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FIRST
SECTION
CASE OF SHARIPOV v. RUSSIA
(Application
no. 18414/10)
JUDGMENT
STRASBOURG
11 October 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sharipov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18414/10) 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 a Kazakh national, Mr Timur Malikovich Sharipov
(“the applicant”), on 4 April 2010.
- The
applicant was represented by Mr K.I. Terekhov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, the Representative of the Russian
Federation at the European Court of Human Rights.
- On
8 April 2010 the President of the First Section indicated to the
Government that the applicant should not be extradited to Kazakhstan
until further notice (Rule 39 of the Rules of Court). He granted
priority to the application on the same date (Rule 41 of the Rules of
Court).
- On
23 April 2010 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- The
applicant complained under Article 3 of the Convention that he faced
a risk of ill-treatment, including lack of adequate medical
assistance, in the event of his extradition to Kazakhstan.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Kaluga.
- The
applicant submitted two medical documents issued on 18 December
2000 and 27 March 2002 in Kazakhstan, stating that he was suffering
from non-osteogenic fibroma of the bones, a condition causing
tumours.
- On
16 November 2006 the Almaty Department for Economic Crimes and
Corruption of the Republic of Kazakhstan launched a criminal case
against the applicant for fraud.
- By
a decision of 7 February 2007 the authorities issued an arrest
warrant in respect of the applicant, which was authorised by the
prosecutor on 7 March 2007.
- On
16 February 2007 the applicant was charged with fraud, and on 4 April
2007 he was placed on the international wanted list.
- In
April or May 2007 the applicant moved to Russia.
A. The applicant’s detention and ensuing
extradition proceedings
- On
9 June 2009 the applicant was detained as a wanted person in Kaluga.
- On
10 June 2009 he was questioned by the prosecutor’s office of
the Kaluga Region. The applicant stated that he had arrived in Russia
in September 2007 as a visitor and had subsequently learned of the
criminal proceedings initiated against him in Kazakhstan. He had
decided not to return to Kazakhstan to avoid criminal prosecution.
According to the Government, the applicant had not indicated any fear
of ill-treatment or torture in Kazakhstan and had assumed that he was
not a victim of political persecution. The Government did not provide
a copy of the record of the interview.
- By
a decision of 10 June 2009 the Kaluga District Court, Kaluga Region,
remanded the applicant in custody pending extradition. Subsequently,
the detention period was extended on several occasions.
- On
16 July 2009 the Prosecutor General’s office of the Republic of
Kazakhstan requested the applicant’s extradition pending
criminal charges against him. The request contained assurances that
the applicant would not be extradited to a third state without the
consent of the Russian Federation, nor would he be held criminally
liable for a different crime committed before his extradition, that
upon termination of the trial proceedings and completion of any
criminal sentence the applicant would be free to leave Kazakhstan and
that the charges against the applicant were of a common criminal
nature and he would not be discriminated against on any ground.
- On
30 December 2009 the Russian Prosecutor General’s Office
ordered the applicant’s extradition.
- On
an unspecified date the prosecutor’s office of the Kaluga
Region investigated the applicant’s allegations of lack of
proper medical treatment while in detention. In its conclusion issued
on 14 January 2010 it stated that during his detention in Russia the
applicant had been examined by medical professionals on numerous
occasions, including in connection with his tumour condition. There
had been no deterioration in his condition during the detention, and
the medical documents supplied had served as proof that the necessary
medical treatment would be available to the applicant in Kazakhstan.
- On
29 January 2010 the applicant’s representative challenged the
extradition order.
- On
19 February 2010 the Prosecutor General’s office of Kazakhstan
submitted an additional letter to the Prosecutor General’s
office of the Russian Federation, containing further assurances in
respect of the applicant. In particular, it referred to the
ratification by Kazakhstan on 24 April 2005 of the United
Nations International Covenant on Civil and Political Rights,
prohibiting, among other things, torture, inhuman and degrading
treatment and punishment. The author of the letter pledged that,
irrespective of the fact that Kazakhstan was not a party to the
European Convention on Human Rights, it would ensure the rights
guaranteed to the applicant by Articles 2, 3, 5, 6, 7, 13 and 14 of
the Convention. Finally, the letter assured that the applicant would
be detained in compliance with the Detention Act of 30 March 1999 and
would be provided with medical aid, if necessary.
- On
24 February 2010 the Kaluga Regional Court rejected the applicant’s
complaint against the extradition order. It noted, inter alia,
that the applicant’s extradition would not violate the European
Convention, as the applicant was being prosecuted for a common crime
and there was nothing to suggest that he would be subject to torture,
inhuman treatment or lack of adequate medical treatment in
Kazakhstan. It further considered that none of the medical documents
provided demonstrated that the applicant had an illness which
precluded him from being detained or extradited. It also relied on
the assurances given by the Prosecutor General’s Office of
Kazakhstan.
- By
a decision of 22 April 2010 the Supreme Court of Russia upheld that
decision on appeal. The appeal decision essentially repeated the
reasoning of the lower court.
- On
7 April 2010 the President of the Chamber to which the case had been
allocated decided, in the interests of the parties and the proper
conduct of the proceedings before the Court, to indicate to the
Russian Government, under Rule 39 of the Rules of Court, that the
applicant should not be extradited to Kazakhstan for the duration of
the proceedings before the Court. The case was also granted priority
under Rule 41 of the Rules of Court.
B. The applications for refugee status, citizenship and
asylum
- On
18 August 2009 the Federal Migration Service office of the Kaluga
Region rejected the applicant’s application for refugee status
after analysing his arguments in accordance with the Refugees Act and
concluding that the applicant did not have any grounds to fear
persecution if he returned to Kazakhstan. By a decision of 10
December 2009 the Kaluga Regional Court upheld this decision on
appeal in final instance.
- On
4 December 2009 the same office refused to accept the applicant’s
application for Russian citizenship, referring to the criminal
charges against him in Kazakhstan.
- Finally,
on 18 January 2010 the same office refused the applicant’s
request for asylum in Russia. On 1 April 2010 the Kaluga Regional
Court upheld the decision on appeal at the final level of
jurisdiction.
II. RELEVANT INTERNATIONAL AND DOMESTIC LEGAL MATERIAL
A. Constitution of the Russian Federation of 1993
- Everyone
has the right to liberty and security (Article 22 § 1). Arrest,
remand in custody and custodial detention are permissible only on the
basis of a court order. The term during which a person may be
detained prior to obtaining such an order cannot exceed forty-eight
hours (Article 22 § 2).
B. International documents
The
relevant international legal material is summarised in the case of
Dzhaksybergenov v. Ukraine, no. 12343/10,
§§ 25-29, 10 February 2011.
THE LAW
I. RULE 39 OF THE RULES OF COURT
- The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see paragraph 3 above) must continue in force
until the present judgment becomes final.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that if extradited to Kazakhstan he would face
the risk of being subjected to ill-treatment by the Kazakh
authorities. He relied on 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. Admissibility
- The
Court notes that the application 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.
B. Merits
- The
Government maintained that the applicant had failed to substantiate
his complaint. They submitted that the applicant’s arguments
concerning the risk of ill-treatment once extradited to Kazakhstan
had been verified and declared unfounded by the Prosecutor General’s
office of the Russian Federation, the Federal Migration Service
office of the Kaluga Region, the Kaluga District Court of the Kaluga
Region, the Kaluga Regional Court and the Supreme Court of Russia.
They further stated that neither the Russian Prosecutor General’s
office nor the Russian Ministry of Foreign Affairs had possessed any
information concerning infringement of the rights of individuals
previously extradited to Kazakhstan or widespread problems in the
Kazakh detention system. Furthermore, in addition to the receipt of
the assurances by the Kazakh authorities, the Russian authorities had
duly studied the reports from international and non-governmental
organisations submitted by the applicant and his representatives.
However, the data contained in the reports had been of a generic
nature and could not warrant the conclusion that the applicant was at
serious risk of ill-treatment if he were to be extradited to
Kazakhstan. Finally, the Government referred to the Court’s
observation in the case of Saadi v. Italy (no.37201/06, §
131, 28 February 2008) that “mere possibility of ill-treatment
on account of an unsettled situation in the receiving country does
not in itself give rise to a breach of Article 3”.
- The
applicant referred to the conclusions made by the Court in the case
of Baysakov and Others v. Ukraine (no. 54131/08, 18 February
2010) and retorted that the information contained in the reports of
the organisations concerned with protection of human rights had
presented sufficient evidence that the risk of ill-treatment faced by
him was real.
- The
Court reiterates that in determining whether it has been shown that
the applicant runs a real risk, if expelled, of suffering treatment
proscribed by Article 3, it will assess the issue in the light of all
the material placed before it. In cases such as the present the Court
must examine the foreseeable consequences of sending the applicant to
the receiving country, bearing in mind the general situation there
and his personal circumstances. To that end, as regards the general
situation in a particular country, the Court has often attached
importance to the information contained in recent reports from
independent international human rights protection associations such
as Amnesty International, or governmental sources. At the same time,
it has held that the mere possibility of ill-treatment on account of
an unsettled situation in the receiving country does not in itself
give rise to a breach of Article 3 and that, where the sources
available to it describe a general situation, an applicant’s
specific allegations in a particular case require corroboration by
other evidence (see Kamyshev v. Ukraine,
no. 3990/06, § 43, 20 May 2010, with further references).
- Furthermore,
in assessing such a risk, the Court assesses the situation in its
development, taking into account the indications of improvement or
worsening of the human rights situation in general or in respect of a
particular group or area that might be relevant to the applicant’s
situation (see, mutatis mutandis, Shamayev and Others v.
Georgia and Russia, no. 36378/02, § 337, ECHR
2005-III).
- The
Court firstly observes that in the recent case of Dzhaksybergenov
v. Ukraine it has reassessed its earlier findings in the
previous cases concerning extradition to Kazakhstan and found that
although international reports still voiced serious concerns as to
the human rights situation in Kazakhstan, there was no indication
that the situation was grave enough to call for a total ban on
extradition to that country (see Dzhaksybergenov, cited above,
§ 37).
- The
Court further notes that the applicant did not assert that he
belonged to the political opposition or to any other vulnerable
group. His allegation that any criminal suspect in Kazakhstan runs a
risk of ill treatment is too general and not corroborated by any
other evidence. In addition, the applicant did not provide any
evidence that he would not have access to adequate medical treatment
if he were extradited to Kazakhstan, nor is there any evidence that
his condition is grave or acute enough to otherwise prevent his
extradition.
- Considering
that reference to a general problem concerning human rights
observance in a particular country or reference to a health condition
cannot alone serve as a basis for refusal of extradition, the Court
is not convinced that the applicant’s individual circumstances
substantiate his fear of ill-treatment, including lack of adequate
medical treatment, in the receiving country.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s extradition, if executed, would
not violate Article 3 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there would be no violation of
Article 3 of the Convention if the applicant were extradited to
Kazakhstan;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
extradite the applicant until such time as the present judgment
becomes final or further order.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić Registrar President
