assurances’ in
the context of deportation procedures. The prohibition of torture and
inhuman or degrading treatment encompasses the obligation not to send
a person to a country where there are substantial grounds for
believing that he or she would run a real risk of being subjected to
such methods. In order to avoid such a risk in given cases, certain
States have chosen the route of seeking assurances from the country
of destination that the person concerned will not be ill-treated.
This practice is far from new, but has come under the spotlight in
recent years as States have increasingly sought to remove from their
territory persons deemed to endanger national security. Fears are
growing that the use of diplomatic assurances is in fact
circumventing the prohibition of torture and ill-treatment.
39. The seeking of diplomatic assurances from
countries with a poor overall record in relation to torture and
ill-treatment is giving rise to particular concern. It does not
necessarily follow from such a record that someone whose deportation
is envisaged personally runs a real risk of being ill-treated in the
country concerned; the specific circumstances of each case have to be
taken into account when making that assessment. However, if in fact
there would appear to be a risk of ill-treatment, can diplomatic
assurances received from the authorities of a country where torture
and ill-treatment is widely practised ever offer sufficient
protection against that risk? It has been advanced with some cogency
that even assuming those authorities do exercise effective control
over the agencies that might take the person concerned into their
custody (which may not always be the case), there can be no guarantee
that assurances given will be respected in practice. If these
countries fail to respect their obligations under international human
rights treaties ratified by them, so the argument runs, why should
one be confident that they will respect assurances given on a
bilateral basis in a particular case?
40. In response, it has been argued that
mechanisms can be devised for the post-return monitoring of the
treatment of a person deported, in the event of his/her being
detained. While the CPT retains an open mind on this subject, it has
yet to see convincing proposals for an effective and workable
mechanism. To have any chance of being effective, such a mechanism
would certainly need to incorporate some key guarantees, including
the right of independent and suitably qualified persons to visit the
individual concerned at any time, without prior notice, and to
interview him/her in private in a place of their choosing. The
mechanism would also have to offer means of ensuring that immediate
remedial action is taken, in the event of it coming to light that
assurances given were not being respected.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The applicant complained that extradition
to Uzbekistan would expose him to a real risk of torture and
ill-treatment, prohibited by Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government submitted that the allegation that the applicant would
suffer political persecution had been checked by the Russian courts
when examining his appeals against the extradition order and had been
rejected as unfounded. The Russian courts had relied on the statement
from the Uzbek authorities that there would be no risk of
ill treatment for the applicant if he were extradited to
Uzbekistan. With reference to assurances from their Uzbek
counterparts the Government argued that the applicant would not be
subjected to ill-treatment or punishment contrary to Article 3 of the
Convention.
- The
applicant maintained that he had argued before the Russian courts
that there was a real risk that he would be ill-treated and
persecuted politically in Uzbekistan. He had submitted reports on
Uzbekistan by the UN institutions and international NGOs, confirming
that torture was widespread in detention facilities and that this
information had not been properly assessed by the Russian
authorities. He pointed out that the courts had rejected his
arguments without giving any reasons other than the reference to the
assurances given by the Uzbek authorities. Finally, he referred to a
number of cases examined by the Court in which it had been
established that extradition to Uzbekistan of a person sought for
political crimes would constitute a violation of Article 3.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- For
a summary of the relevant general principles emerging from the
Court’s case-law see Mamatkulov and Askarov v. Turkey ([GC],
nos. 46827/99 and 46951/99, §§ 66-70, ECHR 2005 I).
- From the materials submitted by the parties it follows
that the applicant was arrested in Russia and subsequently detained
at the request of the Uzbek authorities, who suspected him of a
number of crimes, including an attempt to overthrow constitutional
order and dissemination of the views of a radical extremist movement.
The Russian authorities commenced extradition proceedings against
him. Throughout the proceedings the applicant claimed that his
extradition to Uzbekistan would expose him to danger of
ill-treatment. He also lodged an application for refugee status,
reiterating his fears of torture and persecution for political
motives. He supported his submissions with reports prepared by UN
institutions and international NGOs describing the ill-treatment of
detainees in Uzbekistan. The Russian authorities rejected his
application for refugee status and ordered his extradition to
Uzbekistan.
- The
Court’s task is to establish whether there is a real risk of
ill treatment in the event of the applicant’s extradition
to Uzbekistan. Since he has not yet been extradited, owing to the
application by the Court of an interim measure under Rule 39 of the
Rules of Court, the material date for the assessment of that risk is
that of the Court’s consideration of the case. It follows that,
although the historical position is of interest in so far as it may
shed light on the current situation and its likely evolution, it is
the present conditions which are decisive (see Chahal v. the
United Kingdom, 15 November 1996, Reports of Judgments
and Decisions 1996-V, § 86).
- As
to the applicant’s allegation that detainees suffer
ill-treatment in Uzbekistan, the Court has recently acknowledged that
this general problem still persists in the country (see, for example,
Ismoilov and Others v. Russia, no. 2947/06, §§
120-121, 24 April 2008, and Muminov v. Russia,
no. 42502/06, §§ 93-96, 11 December 2008). No
concrete evidence has been produced to demonstrate any fundamental
improvement in this area in this country for several years. Given
these circumstances, the Court considers that ill-treatment of
detainees is a pervasive and enduring problem in Uzbekistan.
- As
to the applicant’s personal situation, the Court observes that
he was charged with politically motivated crimes. Given that an
arrest warrant was issued in respect of the applicant, it is most
likely that he would be placed in custody directly after his
extradition and would therefore run a serious risk of ill-treatment.
- As
to the Government’s argument that assurances were obtained from
the Uzbek authorities (see paragraph 16 above), it should be pointed
out that even if the Uzbek authorities had given the diplomatic
assurances requested by Russia, which were not submitted to the
Court, that would not have absolved the Court from the obligation to
examine whether such assurances provided, in practical terms, a
sufficient guarantee that the applicant would be protected against
the risk of treatment prohibited by the Convention. The weight to be
given to assurances from the receiving State depends, in each case,
on the circumstances prevailing at the material time (see Saadi v.
Italy [GC], no. 37201/06, § 148, ECHR 2008-...). Given that
the practice of torture in Uzbekistan is described by reputable
international sources as systematic (see paragraphs 59, 60 and 62
above), the Court is not persuaded that assurances from the Uzbek
authorities offer a reliable guarantee against the risk of
ill treatment.
- Accordingly, the applicant’s forcible return to
Uzbekistan would give rise to a violation of Article 3 as he would
face a serious risk of being subjected to torture or inhuman or
degrading treatment there.
II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1
AND 4 OF THE CONVENTION
- The applicant complained under Article 5 § 1 (f)
of the Convention that his detention pending extradition had been
unlawful and indefinite in its duration, in violation of the relevant
provisions of the domestic law. The relevant parts of Article 5 §
1 (f) read as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
- He
also complained under Article 5 § 4 of the Convention that the
domestic courts had failed to review the lawfulness of his detention.
Article 5 § 4 of the Convention reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. The parties’ submissions
- The
Government insisted that the applicant’s detention pending
extradition had been lawful as it had been based on the Namangan
Criminal Court decision of 5 June 2008, and that it fully complied
with the provisions of Article 466 of the Criminal Procedure Code.
- The
Government contended that the applicant’s complaint concerning
the alleged failure of the domestic courts to review the lawfulness
of his detention was manifestly ill-founded as he had challenged the
lawfulness of his detention by unsuccessfully complaining to Tverskoy
District Court and Moscow City Court.
- The
applicant disagreed with the Government. He submitted that neither of
the extension orders of 18 June and 6 August 2008 had provided any
time-limits for his detention and that the length of his detention
was excessive, in violation of all relevant provisions of the Russian
criminal procedure regulations.
- The
applicant further submitted that Tverskoy District Court had not
reviewed the lawfulness of his detention by failing to recognise him
as a party to any relevant criminal proceedings (see paragraph 24
above).
B. The Court’s assessment
1. Admissibility
- The
Court notes that the applicant’s complaints under Article 5 §§
1 and 4 are not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and are not inadmissible on any other
grounds. They must therefore be declared admissible.
2. Merits
(a) Article 5 § 1 of
the Convention
- It
is common ground between the parties that the applicant was detained
as a person “against whom action is being taken with a view to
deportation or extradition” and that his detention fell under
Article 5 § 1 (f). The parties dispute, however, whether this
detention was “lawful” within the meaning of Article 5 §
1 of the Convention.
- The
Court observes that the applicant was detained in Russia under an
arrest warrant issued by an Uzbek court. His detention was initially
authorised by the Perm transport prosecutor’s office on 18 June
and subsequently on 6 August 2008. Neither of the decisions provided
time-limits for the applicant’s detention.
- As
for the Government’s reference that the applicant’s
detention with a view to extradition to Uzbekistan had complied with
the requirements of Article 466 of the Criminal Procedure Code,
the Court notes that according to the decisions of the Constitutional
Court no. 158-O of 11 July 2006 and no. 333-O-P of 1 March
2007 and the Ruling of the Plenary Session of the Supreme Court of
the Russian Federation no. 22 of 29 October 2009, when dealing with
matters concerning detention pending extradition Russian courts
should comply with the requirements of Article 108 of the CCP
and that detention with a view to extradition could be extended only
in compliance with the requirements of Article 109 of the CCP (see
paragraphs 53-56 above).
- In
a number of its recent judgments the Court has already found that the
provisions of Russian law governing detention of persons with a view
to extradition were neither precise nor foreseeable in their
application and fell short of the “quality of law”
standard required under the Convention (see, for example, Nasrulloyev
v. Russia, no. 656/06, § 72, 11 October 2007; Ismoilov
and Others, cited above, § 142; Muminov,
cited above, § 122; and Khudyakova v. Russia, no.
13476/04, § 73, 8 January 2009).
- The
Court upholds the findings made in the above-mentioned cases and
finds that, in spite of the Government’s references to the
contrary, the absence of clear legal provisions establishing the
procedure for ordering and extending detention with a view to
extradition and setting time-limits for such detention, the
deprivation of liberty to which the applicant was subjected was not
circumscribed by adequate safeguards against arbitrariness. In
particular, the Court observes that neither of the detention orders
to which the applicant referred set any time-limit for his detention
(see paragraphs 18 and 19 above). Under the provisions governing the
general terms of detention (Article 108 of the CCP), the time-limit
for detention pending investigation was fixed at two months. A judge
could extend that period to up to six months. Further extensions
could only be granted by a judge if the person was charged with
serious or particularly serious criminal offences. However, upon the
expiry of the maximum initial detention period of two months (Article
109 § 1 of the CCP), no extension was granted by a court in the
present case. The applicant was detained pending extradition from 17
June 2008 until 23 April 2010, that is for more than twenty-two
months. During that period neither any decisions concerning his
detention were taken by the prosecutor’s office nor were any
requests for extension of his detention lodged with domestic courts.
Thus, the national system failed to protect the applicant from
arbitrary detention, and his detention cannot be considered “lawful”
for the purposes of Article 5 § 1 of the Convention.
- In
view of the above, the Court finds that the applicant’s
detention during the period in question was unlawful and arbitrary,
in violation of Article 5 § 1.
(b) Article 5 § 4 of the Convention
- The Court reiterates that the purpose of Article 5 §
4 is to assure to persons who are arrested and detained the right to
judicial supervision of the lawfulness of the measure to which they
are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and
Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A
remedy must be made available during a person’s detention to
allow that person to obtain speedy judicial review of the lawfulness
of the detention, capable of leading, where appropriate, to his or
her release. The existence of the remedy required by Article 5 §
4 must be sufficiently certain, not only in theory but also in
practice, failing which it will lack the accessibility and
effectiveness required for the purposes of that provision (see,
mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, §
66 in fine, 24 March 2005, and Vachev v. Bulgaria, no.
42987/98, § 71, ECHR 2004-VIII (extracts)). The accessibility of
a remedy implies, inter alia, that the circumstances
voluntarily created by the authorities must be such as to afford
applicants a realistic possibility of using the remedy (see, mutatis
mutandis, Čonka, cited above, §§ 46 and
55).
- The
Court is not persuaded by the Government’s argument that the
applicant had obtained judicial review of his detention by
complaining on 24 June 2009 that his detention was unlawful and he
was able to obtain judicial review (see paragraph 23 above). The
applicant sought to argue before the courts that his detention had
ceased to be lawful after the expiry of the time-limit established by
Article 109 of the Code of Criminal Procedure. By virtue of Article 5
§ 4 he was entitled to apply to a “court” having
jurisdiction to decide “speedily” whether or not his
deprivation of liberty had become “unlawful” in the light
of new factors which emerged subsequently to the decision on their
initial placement in custody (see, mutadis mutandis, Weeks
v. the United Kingdom, 2 March 1987, §§ 55-59, Series A
no. 114).
- The
applicant’s complaint concerning the review of his detention
was rejected by the domestic courts as incompatible with Chapter 13
of the Criminal Procedure Code, which provided for judicial review of
complaints against measures of restraint conferring the standing to
bring such a complaint solely to “the suspects and the accused
against whom the Russian authorities initiated criminal proceedings”.
Tverskoy District Court refused to recognise the applicant’s
position as a party to criminal proceedings on the ground that there
was no criminal case against him in Russia and that the maximum terms
of his detention pending extradition had not expired (see paragraph
24 above).
- The
Court notes that in their observations the Government did not suggest
any avenues for the judicial examination of the applicant’s
requests for the review of his detention other than vaguely referring
to Chapter 16 of the Code of Criminal Procedure which regulated
judicial complaints by parties to the criminal proceedings against
unlawful actions of officials (see paragraph 46 above). However, in
this regard Court would like to stress, leaving aside the vagueness
of the Government’s reference to these provisions, that it has
already found in a number of cases that Article 125 of the Code of
Criminal Procedure cannot be considered as providing an avenue for
judicial complaints by persons detained pending extradition (see
Nasrulloyev, cited above, §§ 88-89, and
Ryabikin v. Russia, no. 8320/04, § 139, 19 June
2008). In these cases the applicants were in similar situations, and
it was established that they had no formal status under national
criminal law because there was no criminal case against them in
Russia, and they could not therefore have judicial review of the
lawfulness of their detention pending extradition.
- It
follows that throughout the term of the applicant’s detention
he did not have at his disposal any procedure through which the
lawfulness of his detention could have been examined by a court.
There has therefore been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant alleged that the wording of the extradition decision of 18
September 2008 taken by the Russian Prosecutor General’s Office
and the District Court’s refusal of 23 April 2010 to impose
house arrest on him violated the presumption of his innocence.
- The
Government contested that argument.
- The
Court notes that the decision of 18 September 2008 to extradite the
applicant and the court decision of 23 April 2010 clearly referred to
the documents submitted by the Uzbek authorities by which he had been
charged with the imputed offences and it was construed so as to
describe the charges pending against the applicant in Uzbekistan (see
paragraph 10 above). In such circumstances the Court does not
consider that the statements by the Russian prosecutor’s office
and the District Court amounted to a declaration of the applicant’s
guilt, but rather described the “state of suspicion”
which had served as the basis for the extradition request and the
subsequent decision to extradite him (in contrast to Ismoilov,
cited above, § 168; see also Kolesnik v.
Russia, no. 26876/08, § 92,
17 June 2010 (not yet final)).
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. 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 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that the amount claimed was excessive and stated
that finding a violation of the Convention would be an adequate just
satisfaction in the applicant’s case.
- The
Court, making an assessment on an equitable basis, awards EUR 15,000
to the applicant in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- Relying
on fee agreements and lawyers’ time sheets, the applicant
claimed 5,137 pounds sterling (GBP)
(approximately EUR 6,220) for the work of London-based lawyers Mr W.
Bowring and Ms J. Evans together with administrative and translation
costs, and EUR 1,200 for the work of Ms E. Ryabinina
as his representative before the domestic authorities and the Court
and 90,000 Russian roubles (RUB, approximately
EUR 2,360) for the work of Mr A. Gaytayev and Ms R. Magomedova as his
representatives before the domestic authorities. The total amount
claimed amounted to EUR 9,780.
- The
Government did not dispute the justification
for the amounts claimed but stated that they were excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 7,500 covering costs
under all heads, plus any tax that may be chargeable to the applicant
on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 3 and 5
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that in the event of the extradition order
against the applicant being enforced, there would be a violation of
Article 3 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention:
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii)
EUR 7,500 (seven thousand five hundred euros) plus any tax that may
be chargeable to the applicant, for costs and expenses, to be
converted into pounds sterling at the
rate applicable at the date of settlement and paid into the bank
account in London indicated by the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
