In the case of Bakoyev v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 15 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
30225/11) 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 Uzbekistani national, Mr Bafokul Bozorovich Bakoyev
(“the applicant”), on 3 May 2011.
The applicant was represented by Mr S. Zavyalov,
a lawyer practising 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.
The applicant alleged, in his initial application
form, that, if extradited to Kyrgyzstan, he would be subjected to ill-treatment
and would not receive a fair trial.
On 18 May 2011
the President of the First Section, acting upon a request of 16 May 2011 by the
applicant, decided to apply Rules 39 and 41 of the Rules of Court, indicating
to the Government that the applicant should not be extradited to Kyrgyzstan
until further notice and granting priority treatment to the application.
On 24 June 2011 the 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).
On 14 December 2011 the applicant informed
the Court that the Russian authorities had cancelled the order for his
extradition to Kyrgyzstan and taken a decision to extradite him to Uzbekistan. He complained that in the event of his extradition to Uzbekistan he would also face the risk of ill-treatment and suffer a flagrant denial of a
fair trial. The applicant further challenged the lawfulness of his detention
pending extradition. He asked for the application of Rule 39.
On 16 December
2011 the President of the First Section decided to indicate to the Government,
under Rule 39, that the applicant should not be extradited to Uzbekistan until further notice.
On 20 December 2011 questions were put to the
Government under Articles 3 and 6 of the Convention regarding the applicant’s
upcoming extradition to Uzbekistan.
On 16 March 2012 the applicant’s complaint
under Article 5 § 1 was additionally communicated to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, an Uzbekistani national of Uzbek
ethnic origin, was born in 1953 and currently lives in Moscow.
Between 1953 and 2002 the applicant lived in Uzbekistan. From 2002 to 2008 he lived in Kyrgyzstan. He moved back to Uzbekistan in 2008 and lived there until 2010.
According to the
applicant, he is not a member of any political or religious organisations.
On 30 May 2010 the applicant left Tashkent, Uzbekistan, and arrived in Moscow on a business trip.
A. Criminal proceedings against the applicant in Kyrgyzstan
Meanwhile, on 6 March 2009 the Osh City Prosecutor’s Office of Kyrgyzstan
opened criminal proceedings against the applicant under Article 166 § 3
(2) of the Criminal Code of Kyrgyzstan (large-scale fraud).
On 20 March 2009 the statement of charges against the applicant was issued.
On 27 March 2009 the Osh City Court of Kyrgyzstan decided that the applicant
should be remanded in custody.
On 28 March 2009 the applicant’s name was put on a cross-border wanted list.
B. Criminal proceedings against the applicant in Uzbekistan
On 13 July 2010 the chief investigator of the investigation department
of the Gidzhuvanskiy District Department of the Interior, in the Bukhara
Region, Uzbekistan, opened criminal proceedings against the applicant under
Article 168 § 3 (a) of the Criminal Code of Uzbekistan for fraud.
On 13 September 2010, charges were brought against the applicant. On the same
date the applicant’s name was put on a cross-border wanted list.
20. On 14 September 2010 the
Gidzhuvanskiy District Court remanded the applicant in
custody.
C. The applicant’s arrest in Russia and proceedings with a view to his extradition
1. Proceedings with a view to the applicant’s
extradition to Kyrgyzstan
21. On 3 June 2010 the applicant was
arrested by the police in Moscow as a person wanted by the Kyrgyzstani
authorities, and placed in remand prison IZ-77/4.
On 4 June 2010 the Kuzminskiy Inter-District Prosecutor of Moscow ordered the
applicant’s placement in custody with a view to
extradition.
23. On 29 June and 20 July 2010 the Kuzminskiy Inter-District
Prosecutor of Moscow interviewed the applicant. The
applicant submitted that he was a national of Uzbekistan and that he frequently
went to Russia on business. According to him, he had not applied for Russian
citizenship, political asylum or refugee status. The applicant also stated that
he was unaware that the Kyrgyzstani authorities were searching for him and confirmed
that he would appear before the investigator as he had nothing to fear. The
applicant added that, if extradited to Kyrgyzstan, he would not consider his
criminal prosecution to be politically or religiously motivated.
On 12 July 2010 the Prosecutor General’s Office
of Kyrgyzstan sent the Russian Prosecutor General’s
Office a request for the applicant’s extradition to Kyrgyzstan. The request
contained assurances that the applicant would not be expelled or extradited to
a third State without the consent of the Russian authorities, that the
applicant was being prosecuted for an ordinary criminal offence devoid of any
political character or discrimination on any ground, that he would be prosecuted
only for the offence for which he was being extradited and that he would be
able to freely leave Kyrgyzstan after he had stood trial and served a sentence.
. On
2 August 2010 the Prosecutor General’s Office of Kyrgyzstan submitted to
its Russian counterpart certified copies of the decisions to initiate criminal
proceedings against the applicant, to bring criminal charges against him, and
to put him on the cross-border wanted list, as well as the court order to place
him in custody, and an extract from the Criminal Code of Kyrgyzstan.
On an unspecified date the Russian Prosecutor
General’s Office made enquiries to the Russian Ministry of Foreign Affairs on
the issue of extradition to Kyrgyzstan. It appears that the request concerned
several persons, all of whom, except the applicant, were nationals of Kyrgyzstan. On 25 October 2010 the Ministry of Foreign Affairs replied as
follows:
“... When taking the ultimate decision on the extradition of
nationals of Kyrgyzstan, it is necessary to take into account the difficult
internal political situation which has emerged in Kyrgyzstan at the present
time, as well as the aggravation of inter-ethnic tension, which gives rise to the
possibility of biased examination of cases against citizens of this country not
belonging to the titular ethnic group.
In particular, the Ministry of Foreign Affairs has information
concerning serious breaches in a number of court proceedings against Kyrgyz
nationals of Uzbek origin; cases of intimidation of witnesses and assaults on
lawyers are not infrequent.
...
The Ministry of Foreign Affairs has no information which
prevents the following nationals of Kyrgyzstan [list of names, including the
name of the applicant] from being extradited.”
On 28 December 2010 the Deputy Prosecutor General of Kyrgyzstan provided
additional assurances to his Russian counterpart, stating, inter alia,
that the request for the applicant’s extradition had no connection with the
events in Bishkek in April 2010
and in Osh in June 2010;
that the applicant would not be subjected to any form of discrimination on any
ground, including his nationality, that he would be provided with every
opportunity to defend himself, including legal aid, and that he would not be
subjected to any form of ill-treatment.
On 18 January 2011 the Deputy Prosecutor General of Russia approved the request by the Prosecutor
General’s Office of Kyrgyzstan for the applicant’s extradition. The decision
noted that the acts of which the applicant was accused were punishable under
the Russian Criminal Code with a penalty exceeding one year’s imprisonment,
that the prosecution was not time-barred, that the applicant was a national of
Uzbekistan, that he had not acquired Russian nationality, and that his
extradition was not in breach of international agreements or domestic law.
The applicant appealed against the extradition order to the Moscow City
Court. He alleged that, in view of the unstable political situation in Kyrgyzstan and ethnic unrest between the Kyrgyz majority and the Uzbek minority, the
decision in his case entailed serious risks to life and limb.
On 25 February 2011 the Moscow City Court rejected the applicant’s appeal. It
held that the extradition order of 18 January 2011, having been based on a
sufficient review of the evidence relating to extradition, had been lawful and
justified. The City Court further found no reasons to doubt that the diplomatic
assurances of the Prosecutor General’s Office of Kyrgyzstan would be observed.
It dismissed as objectively unfounded the applicant’s argument about the risk
of his being subjected to torture, humiliation and arbitrary prosecution upon
his extradition to Kyrgyzstan.
On 4 May 2011 the Supreme Court of Russia upheld that decision on appeal.
2. Annulment of the decision on the applicant’s
extradition to Kyrgyzstan and proceedings with a view to his extradition to Uzbekistan
In the meantime, on
18 April 2011 the Deputy Prosecutor General of Uzbekistan sent his Russian counterpart a request for the applicant’s extradition to Uzbekistan. The request was based on the charges brought against the applicant under
Article 168 § 3 (a) of the Criminal Code of Uzbekistan and contained assurances
that he would not be extradited to a third country without the consent of the
Russian authorities, that no criminal proceedings would be initiated and that he
would not be tried or punished for an offence which was not the subject of the
extradition request and would be able to freely leave Uzbekistan once the court
proceedings had terminated and the punishment had been served. The request was
further accompanied by certified copies of the decisions to initiate
criminal proceedings against the applicant and to bring criminal charges
against him, the court order of 14 September 2010 to place him in custody (see paragraph
20 above), an extract from the Criminal Code of Uzbekistan and a certificate
confirming that the applicant was a national of Uzbekistan. This request was
received by the Russian authorities on 28 April 2011.
33. On 2 June 2011 the
Kuzminskiy Inter-District Prosecutor of Moscow interviewed
the applicant. The applicant submitted that he was a national of Uzbekistan, that he had left Uzbekistan for Kyrgyzstan in 2002 on business and that in 2008 he had
returned to Uzbekistan. He further stated that his family were permanently resident
in Uzbekistan. According to him, he frequently went to Russia on business. On the most recent occasion, the applicant had arrived in Russia on 20 May 2010 on a business trip. He had not applied for Russian citizenship or refugee
status, and had not been subjected to persecution on political grounds in Uzbekistan. The applicant also stated that he was unaware that the Uzbekistani authorities
were searching for him and gave assurances that he would appear before the
investigator as he had nothing to fear.
On 2
September 2011 the Deputy Prosecutor General of Russia annulled the decision of 18 January 2011 to extradite the applicant to Kyrgyzstan. The decision read as follows:
“In connection with the decision of the President of the [First]
Section of the European Court of Human Rights on the application of Rule 39 of
the Rules of Court in the case of Bakoyev v. Russia (application
no. 30225/11), the Representative of the Russian Federation at the
European Court of Human Rights - Deputy Minister of Justice of the Russian
Federation G.O. Matyushkin - submitted information to the Prosecutor General’s
Office of the Russian Federation on the suspension of any measures relating [the
applicant’s] surrender (extradition), deportation or other forcible removal to
Kyrgyzstan until further notice.
To date the European Court has not discontinued the application
of Rule 39, and therefore [the applicant] cannot be surrendered to the law-enforcement
bodies of the Republic of Kyrgyzstan.
By a decision of the Kuzminskiy Inter-District Prosecutor of
Moscow of 2 June 2011 [the applicant] was released from custody because of the
expiry of the statutory maximum period for [his] detention on remand.
At present the Prosecutor General’s Office of the Russian
Federation has received a request from the Prosecutor General’s Office of the
Republic of Uzbekistan for [the applicant’s] extradition to Uzbekistan on
charges of fraud under Article 168 § 3 (a) of the Criminal Code
of Uzbekistan.
Taking into account the decision of the European Court of Human
Rights to halt [the applicant’s] extradition to the Republic of Kyrgyzstan, as
well as the fact that [the applicant] is a national of Uzbekistan, the request
for [the applicant’s] extradition to Uzbekistan should be granted and the
decision on [his] extradition to Kyrgyzstan should be annulled.”
On the same day the
Deputy Prosecutor General of Russia took a decision to extradite the applicant to Uzbekistan. The decision noted that the acts of
which the applicant was accused were punishable under Article 159 § 3 of the Russian
Criminal Code by a penalty exceeding one year’s imprisonment, that the prosecution
was not time-barred, that the applicant was a national of Uzbekistan, that he
had not acquired Russian nationality, and that his extradition was not in
breach of international agreements or domestic law.
36. The
applicant’s lawyer lodged an appeal against the extradition order of 2
September 2011. He argued that, if extradited, the applicant would run the risk
of being subjected to inhuman treatment and torture, because of the existence
of a widespread practice of mass and flagrant human rights violations in Uzbekistan.
On an unspecified
date in October 2011 the Deputy Prosecutor General of
Uzbekistan submitted to the Russian authorities additional assurances to the
effect that the applicant would not be persecuted on political, racial or
religious grounds, that he would not be subjected to torture, violence or other
inhuman or degrading treatment, that his criminal prosecution would be carried
out in strict compliance with the law and that he would be provided with
every facility to defend himself, including legal aid.
On 19 October 2011
the Moscow City Court dismissed the applicant’s appeal
against the extradition order. Regarding the alleged risk of ill-treatment in
the event of extradition, the court held as follows:
“[The applicant’s and his lawyer’s]
arguments that in the event of [the applicant’s] extradition to Uzbekistan [the latter] would be subjected to torture and inhuman or degrading treatment
are unsubstantiated.
In particular, the references ... to the
instances of human rights violations in the Republic of Uzbekistan are of a
general, unspecified nature and have no connection to [the applicant].
Furthermore, the examples put forward by
[the applicant’s representative] from material issued by international human
rights organisations and publications in the press concerning human rights
violations in Uzbekistan concerned a certain category of persons: human rights
activists, religious believers, refugees and those seeking asylum who were
persecuted in Uzbekistan for their religious convictions, membership of Islamic
parties and movements banned in Uzbekistan, and for their criticism of the
Government’s policies; this cannot apply to [the applicant] since [he] is
charged with having committed criminal offences of a different legal nature,
liability for which is provided for in Article 168 § 3 (a) of the Criminal Code
of Uzbekistan, and does not belong to [any] of the above-mentioned categories
of persons.
The court also takes into consideration
[the fact] that none of the organisations mentioned by [the applicant’s
representative] has given a single example to show that any of the persons
previously extradited from Russia to Uzbekistan had been subjected to torture.
[The applicant’s and his lawyer’s]
arguments are further disproved by [the applicant’s] statements [during the interviews
of 29 June and 20 July 2010 and 2 June 2011] whereby [he] indicated
that the reason for his departure from Uzbekistan had been to deal with business
matters in the Russian Federation and denied any persecution [in Uzbekistan] on
political grounds or having applied for political asylum and citizenship in the
Russian Federation. [The applicant] further indicated that he had been living
in Uzbekistan since his birth; that he was unaware of being searched for by
law-enforcement bodies of the Republic of Uzbekistan; and that he was prepared to
appear before the investigator as he had nothing to fear. He did not mention
any instances of having been subjected to [ill-treatment] in the Republic of Uzbekistan, nor did he express any fears in that regard.
The accuracy of the records of [the above
interviews] was repeatedly certified by [the applicant’s] signature.
[The applicant] for the first time
expressed his fears [of being subjected to ill-treatment in the event of his
extradition to Uzbekistan] in the present complaint to the court, after his
arrest in Moscow and the decision of the Deputy Prosecutor General of the
Russian Federation on his extradition to Uzbekistan, and this, in the court’s
opinion, represents an attempt to avoid [criminal prosecution in Uzbekistan].
The court also takes into consideration
the fact that despite concerns expressed [by the applicant in relation to the
alleged risk of being subjected to ill-treatment in the event of his
extradition] [he] has never renounced his Uzbekistani citizenship, that his
family and all his relatives reside in Uzbekistan, and that after his arrival
in Russia [the applicant] freely moved about within Russian territory, [yet] did
not apply for refugee status or political or temporary asylum in connection
with his [alleged] persecution in the Republic of Uzbekistan.
...
Therefore, [the applicant’s and his
lawyer’s arguments] ... are of a hypothetical nature and reflect only their
personal opinion, which is disproved by the documents relating to the checks
carried out by the Federal Migration Service and the Prosecutor General’s Office
of the Russian Federation prior to the decision on [the applicant’s]
extradition, and by the information communicated by [the applicant] himself.
Under these circumstances the court does
not have any strong reasons to believe that after his extradition to the Republic of Uzbekistan [the applicant] would be subjected to any treatment that would be
unlawful from the point of view of international law. ...”
39. The applicant’s
lawyer lodged an appeal against the decision of 19 October 2011, arguing, inter
alia, that the Moscow City Court had failed to take into consideration the
contents of international materials attesting to the existence of a regular
practice of mass and flagrant violations of human rights in Uzbekistan which
was not limited to human rights activists, religious believers, refugees and
asylum-seekers.
40. On 19 December 2011 the Supreme Court of Russia
upheld the decision of 19 October 2011. It found that the Moscow City
Court had reached a reasoned conclusion that there were no grounds preventing
the applicant’s extradition to Uzbekistan. It further held that there was no
reason to believe that the applicant would run the risk of being subjected to
ill-treatment in the event of his extradition to Uzbekistan; that the applicant
was a national of Uzbekistan; that he did not have Russian citizenship; that he
had not acquired refugee status and had never been persecuted on political or
religious grounds in the requesting country; that he resided in Russia without being
registered as resident there; and that the criminal prosecution regarding the
charges brought against him was not time-barred.
D. Decisions concerning the
applicant’s detention
1. The applicant’s detention
with a view to his extradition to Kyrgyzstan
41. On 3 June 2010 the applicant was arrested in Moscow (see paragraph 21 above).
On 4 June 2010, on the basis of the provisions of
Article 61 § 1 of the Minsk Convention and Article 108 of the
Russian Code of Criminal Procedure, the Kuzminskiy Inter-District Prosecutor of
Moscow ordered the applicant’s detention pending
receipt of an extradition request from the Kyrgyzstani authorities.
On 8 July 2010 the Kuzminskiy Inter-District Prosecutor of Moscow ordered the
applicant’s detention until 3 August 2010 pending receipt
of an extradition request from the Kyrgyzstani authorities.
On 3 August and 2 December 2010 the Kuzminskiy District Court of Moscow
extended the applicant’s detention until 3 December 2010 and 3 June
2011 respectively.
On 2 June 2011 the Kuzminskiy Inter-District
Prosecutor ordered the applicant’s release from custody as the statutory maximum
period for his detention with a view to extradition to Kyrgyzstan had ended.
2. The applicant’s detention
with a view to his extradition to Uzbekistan
On the same day,
however, the Kuzminskiy Inter-District Prosecutor, with reference to the
extradition request of 18 April 2011 from the Uzbekistani authorities (see
paragraph 32 above), to a detention order of the Gizhduvanskiy District Court
of Uzbekistan of 14 September 2010 (see paragraph 20 above) and to Article
466 § 2 of the Russian Code of Criminal Procedure, took a fresh decision to
remand the applicant in custody pending his extradition to Uzbekistan.
On 28 June 2011 the Kuzminskiy District Court of
Moscow dismissed an appeal by the applicant against that decision, holding that
it was lawful and justified. On 12 August 2011 the Moscow City Court quashed
the decision of 28 June 2011 on appeal and remitted the matter to the
lower court for a fresh examination.
Following a fresh
examination, on 30 August 2011 the Kuzminskiy District Court held that the
decision of 2 June 2011 to remand the applicant in custody had been unlawful
and unjustified. On the same day the Kuzminskiy District Court refused a
request by the prosecutor for the extension of the custodial measure. On 19
September 2011 the Moscow City Court upheld the decision of 30 August 2011
on appeal.
In a separate set
of proceedings, on 29 July 2011 the Kuzminskiy District Court extended the
applicant’s detention until 2 December 2011, with reference to Article 109 of
the Russian Code of Criminal Procedure. The court noted that the applicant was
charged in Uzbekistan with a serious offence punishable by more than one year’s
imprisonment under Russian law, that he had absconded from the Uzbekistani
authorities and that he had no permanent residence in Russia. Therefore, in the
court’s view, the applicant’s continued detention was necessary to secure his
extradition to Uzbekistan, as he might flee from the law-enforcement
authorities if released.
On 24 August 2011 the Moscow City Court quashed
the decision of 29 July 2011 on appeal and remitted the matter to a
different bench for fresh consideration. The court further ordered that the
custodial measure be maintained until 31 August 2011.
On 31 August 2011 the acting Kuzminskiy Inter-District
Prosecutor ordered the applicant’s release, pursuant to the court order of 30
August 2011 (see paragraph 48 above).
In the applicant’s submission, once informed of
the prosecutor’s decision of 31 August 2011, he was immediately detained
as a suspect under Article 91 of the Russian Code
of Criminal Procedure and placed in a temporary detention facility until
2 September 2011. According to the Government, on 31 August 2011 the
applicant was released and remained at liberty until 2 September 2011.
On 2 September 2011 the acting Kuzminskiy Inter-District
Prosecutor, with reference to Article 466 § 2 of the Russian Code of Criminal
Procedure, took a decision to remand the applicant in custody on the basis of
the detention order of the Gizhduvanskiy District Court of Uzbekistan of
14 September 2010.
On 31 October 2011 the Kuzminskiy District Court
extended the applicant’s detention until 6 March 2012. The Moscow City Court
upheld that decision on appeal on 7 December 2011.
On 22 February 2012 the Kuzminskiy District
Court extended the applicant’s detention until 2 June 2012. The applicant
appealed against that detention order. The results of the examination of his
appeal have not been made available to the Court by either party to the
proceedings.
On 1 June 2012 the acting Kuzminskiy Inter-District
Prosecutor, in view of the expiry of the statutory maximum period for the
applicant’s detention as provided for by Article 109 of the Russian Code of
Criminal Procedure, took a decision to release the applicant on an undertaking
not to leave his place of residence.
E. Refugee proceedings
57. In the meantime, on 11 February 2011 the applicant had lodged
a request with the Russian Federal Migration Service (“the FMS”) for refugee
status. He submitted that in the event of his extradition to Kyrgyzstan he, as an ethnic Uzbek, would run a real risk of prosecution on the ground of his
nationality.
58. On 4 May 2011 his application was rejected by the Moscow
Department of the FMS. The FMS noted, in particular, that after his entry to
Russia on 30 May 2010, the applicant, a national of Uzbekistan, had been arrested
by the police on 3 June 2010 as a person wanted by the Kyrgyzstani
authorities for having committed a crime under Article 166 § 3 of the Criminal
Code of Kyrgyzstan, which corresponded to Article 159 § 4 of the Russian
Criminal Code (large-scale fraud). The FMS took note of the fact that the
applicant had not applied for refugee status until 11 February 2011. The
FMS then examined the political and legal developments in Kyrgyzstan in recent years. It noted that the applicant had not denied the charges brought against
him by the Kyrgyzstani authorities, that he had not participated in any
inter-ethnic clashes between the Kyrgyz majority and the Uzbek minority in the
city of Osh in 2010, and that he had not put forward any evidence of being
persecuted by persons belonging to the Kyrgyz majority. The FMS concluded,
therefore, that the applicant had left Kyrgyzstan and was unwilling to return
there as he wished to avoid criminal prosecution for the crime with which he
had been charged, for which reason he was not eligible for refugee status.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
Article 21 of the Constitution provides:
“2. No one shall be subjected to torture, violence
or other severe or humiliating treatment or punishment.”
Article 22 reads as follows:
“1. Everyone shall have the right to liberty and
security.
2. Arrest, detention and remanding
in custody shall be allowed only on the basis of a court order. A person may not be detained for more than forty-eight hours
prior to such an order.”
Article 62 provides:
“3. Foreign nationals and stateless
persons shall enjoy in the Russian Federation the rights and bear the
obligations of citizens of the Russian Federation, except for cases envisaged
by federal law or the international agreements to which the Russian Federation is a party.”
Article 63 reads as follows:
“2. In the Russian Federation it shall not be
allowed to extradite to other States those people who are persecuted for
political convictions, as well as for actions (or inaction) not recognised as a
crime in the Russian Federation. The extradition of people accused of a crime,
and also the handing over of convicted persons to serve sentences in other
States, shall be carried out on the basis of federal law or the international
agreements to which the Russian Federation is a party.”
B. The Criminal Code of the Russian Federation
63. The
Russian Criminal Code provides that foreign nationals and stateless persons residing
in Russia who have committed a crime outside its borders can be extradited to a
State seeking their extradition with a view to criminal prosecution or the execution
of a sentence (Article 13 § 2).
C. The Code of Criminal Procedure of the Russian Federation
The term “court” is defined by the Code of
Criminal Procedure 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 as “an official empowered to
administer justice” (Article 5 § 54).
Chapter 12 of the Code
(“Arrest of a suspect”) provides that an investigating authority, an
investigator or a prosecutor has the right to arrest a person suspected of having
committed a criminal offence which is punishable by imprisonment if that person
has been caught committing a crime or immediately after having committed a
crime; if victims or eyewitnesses have identified that person as the
perpetrator of a criminal offence; or if obvious traces or signs of a criminal
offence have been discovered on that person or his or her clothes, or with the
person or in his or her house. If there are other circumstances giving grounds to
suspect a person of having committed a crime, that person may be arrested if he
or she has attempted to hide, or does not have a permanent residence, or if the
person’s identity has not been established, or if the investigator has submitted
to the court a request for the application of a custodial measure in respect of
that person (Article 91).
Article 92 sets out the
procedure for the arrest of a suspect. The detention record must be drawn up
within three hours of the time the suspect is brought to the investigating
authorities or the prosecutor. The detention record must include the date,
time, place, grounds and reasons for the arrest. It should be signed by the
suspect and the person who made the arrest. Within twelve hours of the time of
the arrest the investigator must notify the prosecutor of it in writing. The
suspect must be interviewed in accordance with the questioning procedure and a
lawyer must be provided to him or her at his or her request. Before the
questioning the suspect has the right to a confidential two-hour meeting with a
lawyer.
Chapter 13 (“Preventive measures”) governs the
use of preventive measures (меры
пресечения)
while criminal proceedings are pending. Such measures include 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). An
application for detention 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).
. A
judge’s decision on detention is amenable to appeal before a higher court
within three days after its delivery (Article 108 § 11). The appeal court must determine
the appeal within three days of its receipt (Article 108 § 11).
A period of detention pending investigation may
not exceed two months (Article 109 § 1). A judge may extend that period up to
six months (Article 109 § 2). Further extensions of up to twelve months, or in
exceptional circumstances, up to eighteen months, may only be granted 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).
If the grounds serving as the basis for a
preventive measure have changed, the preventive measure must be cancelled or
amended. A decision to cancel or amend a preventive measure may be taken by an
investigator, a prosecutor or a court (Article 110).
A preventive measure may 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 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 the parties to
criminal proceedings (Article 125 § 1). The competent court is the court with
territorial jurisdiction over the location at which the preliminary
investigation is conducted (ibid.).
Chapter 54 of the Code of
Criminal Procedure (“Extradition for criminal prosecution or execution
of sentence”) regulates extradition procedures (Articles 460-468).
The Russian Federation can extradite a foreign
national or a stateless person to a foreign State on the basis of either a
treaty or the reciprocity principle to stand trial or serve a sentence for a
crime punishable under Russian legislation and the laws of the requesting
State. An extradition on the basis of the reciprocity principle implies that
the requesting State assures the Russian authorities that under similar
circumstances it would grant a request by Russia for extradition
(Article 462 §§ 1 and 2).
Extradition can take place where (i) the actions
in question are punishable by more than one year’s imprisonment or a more
severe sentence; (ii) the requested individual has been sentenced to six months’
imprisonment or a more severe punishment; and (iii) the requesting State
guarantees that the individual in question would be prosecuted only for the
crime mentioned in the extradition request, that upon completion of the
criminal proceedings and the sentence he or she would be able to leave the territory of the requesting State freely and that he or she would not be expelled or
extradited to a third State without the permission of the Russian authorities
(Article 462 § 3).
The Russian Prosecutor General or his or her deputy
decides upon the extradition request (Article 462 § 4). The decision by the
Russian Prosecutor General or his or her deputy may be appealed against before
a regional court within ten days of receipt of the notification of that
decision (Article 463 § 1). In that case the extradition order
should not be enforced until a final judgment is delivered (Article 462 § 6). If
several foreign States request a person’s extradition the decision on which of
the requests should be granted is taken by the Prosecutor General of the Russian Federation or his or her deputy. The requested person should be informed of the
relevant decision in writing within twenty-four hours (Article 462 § 7).
The regional court, sitting as a bench of three
judges, verifies the lawfulness and well-foundedness of the extradition
decision within one month of the receipt of the appeal, in a public hearing in
the presence of a prosecutor, the person whose extradition is sought and the
latter’s legal counsel (Article 463 § 4). 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 applicable international and domestic law (Article 463 § 6). The court decides either to declare the extradition
decision unlawful and to quash it or to dismiss the appeal (Article
463 § 7). The regional court’s decision can be appealed
against before the Russian Supreme Court within seven days of its delivery (Article 463 § 9).
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 instituted 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 refused 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)).
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).
If a request for
extradition is accompanied by an arrest warrant issued by a foreign court, a
prosecutor may impose house arrest on the individual concerned or place him or
her in detention “without seeking confirmation of the validity of that order
from a Russian court” (Article 466 § 2).
D. Relevant case-law of the Constitutional Court and
the Supreme Court of Russia
On 4 April
2006 the Constitutional Court of Russia (“the Constitutional Court”) examined
an application by a Mr N., who had submitted that the lack of any
limitation in time on the detention of a person pending extradition was
incompatible with the constitutional guarantee against arbitrary detention. In
its decision no. 101-O of the same date, the Constitutional Court declared the application inadmissible. In its view, the absence of any
specific regulation of detention matters in Article 466 § 1 did not create a
legal lacuna incompatible with the Constitution. Article 8 § 1 of the
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 Code of Criminal Procedure. Such procedure
comprised, in particular, Article 466 § 1 of the Code and the norms in Chapter
13 of the Code (“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. Accordingly, Article 466 § 1 of the Code did
not allow the authorities to apply a custodial measure without complying with
the procedure established in the Code or the time-limits fixed in the Code. The
Constitutional Court also refused to analyse Article 466 § 2, finding that it
had not been applied in Mr N.’s case.
On 1 March 2007 the Constitutional Court in its
decision no.-333-O-P held that Articles 61 and 62 of the
Minsk Convention, governing a person’s detention pending the receipt of an
extradition request, did not determine the body or official competent to order
such detention, the procedure to be followed or any time-limits. In accordance
with Article 8 of the Minsk Convention, the applicable procedures and
time-limits were to be established by domestic legal provisions.
The Constitutional Court further 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 could 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 and within the time-limits
established in Chapter 13 of the Code.
. In decision no.
245-O-O of 20 March 2008, the Constitutional Court of the Russian Federation
noted that it had reiterated on several occasions (rulings nos. 14-P, 4-P,
417-O and 330-O of 13 June 1996, 22 March 2005, 4 December 2003 and 12 July
2005 respectively) that a court, when taking a decision under Articles 100,
108, 109 and 255 of the Russian Code of Criminal Procedure on the placement of
an individual into detention or on the extension of a period of an individual’s
detention, was under an obligation, inter alia, to calculate and specify a time-limit for such detention.
On 19 March 2009 the Constitutional Court by its
decision no.-383-O-O dismissed as inadmissible a request for a
review of the constitutionality of Article 466 § 2 of the Code of Criminal
Procedure, stating that this provision “does not establish time-limits for
custodial detention and does not establish the grounds 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] ...”
86. On 29 October 2009 the Plenary
Session of the Russian Supreme Court (“the Supreme Court”) adopted Directive
Decision no. 22, stating that, pursuant to Article 466 § 1 of the Code of
Criminal Procedure, only a court could order the placement in custody of a
person in respect of whom an extradition check was pending when the authorities
of the country requesting extradition had not submitted a court decision to
place him or her in custody. The judicial authorisation of placement in custody
in that situation was to be carried out in accordance with Article 108 of the Code
of Criminal Procedure and following a prosecutor’s request to that end. In
deciding to remand a person in custody, the court had to examine whether there
existed factual and legal grounds for applying the preventive measure. If the
extradition request was accompanied by a detention order of a foreign court, a
prosecutor, in accordance with Article 466 § 2 of the Russian Code of Criminal
Procedure, was entitled to remand a person in custody without a Russian court’s
authorisation for a period not exceeding two months (as provided by Article 109
§ 1 of the Russian Code of Criminal Procedure). In extending such a person’s
detention with a view to extradition the court was to apply Article 109 of the
Russian Code of Criminal Procedure.
In its recent ruling no. 11 of 14 June 2012, the
Supreme Court indicated, with reference to Article 3 of the Convention, that
extradition should be refused if there were serious reasons to believe that the
person might be subjected to torture or inhuman or degrading treatment in the
requesting country. Extradition could also be refused if exceptional
circumstances disclosed that it might entail a danger to the person’s life and
health on account of, among other things, his or her age or physical condition.
The Russian authorities dealing with an extradition case should examine whether
there were reasons to believe that the person concerned might be sentenced to
the death penalty, subjected to ill-treatment or persecuted because of his or
her race, religious beliefs, nationality, ethnic or social origin or political
opinions. The courts should assess both the general situation in the requesting
country and the personal circumstances of the person whose extradition was
sought. They should take into account the testimony of the person concerned and
that of any witnesses, any assurances given by the requesting country, and
information about the country provided by the Ministry of Foreign Affairs, by
competent United Nations institutions and by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
88. The Supreme Court further held that a person whose extradition was
sought could be detained before the receipt of an extradition request only in
cases specified in international treaties to which Russia was a party, such as
Article 61 of the Minsk Convention. Such detention should be ordered and
extended by a Russian court in accordance with the procedure, and within the
time-limits, established by Articles 108 and 109 of the Code of Criminal
Procedure. The detention order should mention the term for which the detention
or its extension was ordered and the date of its expiry. If the request for
extradition was not received within a month, or forty days if the requesting
country was a party to the Minsk Convention, the person whose extradition was
sought should be immediately released.
III. INTERNATIONAL
INSTRUMENTS AND OTHER DOCUMENTS
A. The 1993 CIS Convention on
Legal Assistance and Legal Relations in Civil, Family and Criminal Matters
(“the Minsk Convention”)
In executing a request for legal assistance
under the Minsk Convention, to which Russia, Kyrgyzstan and Uzbekistan are parties, the requested party applies its domestic law (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 are punishable by imprisonment for at least one year (Article 56 § 2).
A request for extradition must be accompanied by
a detention order (Article 58 § 2).
Upon receipt of a request for extradition,
measures should be taken immediately to find and arrest the person whose
extradition is sought, except in cases where that person cannot be extradited
(Article 60).
A person whose extradition
is sought may be arrested before receipt of a request for extradition. In
such cases a special warrant for arrest containing a reference to the detention
order and indicating that a request for extradition will follow must be issued (Article 61 § 1). If the person is arrested or placed in
detention before receipt of the extradition request, the requesting country
must be informed immediately (Article 61 § 3).
A person arrested 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 the requisite
supporting documents within forty days of the date of placement in custody
(Article 62 § 1).
B. Reports on the human-rights
situation in Kyrgyzstan and Uzbekistan
95. For relevant reports on Kyrgyzstan see Makhmudzhan Ergashev v. Russia
(no. 49747/11, §§ 30-46, 16 October 2012 [not yet final]).
For relevant reports on Uzbekistan see Shakurov v. Russia (no. 55822/10, §§ 100-109,
5 June 2012).
THE LAW
I. ALLEGED RISK OF ILL-TREATMENT AND DENIAL OF A FAIR
TRIAL
The applicant initially complained that if extradited to Kyrgyzstan he would run the risk of
ill-treatment and would be denied a fair trial. He subsequently brought
identical complaints with regard to his extradition to Uzbekistan. The applicant relied on Article 3 and Article 6 § 1 of the Convention, which in so far
as relevant read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 6 § 1
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Court observes that, while the proceedings
before it were pending, the Russian law-enforcement authorities annulled the
decision to extradite the applicant to Kyrgyzstan and took a new decision on
his extradition to Uzbekistan. Therefore, as matters stand, the applicant no
longer faces any risk of removal to Kyrgyzstan. Thus, it
must be concluded that the factual and legal circumstances which were at the
heart of the applicant’s grievance before the Court on that account are no
longer valid. Consequently, he can no longer claim to be a victim within
the meaning or Article 34 of the Convention as regards his complaints that he
would be subjected to ill-treatment and would be denied a fair trial in Kyrgyzstan (see, in a similar context, Joesoebov v. the
Netherlands (dec.), no. 44719/06, 2 November 2010; and Afif v. the
Netherlands (dec.), no. 60915/09, 24 May 2011).
. The
Court therefore rejects this part of the application pursuant to Article 35 §§
3 (a) and 4 of the Convention.
. The
above findings do not prevent the applicant from lodging a new application
before the Court and from making use of the available procedures, including the
one under Rule 39 of the Rules of Court, in respect of any new circumstances,
in compliance with the requirements of Articles 34 and 35 of the Convention
(see Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011).
. In
so far as the applicant complained that his extradition to Uzbekistan would
expose him to a real risk of treatment prohibited by Article 3 of the
Convention, the Court notes that this part of 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 and must,
therefore, be declared admissible.
Lastly, as regards the applicant’s complaint
under Article 6 of the Convention that he would face a denial of a fair trial
in the event of his extradition to Uzbekistan, the Government submitted that he
had never raised that particular concern before the Russian courts and that
there was no information suggesting that his fears were substantiated. The
Court will leave aside the question whether the applicant exhausted domestic
remedies in respect of this complaint, as it is in any event inadmissible for
the following reasons.
The Court reiterates that an issue might
exceptionally arise under Article 6 of the Convention by
an expulsion or extradition decision in circumstances where the fugitive had
suffered or risked suffering a flagrant denial of justice in the requesting
country (see Soering v. the United Kingdom, 7 July 1989, § 113,
Series A no. 161; Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, §§ 90-91, ECHR 2005-I; and Al-Saadoon and
Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010). A flagrant denial of justice goes beyond mere irregularities or
lack of safeguards in the trial procedures such as might result in a breach of
Article 6 if occurring within the Contracting State itself. What is required is
a breach of the principles of fair trial guaranteed by Article 6 which is so
fundamental as to amount to a nullification, or destruction of the very
essence, of the right guaranteed by that Article (see Othman (Abu
Qatada) v. the United Kingdom, no. 8139/09, § 260, 17 January 2012). In assessing whether this test has been met, the Court
considers that the same standard and burden of proof should apply as in Article
3 expulsion cases. Therefore, it is for the applicant to adduce evidence
capable of proving that there are substantial grounds for believing that, if he
is removed from a Contracting State, he would be exposed to a real risk of
being subjected to a flagrant denial of justice (ibid., § 261).
Turning to the present case, the Court observes
that, as was pointed out by the Government, the applicant has never expressed
his fears in this regard at domestic level, whereas in his submissions before
the Court, the applicant merely referred to the risk of a denial of a fair
trial in Uzbekistan without providing any further details or advancing any
specific arguments in support of this complaint, let alone corroborating it
with any evidence. In such circumstances, the Court finds that the applicant failed
to discharge his burden of proof and that his complaint under Article 6 in this
regard has not been substantiated.
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. Merits
1. The parties’ submissions
The applicant maintained his complaints.
The Government submitted that the applicant had
failed to provide any reliable evidence to show that in the event of his
extradition to Uzbekistan he would run the risk of being subjected to
ill-treatment contrary to Article 3 of the Convention. Uzbekistan had sought the applicant’s extradition in order to pursue criminal proceedings against
him arising out of ordinary criminal charges. The applicant had not alleged
that he belonged to any banned religious movement or any other vulnerable group
which, according to reliable international sources, systematically
endured the practice of ill-treatment in Uzbekistan. Moreover, in his
explanations given to a Russian prosecutor on 29 June and 20 July 2010 and 2
June 2011 (see paragraphs 23 and 33 above) the applicant had stated that he had left Uzbekistan for Russia on business and had denied any persecution on political grounds there. He had never sought
political asylum in Russia, or applied for Russian citizenship. The Government
went on to note that the guarantees provided by the Prosecutor General of Uzbekistan were sufficient to protect the applicant from the risk of being subjected to
treatment contrary to Article 3 of the Convention in the event of his
extradition.
2. The Court’s assessment
(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 receiving
country. The establishment of that responsibility inevitably involves an
assessment of conditions in the requesting country against the standards of
Article 3 of the Convention. Nonetheless, there is no question of adjudicating
on or establishing the responsibility of the receiving country, whether under
general international law, under the Convention or otherwise (see Soering, cited above, §
91).
. 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 Saadi v. Italy [GC], no. 37201/06, § 128,
ECHR 2008). Since the nature of the Contracting States’
responsibility under Article 3 in cases of this kind lies in the act of exposing
an individual to the risk of ill-treatment, the existence of the risk must be
assessed primarily with reference to those facts which were known or ought to
have been known to the Contracting State at the time of the extradition (see Cruz Varas and Others v. Sweden, 20 March 1991, §§ 75-76, Series A no. 201,
and Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107, Series A no. 215). However, if the
applicant has not been extradited or deported when the Court examines the case,
the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, 15 November 1996, §§ 85-86, Reports 1996-V).
. In
order to determine whether there is a risk of ill-treatment, the Court must
examine the foreseeable consequences of sending the applicant to the receiving
country, bearing in mind the general situation there and his personal
circumstances (see Vilvarajah and Others, cited above, § 108 in fine). It is in principle for the applicant to adduce evidence
capable of proving that there are substantial grounds for believing that, if
the measure complained of were to be implemented, he would be exposed to a real
risk of being subjected to treatment contrary to Article 3 (see N. v. Finland,
no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is
for the Government to dispel any doubts about it (see Ryabikin v. Russia,
no. 8320/04, § 112, 19 June 2008).
. As
regards the general situation in a particular country, the Court considers that
it can attach certain importance to the information contained in recent reports
from independent international human rights protection bodies and 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 receiving country does not in itself give rise to a breach of
Article 3 (see Vilvarajah and Others, cited above, § 111, and Katani
and Others v. Germany (dec.), no. 67679/01, 31
May 2001). Where the sources available to the Court describe a general
situation, an applicant’s specific allegations in a particular case require
corroboration by other evidence (see Mamatkulov
and Askarov, cited above, § 73).
(b) Application of the above principles to the
present case
The Court observes that the Russian authorities
ordered the applicant’s extradition to Uzbekistan. The extradition order has
not been enforced as a result of an indication by the Court of an interim
measure under Rule 39 of the Rules of Court. The Court will therefore assess
whether the applicant faces a risk of treatment contrary to Article 3 in the
event of his extradition to Uzbekistan - the material date for the assessment
of that risk being that of the Court’s consideration of the case - taking into
account the assessment made by the domestic courts.
As regards the general situation in the
receiving country, the Court has on several occasions noted the alarming
reports on the human rights situation in Uzbekistan relating to the period
between 2002 and 2007 (see, for instance, Ismoilov and Others v. Russia,
no. 2947/06, § 121, 24 April 2008; and Muminov v. Russia, no. 42502/06,
§ 93, 11 December 2008). In
recent judgments concerning the same subject and covering the period after 2007
until recently, after having examined the latest available information, the
Court has found that there was no concrete evidence to demonstrate any
fundamental improvement in that area (see, among many others, Garayev
v. Azerbaijan, no. 53688/08, § 71,
10 June 2010; Abdulazhon Isakov v. Russia, no. 14049/08, §
109, 8 July 2010; Yuldashev v.
Russia, no. 1248/09, § 93, 8 July 2010; Sultanov v. Russia, no.
15303/09, § 71, 4 November 2010; Yakubov v. Russia, no.
7265/10, §§ 81 and 82, 8 November 2011; and Rustamov v. Russia,
no. 11209/10, § 125, 3 July 2012).
At the same time, it has consistently
emphasised that reference to a general problem concerning human rights
observance in a particular country is normally insufficient to bar extradition
(see Kamyshev v. Ukraine, no. 3990/06, § 44, 20 May 2010, and Shakurov,
cited above, § 135).
Moreover, in the case of Elmuratov v. Russia (no. 66317/09, § 84, 3 March 2011) the Court considered the
applicant’s allegations that any criminal suspect in Uzbekistan ran a risk of ill-treatment
to be too general and stated 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.
The Court is mindful of the fact that it has on
several occasions found violations of Article 3 of the Convention in cases
involving extradition or deportation to Uzbekistan. However, the applicants in
those cases had been mostly charged with politically and/or religiously
motivated criminal offences (see Ismoilov and Others, cited above, § 122;
Muminov, cited above, § 94; and Yuldashev v. Russia, no. 1248/09, § 84, 8 July 2010). In the
case of Garayev (cited above, § 72)
the Court also found that the applicant ran a real risk of being subjected
to treatment contrary to Article 3 of the Convention, although he was wanted
for an offence which was not politically motivated. In that case, however, 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 previously been arrested and convicted in
suspicious circumstances. It therefore considered that the applicant’s
description of previous ill-treatment was detailed and convincing.
In the present case, the Court observes that
the applicant is wanted by the Uzbekistani authorities on charges of fraud. In
his submissions before the Court, the applicant clearly stated that he was not
a member of any political or religious organisation (see paragraph 12 above). Moreover,
as was noted by the Moscow City Court in its judgment of 19 October 2011, in
the proceedings pending his extradition to Uzbekistan, the applicant denied having
ever been subjected to any political persecutions in that country, and did not
refer to any personal experience of ill-treatment at the hands of the Uzbekistani
law-enforcement authorities. Similarly, he never alleged that his family, who,
according to him, resided in Uzbekistan (see paragraph 33 above), had been
politically or religiously active or persecuted (see, by contrast, Garayev,
cited above, § 72).
It was in his court complaint against the
extradition order of 2 September 2011 that the applicant alleged for the
first time that he would face a risk of ill-treatment if extradited to Uzbekistan. The Court observes in this connection that, both at the domestic level and in
his submissions before the Court, the applicant only broadly referred to the
risk of being ill-treated. In fact, the only argument he employed in support of
this allegation was his reference to the practice of human rights violations,
including torture, which was common in Uzbekistan. The applicant made no attempts,
either in the domestic proceedings or before the Court, to refer to any
individual circumstances and to substantiate his fears of ill-treatment in Uzbekistan.
Having regard to the material in its
possession, the Court is further satisfied that the domestic authorities,
including the courts at two levels of jurisdiction, gave proper consideration
to the applicant’s arguments and dismissed them as unsubstantiated in detailed
and well-reasoned decisions. There is nothing in the case file to doubt that
the domestic authorities made an adequate assessment of the risk of
ill-treatment in the event of the applicant’s extradition to Uzbekistan. The Court can see no reasons to depart from the domestic courts’ findings in the circumstances
of the present case.
In the light of the foregoing, the Court concludes that the applicant has not corroborated the
allegations of a personal risk of ill-treatment in Uzbekistan, and thus has
failed to substantiate his allegations that his extradition
there would be in
violation of Article 3 of the Convention.
. Accordingly,
there would be no violation of that provision in the event of the applicant’s
extradition to Uzbekistan.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
. The
applicant complained under Article 5 § 1 (f) of the Convention that his
detention pending extradition had been unlawful. Article 5 § 1 reads in so far
as relevant as follows:
“1. Everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or
detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to
deportation or extradition ...”
A. The parties’ submissions
1. The applicant
The applicant submitted that he had been unlawfully
deprived of his liberty during the entire period of his detention pending
extradition, that is, between 3 June 2010 and 1 June 2012.
In particular, the applicant argued that his
detention from 3 June 2010 until 2 June 2011 pending his extradition to Kyrgyzstan had been unlawful, given the annulment of the Russian Prosecutor General’s
decision to extradite him to that country.
The applicant further contended that the
prosecutor’s order of 2 June 2011 to detain him with a view to his
extradition to Uzbekistan (see paragraph 46 above) could not serve as a sound legal
basis for his detention, as under Article 466 § 2 of the Russian Code of
Criminal Procedure a prosecutor was only entitled to detain a person with a
view to extradition if an extradition request was accompanied by a detention
order issued by a court of the requesting country. A copy of the decision of
the Gizhduvanskiy District Court of Uzbekistan of 14 September 2010, to which a
Russian prosecutor had referred in his order of 2 June 2011, had not been duly
signed by the judge who had issued that order or sealed with that court’s
official stamp, and therefore, in the applicant’s view, could not be regarded
as a valid court decision for the purposes of Article 466 § 2 of the Russian
Code of Criminal Procedure. The applicant further pointed out that the
prosecutor’s order of 2 June 2011 had been set aside by a court decision of 30
August 2011 as unlawful and unjustified (see paragraph 48 above). Lastly, the
applicant submitted that his detention pursuant to a prosecutor’s order had
been unlawful in any event as the Court had held in the case of Dzhurayev v.
Russia (no. 38124/07, §§ 72-74, 17 December 2009) that only a Russian
court’s decision could form a proper legal basis for a person’s detention
pending extradition.
He further argued that since his initial
placement in detention on the basis of the prosecutor’s order of 2 June 2011
had been unlawful, all subsequent extensions of his detention by the Russian
courts had been unlawful too. The applicant also submitted that Articles 108
and 109 of the Russian Code of Criminal Procedure could not be regarded as a
proper legal basis for his detention pursuant to orders of Russian courts as
those provisions were designed to be applicable in situations where criminal
proceedings were pending; they were not suitable for extradition proceedings.
The applicant then insisted that once released on 31 August 2011, he had been immediately detained with reference to Article 91 of the
Russian Code of Criminal Procedure in the absence of any grounds for that
detention.
Lastly, the applicant alleged that the overall
length of his detention pending extradition had been excessive, given that he
had spent twelve months in detention pending his extradition to Kyrgyzstan and then another twelve months in detention pending his extradition to Uzbekistan. He argued, in particular, that although the Prosecutor General’s Office of Russia had
received an extradition request from the Uzbekistani authorities on 28 April
2011, no relevant checks had been carried out until 2 June 2011, the date on
which the maximum possible term for the applicant’s detention pending
extradition to Kyrgyzstan had expired.
2. The Government
The Government insisted that the applicant’s
detention pending extradition had been lawful during its entire period, and
that the domestic provisions governing detention pending extradition were
sufficiently accessible and clear. They submitted that the provisions of
Article 466 of the Russian Code of Criminal Procedure clearly established that
a person whose extradition was sought could be detained pursuant to a Russian
prosecutor’s order provided that an extradition request was accompanied by a
detention order issued by a court of a requesting country.
. Furthermore,
in line with the Constitutional Court’s decision of 4 April 2006 (see
paragraph 81 above) and the Supreme Court’s ruling of 29 October 2009 (see
paragraph 86 above), Chapter 13 of the Russian Code of Criminal Procedure
applied to all stages and forms of proceedings for the examination of
extradition requests and, accordingly, the applicant had been able to foresee
the overall duration of his detention pending extradition, since all the
relevant periods were set out in Articles 108 and 109 of the Russian Code of
Criminal Procedure applicable to his case. They also pointed out that, when extending his detention, the domestic courts had always clearly indicated the periods of detention in their decisions.
The Government further argued that the domestic
authorities had conducted the extradition proceedings with due diligence and
that the applicant’s detention pending extradition had not been excessively
long. They stressed in that connection that between 3 June 2010 and 2 June 2011
the applicant had been detained with a view to his extradition to Kyrgyzstan, whereas from 2 June 2011 until 1 June 2012 he had remained in detention pending his
extradition to Uzbekistan. Each period had not exceeded twelve months - the
maximum possible period of detention under Article 109 of the Russian Code of
Criminal Procedure - and therefore had been lawful and in compliance with the
requirements of Article 5 § 1 (f) of the Convention.
B. The
Court’s assessment
1. Lawfulness of the applicant’s detention
(a) Admissibility
The Court reiterates at the outset that it is not open to it to set aside the application of the
six-month rule solely because a Government have not made a preliminary
objection to that effect (see Blečić v. Croatia [GC],
no. 59532/00, § 68, ECHR 2006-III).
. In
the present case, the Court observes that the applicant raised his complaint
under Article 5 § 1 for the first time on 14 December 2011. It further observes
that after the applicant was arrested by the Russian authorities on 3 June 2010
pending his extradition to Kyrgyzstan, his detention was then prolonged on
several occasions, including by a court order of 2 December 2010 which extended
it until 2 June 2011. On the latter date the applicant’s detention pending
extradition to Kyrgyzstan came to an end upon the expiry of the statutory maximum
period. Thus, in so far as the applicant’s complaint concerned the formal
lawfulness of his detention during the period between 3 June 2010 and 2 June
2011, the Court finds that it was lodged out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
. It
further observes, as regards the applicant’s detention pending extradition to
Uzbekistan - which commenced on 2 June 2011, when the applicant’s detention was
ordered - that the events during the period from 31 August to 2
September 2011 are in dispute between the parties. According to the Government,
on the former date the applicant had been released and he had remained at
liberty until the latter date. The applicant argued that, once informed of a
prosecutor’s decision of 31 August 2011 to release him, he had immediately been
detained as a suspect under Article 91 of the Russian Code of Criminal
Procedure and placed in a temporary detention facility until 2 September 2011,
when a prosecutor had ordered his detention under Article 466 § 2 pending
extradition to Uzbekistan.
In that connection, the
Court reiterates that it is for an applicant complaining of an interference
with his rights under the Convention to provide prima facie evidence to this effect (see, among others, Z.M. and K.P. v. Slovakia
(dec.), no. 50232/99, 18 November 2003). In assessing evidence, the Court
adopts the standard of proof “beyond reasonable doubt”. Such proof may follow
from the coexistence of sufficiently strong, clear and concordant inferences or
of similar unrebutted presumptions of fact. The Court is sensitive to the
subsidiary nature of its role and 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 particular case.
. In
the present case, the applicant alleged that during the period under
examination he had been kept in detention. The Court observes that the
applicant never argued that he had been held in a legal vacuum. On the
contrary, the applicant averred that the authorities had detained him with
reference to Article 91 of the Russian Code of Criminal Procedure. The Court
notes that under the relevant national legislation a formal record should be
drawn up in respect of persons detained under that Article, who should sign it.
Also, such persons should be questioned and a transcript of their interview
should be drawn up (see paragraph 66 above). Therefore, assuming that the
applicant was detained on the basis of the aforementioned legal provision, as
alleged by him, he should, in principle, be in possession of copies of those
documents and could have submitted them to the Court to corroborate that
allegation. Moreover, the applicant submitted no documentary evidence to prove
that he had made any attempts to appeal to a court against his alleged
detention during the period under consideration, a possibility open to him
under domestic law (see paragraph 72 above). The Court finds it important to
note in this connection that, as is clear from the facts of the case, the
applicant was represented by a lawyer throughout the proceedings pending his
extradition to Uzbekistan, and he never alleged that he had been unable to
contact that lawyer at any moment during his alleged detention between 31
August and 2 September 2011.
. In
such circumstances, leaving open the question whether the applicant exhausted
domestic remedies in this regard, the Court notes the absence of any evidence
capable of forming an arguable basis for his complaint on this subject. It
therefore finds that this complaint has not been substantiated and must
be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
. The
Court further considers that, in so far as the applicant’s complaint concerned
the formal lawfulness of his detention pursuant to the
prosecutor’s orders of 2 June and 2 September 2011 and pursuant to the court
orders of 29 July and 31 October 2011 and 22 February 2012, it 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
(i) General principles
The Court reiterates that it falls to it in the
first place to examine whether the applicant’s detention was “lawful” for the
purposes of Article 5 § 1, with particular reference to the safeguards provided
by the national system. Where the “lawfulness” of detention is in issue,
including the question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to national law and lays down the
obligation to conform to the substantive and procedural rules of national law,
but it requires in addition that any deprivation of liberty should be in
keeping with the purpose of Article 5, which is to protect the individual from
arbitrariness (see Amuur v. France,
25 June 1996, § 50, Reports 1996-III).
The Court must
therefore ascertain whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied therein.
Where deprivation of liberty is concerned, it is particularly important that
the general principle of legal certainty be satisfied. In laying down that any
deprivation of liberty must be effected “in accordance with a procedure
prescribed by law”, Article 5 § 1 does not merely refer back to domestic law;
like the expressions “in accordance with the law” and “prescribed by law” in
the second paragraphs of Articles 8 to 11, it also relates to the “quality of
the law”, requiring it to be compatible with the rule of law, a concept
inherent in all the Articles of the Convention. “Quality of law” in this sense
implies that where a national law authorises deprivation of liberty it must be
sufficiently accessible, precise and foreseeable in its application, in order
to avoid all risk of arbitrariness (see Nasrulloyev v. Russia, no. 656/06,
§ 71, 11 October 2007, with further references).
(ii) Application in the present case
The Court has found admissible the applicant’s
complaint regarding the lawfulness of his detention pursuant
to the prosecutor’s orders of 2 June and 2 September 2011 and pursuant to the
court orders of 29 July and 31 October 2011 and 22 February 2012. It will
now address this issue.
(α) The applicant’s
detention from 2 June to 28 July 2011 and from 2 September to 30 October
2011
The Court observes that on 2 June and 2
September 2011 the Kuzminskiy Inter-District Prosecutor of Moscow remanded the
applicant in custody, relying on the Uzbekistani authorities’ extradition request
of 18 April 2011 and the arrest warrant of 14 September 2010 issued by an
Uzbekistani court. Subsequently, the applicant’s detention was extended on 29
July and on 31 October 2011 by the Kuzminskiy District Court. The Court must
ascertain whether the prosecutor’s detention orders constituted a sufficient
legal basis for the applicant’s detention between 2 June and 28 July
2011 as well as between 2 September 2011 and 30 October 2011.
In the above connection, the Court notes that in
both orders the prosecutor relied on Article 466 § 2 of the Russian Code of
Criminal Procedure (see paragraph 80 above) - a provision which enabled him to
place the applicant in detention without seeking confirmation of the validity
of his order from a Russian court, in view of the receipt by him of a request for the applicant’s extradition, accompanied
by a foreign court’s order to place the applicant in custody.
. The
Court doubts that the aforementioned legal provision, in itself, satisfies the
“quality of law” requirements mentioned in paragraph 140
above. Indeed, the provision remains silent on the procedure to be followed
when ordering or extending the detention of a person whose extradition is
sought; nor does it set any time-limits for that detention.
. The
Court notes the Government’s arguments that Article 466 § 2 of the Russian Code
of Criminal Procedure should be interpreted in the light of the Constitutional
Court’s decision of 4 April 2006 (see paragraph 81
above) and the Supreme Court’s ruling of 29 October 2009 (see paragraph 86 above), which made it clear that detention pending extradition was to be applied in accordance with the procedure and
within the time-limits established in Chapter 13 of the Russian Code of
Criminal Procedure, and, more specifically, Articles 108 and 109.
. In
this connection, the Court notes that the Constitutional Court’s decision
relied on by the Government contained no findings relating to situations
covered by Article 466 § 2 of the Russian Code of Criminal Procedure, and that the
Supreme Court’s ruling of 29 October 2009 did not clarify the matter, or refer
to any domestic legal provisions establishing, in particular, under which
conditions and by a prosecutor of which hierarchical level and territorial
affiliation the issue of detention was to be examined after the receipt of an
extradition request. Moreover, the Court has already found that Article
108 of the Russian Code of Criminal Procedure could not serve as a suitable
legal basis for a prosecutor’s decision to place an applicant in custody on the
ground that an arrest warrant had been issued against him by a foreign court (see
Dzhurayev, cited above, §§ 73-74, and Elmuratov, cited above, §§ 108-109).
. Furthermore,
it is significant that, in any event, the prosecutor’s orders under examination
in the present case (those of the Kuzminskiy Inter-District Prosecutor) did not refer to any domestic legal provision, be it
a provision of Chapter 13 of the Russian Code of Criminal Procedure or
otherwise, confirming the competence of that particular prosecutor to order the
applicant’s detention. Nor did the orders set any time-limit on the applicant’s
detention or refer to a domestic legal provision establishing such a time-limit.
. It
is true that, as pointed out by the Government, the Supreme Court’s ruling of
29 October 2009 established that the detention ordered by a prosecutor in
accordance with Article 466 § 2 of the Russian Code of Criminal Procedure
should not exceed two months, as required by Article 109 § 1 of that Code,
and that subsequently such detention should be extended in compliance with the
time-limits established by this latter provision (see paragraph 86 above). However, the Court is not
persuaded that the maximum time-limit provided for in Article 109 of the
Russian Code of Criminal Procedure should be applied implicitly each time when
an individual’s placement in custody is being authorised. Indeed, the Russian Constitutional Court emphasised on several occasions
that the national courts were under an obligation to set a time-limit each time
they were taking decisions under, inter alia, Articles 108 and 109 of
the Russian Code of Criminal Procedure on the placement of an individual into
detention or on the extension of a period of an individual’s detention (see
paragraph 84 above). Although
the period under examination, in itself, does not appear unreasonably long and might
be justified by the need for the authorities to ensure the proper conduct of
various measures in the context of an extradition check in the applicant’s
respect, the Court agrees with the Russian Constitutional Court that, however
short a period of detention may be, it should be clearly defined in a detention
order, this being an essential guarantee against arbitrariness (see, mutatis
mutandis, Fedorenko v. Russia, no. 39602/05, § 50, 20 September 2011).
. In
such circumstances, the Court does not consider that the prosecutor’s orders of
2 June and 2 September 2011 formed a sufficient legal basis for the applicant’s
detention in the periods from 2 June to 28 July 2011 and from 2 September to 30
October 2011. It therefore concludes that during these periods the applicant was
kept in detention without a specific legal basis. This is incompatible with the
principles of legal certainty and the protection from arbitrariness, which are
common threads throughout the Convention and the rule of law (see, mutatis
mutandis, Yudayev v. Russia, no. 40258/03, § 59, 15 January 2009, and Baranowski
v. Poland, no. 28358/95, § 56, ECHR 2000-III). The deprivation of liberty to which the applicant was subjected
during those periods was not circumscribed by adequate safeguards against
arbitrariness. 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 (f) of the Convention.
. Accordingly, there has been a violation of
Article 5 § 1 on that account.
(β) The applicant’s
detention from 29 July to 31 August 2011 and from 31 October 2011 to 1
June 2012
In contrast to some previous cases concerning Russia (see, among others, Dzhurayev, cited
above, § 68), the applicant’s detention between 29 July and 31
August 2011 as well as between 31 October 2011 and 1 June 2012 was extended by the
Russian courts. The extension orders contained time-limits that were in
compliance with the requirements of Article 109 of the Russian Code of Criminal
Procedure. The applicant faced serious charges in Uzbekistan in connection with
offences which were also punishable under Russian criminal law by a term of
imprisonment exceeding one year, on the basis of which his detention was
extended in accordance with Article 109 § 2 of the Russian Code of Criminal
Procedure.
It is true that the first-instance court
decision of 29 July 2011, by which the applicant’s detention was extended until
2 December 2011, was then quashed on appeal. However, the Court reiterates in
this connection that the mere fact that the order was set
aside on appeal did not in itself affect the lawfulness of the detention in the
preceding period. For the assessment of compliance with Article 5 § 1 of the
Convention a basic distinction has to be made between ex facie invalid
detention orders - for example, given by a court acting in excess of
jurisdiction or where the interested party did not have proper notice of the
hearing - and detention orders which are prima facie valid and effective
unless and until they have been overturned by a higher court (see, among many
other authorities, Khudoyorov v. Russia, no. 6847/02, § 129, ECHR
2005-X).
. It
has not been alleged that on 29 July 2011 the Kuzminskiy District Court of
Moscow acted in excess of its jurisdiction, or in bad faith, or that it
neglected to apply the relevant legislation correctly. Furthermore, the
applicant’s detention on the basis of that court order cannot be said to have
been arbitrary as the court gave certain grounds justifying his continued
detention pending extradition and fixed a time-limit for the detention (see
paragraph 49 above). The fact that certain flaws in the procedure were found on
appeal does not in itself mean that the detention on the basis of the court
order of 29 July 2011 was unlawful (see Khudoyorov,
cited above, § 132).
Overall, the Court notes that the applicant did not put forward any
serious argument either before the domestic courts or before it prompting the
Court to consider that his detention during the periods under examination was
in breach of the lawfulness requirement in Article 5 § 1 of the
Convention. It is in the first place for the national authorities, and notably
the courts, to interpret domestic law, including rules of a procedural nature. No
evidence has been submitted to the Court to indicate that there were any
failures by the domestic courts in this respect or that the applicant’s
detention during the periods under examination was not in compliance with the
procedure and time-limits established under domestic law.
The Court finds therefore that there has been
no violation of Article 5 § 1 as regards the lawfulness of the applicant’s
detention from 29 July until 31 August 2011 and from 31 October 2011 until
1 June 2012.
2. Length of the applicant’s
detention with a view to extradition
(a) Admissibility
The Court observes at the outset that it is
common ground between the parties that from 3 June 2010 until 31 August 2011
and from 2 September 2011 until 1 June 2012 the applicant was detained as
a person “against whom action [was] being taken with a view to deportation and
extradition” and that Article 5 § 1 (f) is therefore applicable in the present
case.
It further 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 extradition be reasonably considered
necessary, for example to prevent that person’s 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 expel can be justified under national law or the
Convention (see Čonka v. Belgium, no. 51564/99, § 38, ECHR 2002-I, and Chahal, cited above, § 112). 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).
. Turning
to the present case, the Court notes that, despite the fact that the applicant’s
release was ordered on 2 June 2011, upon the expiry of the statutory maximum
period of his detention with a view to extradition to Kyrgyzstan, the applicant
remained in custody on the basis of a prosecutor’s decision of the same date
ordering his detention pending extradition to Uzbekistan (see paragraph 46 above).
The Court, however, is not convinced that the applicant’s detention between 3 June
2010, when he was detained pending extradition to Kyrgyzstan, and 31 August
2011, when, according to the Government, he was released for the first time in
the proceedings pending his extradition to Uzbekistan, constituted a continuing
situation for the purposes of the assessment of its length, in so far as the
issue of due diligence under Article 5 § 1 (f) is concerned.
. In
this connection, the Court reiterates that from 3 June 2010 until 2 June
2011 the applicant was detained with a view to extradition to Kyrgyzstan,
whereas between 2 June 2011 and 1 June 2012 - excluding the period between 31
August and 2 September 2011 - he remained in custody pending extradition to
Uzbekistan. It is thus clear that the applicant was detained in the context of
two separate sets of extradition proceedings. Thus, in order to establish
whether the Russian authorities complied with the requirements of Article 5 § 1
(f) as regards the length of the applicant’s detention with a view to
extradition, the Court considers it reasonable to assess their conduct in
respect of each set of extradition proceedings separately. Indeed, it cannot be
ruled out in a situation such as the one in the present case that the
authorities might display due diligence in one set of extradition proceedings,
whilst remaining totally passive in another set of proceedings; this may lead the Court to reach different findings as to their compliance with Article 5 § 1 (f) in
respect of the periods of detention in issue, even if such periods, being
consecutive, form, on the face of it, one uninterrupted period of detention.
In the light of the foregoing, the Court finds
that the applicant’s complaint under Article 5 § 1 (f), in so far as it
concerned the length of his detention with a view to extradition to Kyrgyzstan,
which ended on 2 June 2011, was lodged out of time and
must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
It further considers that the applicant’s
complaint concerning the length of his detention pending extradition to Uzbekistan it is not manifestly ill-founded within the meaning
of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
(b) Merits
The Court has found it established that the
applicant remained in custody with a view to his extradition to Uzbekistan from 2 June until 31 August 2011 and from 2 September 2011 until 1 June
2012. The Court has been unable to establish, in the absence of any evidence,
that the applicant also remained in detention between 31 August and 2 September
2011. However, even assuming that the applicant was kept in detention
uninterruptedly from 2 June 2011 until 1 June 2012, that is, for twelve months,
this period does not appear excessive for the following reasons.
The Court observes first of all that between 2
June 2011, when the applicant was detained pending his extradition to Uzbekistan, and 19 December 2011, when his appeal against the extradition order was
rejected by a court in the final instance, the extradition proceedings were
pending. During that period the applicant was interviewed (see paragraph 33 above),
additional diplomatic assurances were submitted by the Uzbekistani authorities
(see paragraph 37 above), the Prosecutor General’s Office of Russia issued an
extradition order in respect of the applicant (see paragraph 35 above), and the
latter had it reviewed by the Russian courts at two levels of jurisdiction (see
paragraphs 36 and 38-40 above).
The Court further notes that, as stated above,
on 19 December 2011 the lawfulness of the extradition order was confirmed on
appeal. Although the domestic extradition proceedings were thereby terminated,
the applicant further remained in custody for more than five months, until 1
June 2012. During this time the Government refrained from extraditing him in
compliance with the interim measure indicated by the Court under Rule 39 of the
Rules of Court. The question thus arises as to whether the extradition
proceedings remained in progress between 19 December 2011 and 1 June 2012, such
as to justify the applicant’s detention with a view to extradition during that
period.
In accordance with the Court’s well-established
case-law, this latter period of the applicant’s detention should be
distinguished from the earlier period (see Chahal,
cited above, § 114; Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, §§ 49-51, 15 November 2011; and Al
Husin v. Bosnia and Herzegovina, no. 3727/08, §§ 67-69, 7 February 2012). As a result
of the application of the interim measure, the respondent Government could not
remove the applicant to Uzbekistan without being in breach of their obligation
under Article 34 of the Convention. During that time the extradition
proceedings, although temporarily suspended pursuant to the request made by the
Court, were nevertheless in progress for the purpose of Article 5 § 1 (f) (see,
for similar reasoning, Gebremedhin
[Gaberamadhien] v. France, no. 25389/05, §§ 73 and 74, ECHR 2007-II;
Al Hanchi, cited above, § 51; and Al Husin, cited
above, § 69). The Court has previously found that the fact that expulsion or
extradition proceedings are provisionally suspended as a result of the
application of an interim measure does not in itself render the detention of
the person concerned unlawful, provided that the authorities still envisage
expulsion at a later stage, and on condition that the detention is not
unreasonably prolonged (see Keshmiri v. Turkey (no. 2), no. 22426/10, § 34, 17 January 2012, and S.P.
v. Belgium (dec.), no. 12572/08, 14 June 2011).
The Court observes that, after the extradition
order in respect of the applicant became enforceable, he remained in detention
for over five months. That period does not appear to be unreasonably prolonged
(see, in respect of detention pending deportation on the grounds of a threat to
national security, Al Hanchi and Al Husin, both cited
above, where the periods of detention following the indication
of an interim measure by the Court, which lasted one year and ten months and
slightly more than eleven months respectively, were also found to be compatible
with Article 5 § 1 (f); and, by contrast, Keshmiri, cited above, §
34, where the applicant’s detention continued for more than one year and nine
months after the interim measure was applied, during which time no steps were
taken to find alternative solutions). It is also relevant that, as the Court
has established in paragraph 154 above, the applicant’s detention during that
period was in compliance with the procedure and time-limits established under
domestic law and that after the expiry of the maximum detention period
permitted under Russian law the applicant was immediately released (see, for similar reasoning, Gebremedhin,
cited above, §§ 74 and 75).
In view of the foregoing, the Court is
satisfied that the requirement of diligence was complied with in the present
case and the overall length of the applicant’s detention was not excessive.
Accordingly, there has been no violation of
Article 5 § 1 (f) of the Convention on that account.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article
6 § 1 of the Convention that the proceedings by which he sought to challenge
the lawfulness of the extradition order had been unfair.
The Court reiterates that
proceedings concerning the entry, stay and deportation of aliens do not concern
the determination of an applicant’s civil rights or obligations or of a
criminal charge against him, within the meaning of Article 6 § 1 of the
Convention (see, among other authorities, Maaouia v. France
[GC], no. 39652/98, § 40, ECHR 2000-X).
. It
follows that this part of the application is incompatible ratione materiae
with the provisions of the Convention, and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 thereof.
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 2,330,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested that amount as
excessive and suggested that the finding of a violation would constitute
sufficient just satisfaction in the present case.
The Court has found
violations of Article 5 § 1 of the Convention in the present case on account of
the unlawfulness of the applicant’s detention from 2 June to 28 July 2011 and
from 2 September to 30 October 2011. The Court accepts that the applicant has
suffered non-pecuniary damage which cannot be compensated for solely by the
finding of a violation. Therefore, the Court awards the applicant EUR 5,000
under that head.
B. Costs and expenses
The applicant also claimed EUR 23,063.25 for
the costs and expenses incurred before the domestic courts and before the
Court. He submitted an invoice listing actions taken by
his lawyer and indicating the corresponding amounts for those actions. The
invoice did not mention the applicant’s representative’s hourly rate, or the
overall number of hours spent on each particular action. The applicant also
submitted invoices from translators for the total amount of 23,000 Russian
roubles (approximately EUR 600).
The Government contested this claim as
unsupported by relevant documents, except for the invoices from translators.
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 3,000 covering costs under all heads.
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.
V. RULE 39 OF THE RULES OF COURT
The Court points out 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 the case under
Article 43 of the Convention.
It considers that the interim measure indicated
to the Government under Rule 39 of the Rules of Court on 18 May 2011 (see paragraph
4 above) must be lifted, whereas the interim measure indicated to the
Government under Rule 39 on 16 December 2011 (see paragraph 7 above) must remain
in force until the present judgment becomes final or until the Court takes a
further decision in this connection.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant’s complaint that
his extradition to Uzbekistan would expose him to a risk of ill-treatment, his
complaint about the lawfulness of his detention between 2 June and 31 August
2011 and between 2 September 2011 and 1 June 2012, and his complaint about the
duration of his detention with a view to extradition to Uzbekistan admissible
and the remainder of the application inadmissible;
2. Holds that the applicant’s extradition to Uzbekistan would not give rise to a violation of Article 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 1 of the Convention as regards the lawfulness of the applicant’s
detention from 2 June to 28 July 2011 and from 2 September to 30 October
2011;
4. Holds that there has been no violation of
Article 5 § 1 of the Convention as regards the lawfulness of the applicant’s
detention from 29 July until 31 August 2011 and from 31 October 2011 until 1 June
2012;
5. Holds that there has been no violation of
Article 5 § 1 (f) of the Convention as regards the applicant’s detention with a
view to extradition to Uzbekistan;
6. Decides to lift the interim measure
indicated to the Government under Rule 39 of the Rules of the Court on 18
May 2011;
7. 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 to Uzbekistan until such time as the present judgment becomes final
or until further notice;
8. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted
into Russian roubles at the rate applicable at
the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
9. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 February 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
