CASE OF GARAYEV v. AZERBAIJAN
Violation of Art. 3 (in case of extradition);Violation of Art. 13;Violation of Art. 5-1-f
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1981 in Bukhara, Uzbekistan and is currently detained in a remand facility in Baku awaiting extradition to Uzbekistan. He holds a valid Uzbek passport and is considered to be a national of Uzbekistan by both the Azerbaijani and Uzbek authorities. The applicant, however, also claims to be an Azerbaijani national (see below). 7. The applicant's father, Firudin Garayev, of Azerbaijani ethnic origin, was born in 1953 in Beylagan, Azerbaijan. The applicant's mother, Olima Garayeva, of Uzbek ethnic origin, was born in 1960 in Bukhara, Uzbekistan. The applicant had an elder brother, Jeyhun Garayev, and a younger sister, Nargiz Garayeva. The family was living in Bukhara, Uzbekistan at the time the events described below took place. 8. On 21 December 2000 the applicant's entire family, including himself and his then twelve-year-old sister, were arrested in Bukhara on suspicion of killing six persons and mutilating their corpses. It appears that prior to the arrest the Uzbek law-enforcement authorities found remains of mutilated human corpses inside the house of the applicant's family and in a rubbish dump near their house. The applicant's mother was the primary suspect, while all the other family members were suspected of being accomplices. The applicant claimed to have been out of town at the time the alleged crimes were committed. 9. It appears from the case file that their arrest generated much media coverage in Uzbekistan. The media reports also allegedly included false rumours that the applicant's family had been engaged in the trafficking of human organs and even cannibalism. The ethnic origin of the applicant's father and his children was also usually mentioned. 10. According to the applicant, while in detention he and all his family members had been constantly subjected to torture and other forms of illtreatment with the aim of extracting confessions from them. They were kept in separate cells for most of the time. The applicant provided a very detailed account of the types of ill-treatment to which he had been subjected, which included, inter alia, various forms of beating, deprivation of food and drink, and suffocation. 11. It appears that, initially, no charges were brought against the applicant or most of his family members in connection with the murders and on various dates they were all released, with the exception of his mother, owing to lack of evidence. However, after the release all of the family (except the applicant's sister) were arrested again on various grounds. 12. After a few days in detention, the applicant was released on 26 December 2000 owing to lack of evidence in connection with his involvement in the murder. However, only a few minutes after his release, the applicant was stopped on the street by other police officers, who asked him for identity documents. The applicant was then taken to a police station where, after a body search, the police allegedly found some heroin concealed in his shoes. The applicant argued that the drugs had been planted on him by the police, as he had been released from detention only a few minutes earlier and would not have been able to acquire any heroin and hide it in the soles of his shoes during this extremely short time period, especially while suffering from the effects of ill-treatment and having had nothing to eat or drink since his initial arrest. 13. On 30 April 2001 the Tokhuculug District Court of Bukhara convicted the applicant of possession of illegal drugs and sentenced him to four years' imprisonment. He was not provided with legal assistance during these proceedings. 14. The applicant was released on 2 August 2001 following a presidential pardon. 15. On 27 November 2001 he left Uzbekistan with his sister and has lived in Azerbaijan since then. 16. In the meantime, by a decision of the Bukhara Regional Court of 20 November 2001, the applicant was charged with the murder of six persons and the mutilation of their corpses, under Articles 97 § 2 (aggravated murder) and 134 (abuse of corpse) of the Criminal Code of Uzbekistan. Moreover, by the same decision, the Bukhara Regional Court ordered the application of the preventive measure of remand in custody in respect of the applicant without fixing any term for detention. 17. On 6 August 2002 the Bukhara Regional Prosecutor's Office suspended the pre-trial investigation, finding that the applicant was at large, and declared a search for him in order to secure his presence at the place of investigation. 18. The applicant's father was released from detention on 29 December 2000 but was arrested again on the same day for alleged possession of heroin, in circumstances similar to the applicant's second arrest. On 20 November 2001 the Bukhara Regional Court convicted him of possession of illegal drugs and certain other offences and sentenced him to eleven years' imprisonment. 19. On the same day, 20 November 2001, the Bukhara Regional Court convicted the applicant's mother and brother of murdering six persons and mutilating their corpses, and sentenced each of them to fifteen years' imprisonment under Articles 97 § 2 and 134 of the Criminal Code of Uzbekistan. The court found that the applicant's mother, with the assistance of her eldest son and with the purpose of enrichment at the expense of the victims, had invited a family of her acquaintance to her home, poisoned and killed them, and thereafter dismembered and otherwise mutilated the corpses so that it would be easier to dispose of them. 20. In April 2004 the applicant's father was also convicted under Articles 97 § 2 and 134 of the Criminal Code of Uzbekistan. It was found that he had aided and abetted his wife and eldest son in the killings and mutilation of the victims' corpses. After a series of appeals, his conviction under Article 97 § 2 was quashed and the conviction under Article 134 upheld, and taking into account his previous conviction he was sentenced to a combined sentence of twenty years' imprisonment. 21. The applicant's brother died in prison on 12 February 2008 from heart and lung failure. According to the applicant, his brother's death was a consequence of many years of ill-treatment. 22. The applicant's father was released from prison in May 2008 following a presidential pardon and moved to Azerbaijan. 23. The applicant's mother was released from prison in October 2008, also following a presidential pardon, and moved to Azerbaijan in November 2008. 24. As mentioned above, the applicant has been living in Azerbaijan since 27 November 2001. It appears from the case file that the applicant entered the territory of Azerbaijan legally with his Uzbek passport. However, he had been entitled to stay in Azerbaijan for ninety days only and it appears that after this period he continued to live there without a residence permit. 25. On 9 April 2008 the applicant was arrested by the police in Beylagan on the basis of a search warrant issued by the Uzbek authorities. 26. On 10 April 2008 the Beylagan District Court ordered the applicant's detention with a view to extraditing him. The Beylagan District Court relied on the Bukhara Regional Court's detention order of 20 November 2001 and confirmed its findings. No fixed term for detention was specified, and it was noted that the applicant would be detained until an extradition decision had been given. The decision of the Beylagan District Court was subject to an appeal within three days of its delivery. However, the applicant did not appeal against that decision. 27. On 2 May 2008 the Deputy Prosecutor General of the Republic of Uzbekistan made a formal request for the applicant's extradition relying on the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993 (“the 1993 Minsk Convention”). 28. On 18 June 2008 the Prosecutor General of the Republic of Azerbaijan issued a decision on the applicant's extradition to Uzbekistan under the 1993 Minsk Convention. Inter alia, the decision stated that, according to the information provided by the Uzbek authorities, the applicant was a national of Uzbekistan and that, according to the information received from the Ministry of Internal Affairs of the Republic of Azerbaijan, he was not considered to be an Azerbaijani national in accordance with the Law on Citizenship of the Republic of Azerbaijan. 29. By a letter of 29 July 2008 the Prosecutor General's Office of the Republic of Azerbaijan asked the Uzbek authorities to give assurances in respect of the applicant's criminal case. By a letter of 31 July 2008 signed by the Deputy Prosecutor General of the Republic of Uzbekistan, the Uzbek authorities gave assurance that the criminal case against the applicant did not have any political or racial motivation, that the applicant would not be subjected to torture or any other inhuman treatment and that the applicant's defence rights would be ensured. It stated that, by a law of 11 July 2007 which entered into force on 1 January 2008, the death penalty had been abolished in Uzbekistan. It also added that the applicant would be allowed to leave Uzbekistan after serving his sentence and that he would not be handed over to a third State without the consent of the Republic of Azerbaijan. 30. Subsequently, the applicant was involved in two separate sets of proceedings by means of which he attempted to have the extradition order quashed. 31. After the applicant's father returned to Azerbaijan, he applied for an Azerbaijani national's identity card on the basis of the fact that he had been born in Beylagan, in the Azerbaijan SSR, and had lived in the Azerbaijan SSR until 1975. On 9 August 2008 the applicant's father was issued with an identity card confirming his citizenship. 32. Following his arrest on 9 April 2008, the applicant attempted to apply, through his representative, for an identity card of a national of the Republic of Azerbaijan, on the basis that his father was an Azerbaijani national. His application was rejected as he was obliged to apply for this identity card in person. 33. On an unspecified date the applicant lodged an action with the Absheron District Court, requesting the court to order the Absheron District Police Department to issue him with an Azerbaijani national's identity card. On 26 September 2008 the Absheron District Court allowed the applicant's request, noting that under the domestic law the applicant qualified as an Azerbaijani national by right of blood and instructed the Absheron District Police Department to issue him with an identity card. 34. On the basis of this judgment, and pending its entry into force, on 2 October 2008 the applicant was issued with a temporary identity document valid until 2 November 2008. It appears that, following the appeals mentioned below, the term of validity of this temporary identity document was not extended and that the applicant was never issued with an identity card of an Azerbaijani national. 35. The Absheron District Police Department lodged an appeal against the judgment of 26 September 2008, noting that the applicant was a national of Uzbekistan and that the only reason for his application for an identity card of an Azerbaijani national was to avoid extradition. 36. On 28 November 2008 the Sumgait Court of Appeal quashed the Absheron District Court's judgment of 26 September 2008, finding that the applicant was a foreign national and that he could not be issued with an Azerbaijani national's identity card unless he was granted Azerbaijani citizenship by the President of the Republic, under the Law on Citizenship of the Republic of Azerbaijan. 37. On 19 January 2009 the applicant lodged a cassation appeal against the Sumgait Court of Appeal's judgment of 28 November 2008. On 11 March 2009 the Supreme Court dismissed his appeal and upheld the judgment of 28 November 2008. 38. On 1 August 2008 (with an addendum on 11 August 2008), the applicant appealed to the Sabail District Court against the detention order of 10 April 2008 and the extradition order of 18 June 2008. In his appeal he argued, inter alia, that (a) his detention had no basis under the domestic law and the detention order of 10 April 2008 had unlawfully authorised his detention for an indefinite period; (b) he faced an imminent risk of torture and other forms of ill-treatment if extradited to Uzbekistan; (c) despite the authorities' unlawful refusals to issue him with citizenship documents, under the domestic law he was an Azerbaijani national by right of blood (as the son of an Azerbaijani national) and that therefore his extradition to a foreign country would be contrary to Azerbaijani law and the Minsk Convention. 39. On 3 October 2008 the Sabail District Court quashed the Prosecutor General's extradition order of 18 June 2008, having had regard to the Absheron District Court's judgment of 26 September 2008 which confirmed the applicant's claim to Azerbaijani citizenship (although the Absheron District Court's judgment never entered into force, by this time it had not yet been quashed by the Sumgait Court of Appeal). The Sabail District Court noted that the Prosecutor General's Office could appeal against this decision within a three-day period and, in order to allow time for such an appeal, ordered the applicant's release seven days from the delivery of the decision (on 10 October 2008). 40. The applicant was not released on 10 October 2008, seven days after the delivery of the decision of 3 October 2008. 41. On 10 October 2008 the Prosecutor General's Office lodged an appeal against the Sabail District Court's decision of 3 October 2008. Accompanying the appeal was a request to restore the three-day appeal period owing to the fact that the Prosecutor General's Office did not receive the decision until 8 October 2008. The applicant protested, arguing that the law on criminal procedure did not allow for restoration of the missed threeday period for appeals by the prosecution against court decisions concerning remand in custody. The applicant also claimed that the request for restoration of the three-day appeal period was unsubstantiated, because the representative of the Prosecutor General's Office had been present in the courtroom at the time the decision of 3 October 2008 was announced. 42. On 13 October 2008 the request to restore the appeal period was granted and the appeal of the Prosecutor General's Office was accepted. 43. On 23 October 2008 the Baku Court of Appeal quashed the Sabail District Court's decision of 3 October 2008. The Baku Court of Appeal held that the applicant was a national of Uzbekistan and that he had not been formally granted Azerbaijani citizenship. It noted that in upholding the applicant's citizenship claims the lower court had incorrectly relied on the Absheron District Court's judgment of 26 September 2008, which had not entered into force. Therefore, the Baku Court of Appeal upheld the validity of the extradition order of 18 June 2008 and quashed the Sabail District Court's decision on the applicant's release. However, the Court of Appeal's decision was silent as to the existence of the risk of torture or ill-treatment in the event of the applicant's extradition and as to the lawfulness of his detention with a view to extradition. 44. No appeals are available under domestic law against the Baku Court of Appeal's decision of 23 October 2008. 45. It appears from the case file that on 28 November 2008 the applicant applied for refugee status to the United Nations High Commissioner for Refugees in Azerbaijan. However, it appears that he did not receive any reply to his request. 46. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows: “No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...” 47. The preventive measure of remand in custody (həbs qətimkan tədbiri) is ordered by a court. The court's decision on remand in custody can be challenged before the court of appeal and the latter court's decision on this matter is final (Article 157.6). Pre-trial detention of defendants in criminal proceedings is subject to automatic review and may not exceed specific time-limits, set out depending on the gravity of charges (Articles 158-159). 48. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings could challenge acts or decisions of the prosecuting authorities before a court. Article 449 provides that the accused (or the suspected) person or his counsel can challenge acts or decisions of the prosecuting authorities concerning, inter alia, his or her arrest or detention. The judge examining the legality of the prosecuting authorities' acts and decisions can quash them if found to be unlawful (Article 451). 49. Chapter LVII of the CCrP deals with legal assistance in criminal matters. Article 495.1 provides that upon receipt of a request for extradition and a copy of a detention order from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures to have the person arrested and detained before the decision on extradition is taken. Article 496.1 provides that a person who is in the territory of the Republic of Azerbaijan shall be extradited by the prosecuting authority with a view to criminal prosecution or enforcement of a sentence, taking into consideration the requirements of Article 496.2-496.7 of the Code, on the basis of an official request for his extradition from the competent authority of the foreign State concerned. 50. A person detained with a view to extradition can challenge the prosecuting authorities' acts before courts. This action is examined under the procedure established in Articles 442-454 (Chapter LII; see above) of the CCrP (Article 495.5). Article 497.2 provides that a person detained “until the adoption of the decision on extradition” shall be immediately released if the prosecuting authority decides that the extradition is impossible or refuses to extradite him. 51. The Law on Extradition of 15 May 2001 deals with the questions concerning extradition of a person to a foreign State. According to this Law, the Assize Court examines the question of extradition of a person at the request of a foreign State (Article 8.1). The Assize Court's decision on extradition can be challenged in accordance with the provisions of the criminal procedural legislation (Article 8.2). 52. This Convention was signed on 22 January 1993 in Minsk and both Azerbaijan and Uzbekistan are parties to it. 53. Article 58 of the 1993 Minsk Convention provides that a request for extradition must be accompanied by, among other documents, a detention order (Article 58 § 2). Upon receipt of a request for extradition the requested State should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 54. The person whose extradition is sought may be arrested before receipt of a request for extradition, if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested before receipt of the extradition request, the requesting State must be informed immediately (Article 61 § 3). 55. A person arrested under Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1). 56. The chief prosecutors of the contracting States are responsible for dealing with matters concerning extradition and criminal prosecution (Article 80). 57. In his report (E/CN.4/2003/68/Add.2) submitted in accordance with Resolution 2002/38 of the United Nations (UN) Commission on Human Rights, the Special Rapporteur on the question of torture, Theo van Boven, described the situation in Uzbekistan as follows: “68. The Special Rapporteur believes, on the basis of the numerous testimonies (including on a number of deaths in custody) he received during the mission, not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations, that torture or similar illtreatment is systematic as defined by the Committee against Torture. Even though only a small number of torture cases can be proved with absolute certainty, the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process cannot be denied. The Special Rapporteur also observes that torture and other forms of illtreatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.” 58. In March 2005 the UN Human Rights Committee considered the second periodic report of Uzbekistan under the International Covenant on Civil and Political Rights and adopted the following observations (CCPR/CO/83/UZB): “11. The Committee is concerned about allegations relating to widespread use of torture and illtreatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. It is a matter of further concern that no independent inquiries are conducted in police stations and other places of detention to guarantee that no torture or illtreatment takes place, apart from a small number of inquiries with external participation quoted by the delegation... 15. The Committee notes that while under domestic law individuals have access to a lawyer at the time of arrest, this right is often not respected in practice... 16. The Committee remains concerned that the judiciary is not fully independent and that the appointment of judges has to be reviewed by the executive branch every five years...” 59. In his 2006 report “Situation of human rights in Uzbekistan” (A/61/526) the UN Secretary General expressed his concern about the fate of individuals extradited or expelled to Uzbekistan: “48. The Human Rights Committee, in its concluding observations of 31 March 2005 (CCPR/OP/83/UZB), remained concerned about the high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the International Covenant on Civil and Political Rights. The Committee expressed concern at the definition of torture in the Criminal Code of Uzbekistan. In addition, the Committee pointed to the allegations relating to widespread use of torture and ill-treatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. The Government of Uzbekistan was due to submit follow-up information by 26 April 2006 on these issues in accordance with the request of the Committee. So far, no such information has been submitted to the Human Rights Committee.” 60. In November 2007 the UN Committee Against Torture considered the third periodic report of Uzbekistan (CAT/C/UZB/3) and adopted, inter alia, the following conclusions (CAT/C/UZB/CO/3): “6. The Committee is concerned about: (a) Numerous, ongoing and consistent allegations concerning routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings; (b) Credible reports that such acts commonly occur before formal charges are made, and during pre-trial detention, when the detainee is deprived of fundamental safeguards, in particular access to legal counsel. This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws; (c) The failure to conduct prompt and impartial investigations into such allegations of breaches of the Convention... 9. The Committee has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention... 11. The Committee remains concerned that despite the reported improvements, there are numerous reports of abuses in custody and many deaths, some of which are alleged to have followed torture or ill-treatment...” 61. In its report of November 2007 entitled “Nowhere to Turn: Torture and Ill-treatment in Uzbekistan”, the Human Rights Watch provides the following analysis: “Prolonged beatings are one of the most common methods used by the police and security agents to frighten detainees, break their will, and compel them to provide a confession or testimony. They often start beating and kicking detainees with their hands, fists, and feet and then continue using truncheons, filled water bottles and various other tools... Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it... Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees. After forcing an old-fashioned gas mask over the head of the victim, who in some cases is handcuffed to a chair, the oxygen supply is cut...” 62. The 2008 US Department of State Country Report on Human Rights Practice, released on 25 February 2009, provides the following information in relation to Uzbekistan: “Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Torture and abuse were common in prisons, pretrial facilities, and local police and security service precincts. Informants reported several cases of medical abuse, including forced psychiatric treatment. November 2007 reports by Human Rights Watch (HRW) and the UN Committee Against Torture (CAT) concluded that torture and abuse were systemic throughout the investigative process and had not improved since a 2003 UN Special Rapporteur on torture report drew the same conclusions. The CAT report stated that despite an amendment to Article 235 of the criminal code addressing elements of the definition of torture, punishment for violations was rare and did not reflect the severity of the crimes...”