CASE OF SHAKUROV v. RUSSIA
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (Conditional);Non-pecuniary damage - award
Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1972 and lives in Yasnogorsk, the Tula Region (Russia). 6. In March 2002 the applicant, an officer in the Uzbek Armed Forces, left his military unit in Uzbekistan and went to Russia for employment-related reasons. He settled in the town of Yasnogorsk, in the Tula Region, some thirty kilometres to the north of Tula. Two years later his spouse and their two children, born in 1994 and 2000, moved over from Uzbekistan and subsequently obtained Russian citizenship. In 2007 the applicant’s spouse bought a house in Yasnogorsk. 7. Until 2007, for unspecified reasons, the applicant lived separately from his spouse and children. 8. On 30 July 2009 the Uzbek Ministry of Health recommended, at the applicant’s spouse’s request, that their elder daughter be admitted to a neurological hospital in Moscow in order to treat her neurological condition. The certificate stated that the child should be accompanied by her mother. 9. The applicant did not apply for Russian citizenship, as he explained, because he had lost his Uzbek national passport in 2002. Neither did he make any attempts to regularise his stay in Russia or to register his residence in the country between 2002 and 2010. 10. In the meantime, on 24 June 2002 the Uzbek authorities instituted criminal proceedings against the applicant under Article 287-3 of the Uzbek Criminal Code (“the UCC”) for desertion. The offence was punishable by up to five years’ imprisonment. 11. On 29 July 2002 the military prosecutor’s office of the Tashkent Command (“the military prosecutor’s office”) issued a bill of indictment and an arrest warrant against the applicant. On the same day the military prosecutor’s office suspended the investigation on account of the failure to establish the applicant’s whereabouts and put his name on a wanted list. 12. On 6 September 2002 the military prosecutor’s office issued a search warrant for the applicant. 13. On 9 November 2009 the military prosecutor’s office re-classified the charges against the applicant as aggravated desertion, punishable by five to ten years’ imprisonment, and charged him in absentia under Article 228-2 of the UCC. 14. On 27 October 2009 the Yasnogorsk District Department of the Interior (“the ROVD”) brought criminal proceedings against the applicant on suspicion of having threatened his spouse with death (Article 119-1 of the Russian Criminal Code, “the RCC”). On the same day the applicant was arrested and placed in remand centre no. 71/1. 15. On 29 October 2009 the Yasnogorsk District Court of the Tula Region (“the district court”) authorised the applicant’s detention at the request of the ROVD. The Yasnogorsk District Prosecutor’s Office (“the district prosecutor’s office”) backed up the request, referring, in particular, to the fact that the applicant was wanted for a crime committed in Uzbekistan. The district court ordered the applicant’s detention on the basis of Articles 99, 100 and 108 of the Russian Code of Criminal Procedure (“the CCrP”), stating as follows: “It can be seen from materials submitted to the Court that Mr Shakurov is suspected of a minor criminal offence carrying a penalty of up to two years’ imprisonment. He is unemployed, that he has no permanent income, and has not registered his residence in Russia. Therefore, the court agrees with the investigator that there are grounds to believe that, if at large, he, understanding the nature of the penalty he could face, may flee investigation and prosecution, continue criminal activities and put pressure on the victim and witnesses so that they alter their testimony, thus hindering the criminal proceedings”. The applicant did not appeal. 16. On 16 December 2009 the district court extended the applicant’s detention to 16 January 2010 on similar grounds, with reference to Articles 108 § 3 and 109 §§ 1 and 2 of the CCrP. The applicant did not exercise his right of appeal. 17. On 11 January 2010 the Justice of the Peace of the Yasnogorsk District discontinued the criminal proceedings against the applicant because of reconciliation between the parties, and ordered his immediate release. It is unclear whether the applicant was indeed released. On the same day he was placed in custody with a view to extradition (see paragraph 37 below). 18. In the meantime, on 27 October 2009 the ROVD received information concerning the criminal proceedings initiated against the applicant in Uzbekistan from their Uzbek counterparts. 19. On 4 November 2009 the district prosecutor interviewed the applicant. As can be seen from the questioning record, signed by the applicant, the applicant explained that he had left Uzbekistan in March 2002 as he had faced workplace discrimination “on account of his origins” from his commanding officers, who had refused to consider his resignation requests. He had arrived in Russia with a view to obtaining Russian citizenship and getting employment. He had applied neither for Russian citizenship, as he had lost his Uzbek passport, nor for political asylum or refugee status, as he had not been subjected to persecution on political grounds in Uzbekistan. He considered himself a Russian citizen. The applicant understood that the Uzbek authorities wanted him for military desertion. The prosecutor concluded as follows: “Presently, Mr Shakurov’s extradition to the law-enforcement authorities of Uzbekistan is precluded by the criminal proceedings brought under Article 119 § 1 of the RCC, which are pending against him in Russia”. 20. On 5 November 2009 at an interview with a deputy district prosecutor the applicant added that he had left the military service also because of the very low wages and discrimination from his senior colleagues due to his poor command of Uzbek. Discrimination on that ground had been very common at his workplace. Thus, the commanding officers had “fabricated” criminal cases against fifteen servicemen. The applicant feared that he would be tortured by Uzbekistan security forces in the event of extradition, since it was common practice. He intended to submit an asylum request as he feared persecution on the grounds of his nationality and language skills. He considered that the criminal proceedings pending against him in Russia and the fact that his spouse and children lived in Russia and were Russian citizens were obstacles to his extradition to Uzbekistan. 21. On 6 November 2009 the prosecutor’s office of the Tula Region (“the regional prosecutor’s office”) forwarded the extradition material to the International Legal Cooperation Unit of the Prosecutor General’s Office, stating as follows: “The measure of restraint with a view to ensuring Mr Shakurov’s possible extradition has not been applied to him because it is not necessary.” 22. On 23 or 25 November 2009 the Prosecutor General’s Office received a request for the applicant’s extradition from its Uzbekistan counterpart, dated 13 November 2009. The request was reasoned by the charges brought against the applicant under Article 288-2 of the UCC. Relying on Article 66 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”), the Uzbek authority assured its Russian counterpart that the applicant would not be extradited to a third country without the consent of the Russian Federation, that no criminal proceedings would be initiated and he would not be tried or punished for an offence which was not the subject of the extradition request and he would be able to freely leave Uzbekistan once the court proceedings had terminated and the punishment served. 23. On 30 November 2009 the Russian Prosecutor General’s Office asked the Prosecutor General’s Office of Uzbekistan to provide diplomatic assurances and conduct a check as to the applicant’s allegations of workplace discrimination and torture in the event of his extradition to Uzbekistan. 24. On 7 December 2009 the Russian Federal Migration Service (“the FMS”) stated that the applicant had neither applied to register his residence in the Tula Region nor to obtain migrant status or Russian citizenship. 25. On 10 December 2009 the Federal Security Service (“the FSB”) wrote to the regional prosecutor’s office stating that it saw no obstacles to the applicant’s extradition. 26. On 15 December 2009 a district military prosecutor of the Tashkent Command of Uzbekistan issued a statement in connection with the criminal proceedings pending against the applicant in Uzbekistan, which read as follows: “Following Mr Shakurov’s statement at the interview of 4 November 2009 [...], military prosecutors of the Tashkent command questioned the former commanding officer Mr S., the head of the human resources Mr K. and [some other] officers. They clarified that the unit servicemen had mainly spoken Russian. Servicemen who had not mastered Uzbek had not been subjected to discrimination. Mr Shakurov had spoken good Russian and Uzbek. During the period of his service, he had submitted only one request, dated 25 August 2000, whereby he had asked to extend his term of office until 24 November 2003. That request had been granted.” 27. On 21 December 2009 the Uzbek Prosecutor General’s Office assured its Russian counterpart that the criminal proceedings against the applicant had been conducted without discrimination on account of his ethnic origin, religion, language or social status and that, if extradited, the applicant would not be subjected to ill-treatment and his right to defend himself, including through legal assistance, would be secured. The criminal proceedings would be carried out in strict compliance with the Uzbek Code of Criminal Procedure and international treaties. 28. On 11 January 2010 the Yasnogorsk District Court ordered the applicant’s placement in custody with a view to extradition (see paragraph 37 below). 29. On 19 January and 3 February 2010 the Ministry of the Interior and the FSB informed the Prosecutor General’s Office that there were no obstacles to the applicant’s extradition to Uzbekistan. 30. On 24 June 2010 the Deputy Prosecutor General granted the extradition request. The prosecutor decided to extradite the applicant under charges of desertion, a crime punishable under Article 338-1 of the RCC. He noted that the statute of limitations for the offence had not expired either in Russia or in Uzbekistan. He further pointed out that, in line with the Minsk Convention and the CCrP, differences in the classification of the offence and its elements under the Russian and the Uzbek criminal law were not sufficient grounds for refusing extradition. The prosecutor also referred to the information provided by the FMS that the applicant was an Uzbek national who had not applied for Russian citizenship. The prosecutor concluded that there were no obstacles to his extradition to Uzbekistan. 31. On 6 and 14 July 2010 the applicant sought judicial review of the extradition decision. He stated, in particular, that his decision to leave the Uzbek army had been wrongly classified as desertion; that the statute of limitations for desertion had expired; that, since he had not mastered the Uzbek language, he had been discriminated against in Uzbekistan, in particular by superior colleagues who had told him he should learn Uzbek; that, if extradited, he ran the risk of being subjected to torture, a widespread practice in Uzbekistan, along with other human rights violations; that he had been permanently residing in Russia for over eight years and had no intention to return to Uzbekistan; that his spouse and children were Russian citizens and that his disabled daughter needed costly medical treatment, unavailable in Uzbekistan. 32. From 6 to 9 August 2010 the Tula Regional Court (“the regional court”) heard the applicant’s case in the presence of his lawyer. The applicant specified that he had left Uzbekistan for Russia in order to ensure his family’s well-being. He considered that after his departure, the Uzbek authorities had launched a search for him with a view to bringing him to justice for desertion. Uzbek policemen had threatened his spouse. He clarified that he would risk political persecution in the event of extradition for the reason that he had not mastered Uzbek, although he had studied it at school, and that he generally disapproved of the politics of Uzbekistan, although neither he nor his family had been politically or religiously active or persecuted. While in Russia, the applicant had used his USSR military officer’s professional card (удостоверение офицера СССР) as an identity document and, consequently, had had no need to apply for asylum or refugee status there. 33. On 9 August 2010 the regional court upheld the extradition decision and, relying on Articles 462 § 1 and 464 §§ 1-2 of the CCrP and Article 57 of the Minsk Convention, rejected the applicant’s appeal. The court established that the applicant had left Uzbekistan for purely economic reasons. Neither the applicant nor his extended family had been discriminated against or persecuted for political reasons in the requesting country. The alleged police threats towards his spouse were unsubstantiated. The Uzbek authorities had provided sufficient assurances that the applicant’s rights would be fully respected in the event of extradition. The statute of limitations for desertion had not expired either under the Uzbek or the Russian law. The applicant’s health was in a satisfactory condition and, as such, did not preclude him from being extradited. As regards the applicant’s family situation, the court stated the following: “Mr Shakurov’s argument that his departure from Uzbekistan in 2002 was motivated by the necessity to provide medical treatment for his child is unsubstantiated. As can be seen from medical certificate no. 490 appended to the case file, the Ministry of Health of Uzbekistan recommended the treatment [in Moscow] only on 30 July 2009 at the relatives’ request. Mr Shakurov’s children have been living with his spouse, who has been taking care of them”. 34. On 12, 16 and 31 August and 10 September 2010 the applicant and his legal counsel appealed against the first-instance judgment. They challenged the charges against the applicant, argued that the regional court had failed to take into account the circumstances which had prompted his departure from Uzbekistan, underlined that his spouse and children were Russian citizens and expressed a fear for his life in case of extradition. As to the applicant’s family life, the applicant’s lawyer argued as follows: “The first-instance court did not properly take account of the difficult family circumstances of [the applicant]: his daughter’s illness and disability status, the recommendation that her health care be sought in Russia, and the futility of [the applicant’s] retirement applications to the military command and insufficiency of the emoluments...” 35. On 30 September 2010 the Supreme Court of the Russian Federation (“the Supreme Court”) dismissed the points of appeal and upheld the first-instance judgment. The hearing was held by video link and the applicant was legally represented. The appeal court found that the lower court had issued a lawful and reasoned decision. It pointed out that the applicant had been prosecuted for the crime of desertion punishable both in Uzbekistan and Russia, that the statute of limitations had not expired and that the Uzbek authorities had furnished the necessary diplomatic assurances. The court relied on Chapter 54 of the CCrP. 36. On 11 January 2010 the district prosecutor submitted a request to place the applicant in custody with a view to extradition on the basis of Articles 108, 109 and 466 § 1 of the CCrP. 37. On 11 January 2010 the district court ordered the applicant’s placement in custody pending extradition. The applicant was kept in remand centre no. 71/1. Relying on Article 56 § 2 of the Minsk Convention and Articles 108, 109 and 466 § 1 of the CCrP, the district court stated as follows: “Under Article 287-3 of the UCC and Article 337-4 of the RCC, desertion is punishable by up to five years’ imprisonment. [...] Mr Shakurov is an Uzbek citizen. He has not applied to renounce his Uzbek citizenship. Mr Shakurov has not applied for political asylum or refugee status in Russia. He has not had access to data under the Russian official secrets legislation or data which could affect Russian national security interests. He has not been persecuted in Uzbekistan on political, racial or religious grounds or for any antisocial activity. [...] The criminal proceedings brought against him in Russia under Article 119 § 1 of the RCC were terminated on 11 January 2010 in view of the parties’ reconciliation. According to the materials submitted to the Court, the Prosecutor General’s Office should receive documents from the Uzbek law-enforcement authorities in support of the lawfulness of the arrestee’s extradition and carry out the extradition request. Given that the charges against [the applicant] constitute a crime both in Uzbekistan and Russia and that he previously absconded from the Uzbek investigation authorities, there are no grounds for denying his extradition under Article 464 of the CCrP”. The District Court did not set a time-limit for detention. 38. The applicant and his counsel lodged an appeal. They claimed, in particular, that the statute of limitations for his prosecution in Uzbekistan had expired, that the applicant had been living in Russia for over eight years and that his spouse and children were Russian citizens. The applicant asked the court to change the measure of restraint to an undertaking not to leave Russia or to quash it and grant him refugee status or political asylum. 39. On 10 February 2010 the regional court upheld the detention order on appeal, supporting the district court arguments with the following: “Pursuant to Article 8 of the Minsk Convention and Article 78 of the RCC, the running of the statute of limitations is suspended in the event that the accused is being searched for. Mr Shakurov is an Uzbek citizen and has not obtained Russian citizenship. His residence in Russia is not in compliance with domestic law and cannot be a ground for granting him Russian citizenship. He has not applied for political asylum or refugee status in Russia. [...] the court rejects as unsubstantiated the applicant’s argument that he was unaware of the charges brought against him in Uzbekistan, the institution of criminal proceedings against him and the search warrant issued for him there. His other arguments for appeal, such as his continuous residence in Russia and family situation, cannot be taken into account for the purpose of ordering detention pending extradition. The court observes that the district court committed no breaches of the CCrP which could necessitate the quashing of its decision”. 40. On 4 March 2010 the district court extended the applicant’s detention pending extradition to 11 May 2010, taking it to a total of four months. The court relied on Article 109 of the CCrP. The applicant and his lawyer attended the hearing. The court established that there were no grounds for altering the preventive measure, stating as follows: “According to the materials submitted to the Court, the Prosecutor General’s Office should receive documents confirming the lawfulness of the arrestee’s extradition from the Uzbek law-enforcement authorities and carry out the extradition procedure. Mr Shakurov is charged with an offence constituting a crime both in Uzbekistan and in Russia, he absconded from the Uzbek prosecuting authorities and no ground for denying extradition under Article 464 of the CCrP can be applied to his case. Mr Shakurov’s placement in custody as a measure of restraint was valid, lawful, well-grounded and conducted in compliance with the criminal-procedure laws. The circumstances under which the measure of restraint was imposed on Mr Shakurov have not changed.” 41. On 10 March 2010 the applicant submitted his points of appeal. He specified that his application for political asylum had been disallowed (see paragraph 61 below) and contested that he had absconded from the Uzbek law-enforcement authorities. He further reiterated his reasons for departing from Uzbekistan, such as his disapproval of the Uzbek political regime, discrimination against the Russian-speaking population and the ensuing lack of opportunity for his spouse to obtain a University degree, the absence of quality medical care and of educational prospects for the children, and a low standard of living. The applicant pursued his argument as follows: “I believe that the above-mentioned facts allow me to choose a place of residence for me and my family. I have always thought of Russia as my motherland (although I was born in Kazakhstan). I also ask the honourable court to consider that I have never been convicted, I have been officially married since 1993, my spouse is a Russian citizen, I have to provide for two underage children (one of whom has been suffering from a disability since childhood) who are also Russian citizens, and I have been permanently residing in Yasnogorsk (what else is needed to obtain Russian citizenship?). In view of the above, I ask you to quash the decision of the district court [to extend the detention term]. For, in the event of my extradition and unlawful conviction in Uzbekistan [...], I have rather substantiated reasons to fear persecution and I really fear for my life.” The points of appeal reached the regional court on 23 March 2010. 42. On 28 April 2010 the regional court dismissed the applicant’s appeal, addressing his arguments in full and rejecting them as unsubstantiated. The applicant’s lawyer attended the hearing. With reference to Article 109 of the CCrP and Article 34 of the Ruling of 29 October 2009 of the Russian Supreme Court, the regional court stated as follows: “Extending Mr Shakurov’s detention pending extradition, the [district] court put forward convincing arguments. In view of the material in its possession, the judges’ panel agrees with these arguments.... The personal situation of the accused, including his arguments for appeal, was taken into account by the [district] court. Although there is no information in the case file as to Mr Shakurov’s child’s disability, this fact cannot cast doubt on the validity of the court’s argument in favour of the extension of the detention term.” 43. On 6 May 2010 the district court extended the applicant’s detention to 11 July 2010, taking it to a total of six months. In doing so, the district court referred to Article 109 of the CCrP and provided similar reasoning as in its decision of 4 March 2010 (see paragraph 40 above). It also took into account the letter of the Uzbek Prosecutor General’s Office (see paragraph 22 above) and the applicant’s pending request for refugee status. The applicant and his lawyer attended the detention hearing. However, neither of them appealed. 44. On 7 July 2010 the district court extended the applicant’s detention to 11 September 2010 under Article 109 of the CCrP, taking it to a total of eight months. The hearing was held in the presence of the applicant and his legal counsel. They challenged the lawfulness of the charges pending against the applicant in Uzbekistan and claimed that Article 109 of the CCrP was inapplicable to his case since the applicant had not been charged with a serious criminal offence and thus could not be detained for more than six months under the CCrP. 45. With reference to the letter of the 13 November 2009 of the Uzbek Prosecutor General’s Office (see paragraph 22 above), the court considered that aggravated desertion was a serious crime punishable by up to ten years’ imprisonment under Article 228-2 of the UCC and Article 338-2 of the RCC. Therefore, Article 109 was applicable to the applicant’s case with a view to extending his detention above six months. The court also took note of the refusal of his refugee application by the FMS on 7 June 2010 (see paragraph 65 below). The court stated as follows: “As can be seen from the materials submitted to the court, Mr Shakurov has been charged with a criminal offence which is classified as serious both in the territory of Uzbekistan and in the territory of Russia. He has previously absconded from the Uzbek investigation authorities. Presently, the Russian Prosecutor General’s Office has granted the extradition request submitted by its Uzbek counterpart [...]. Mr Shakurov’s placement in custody as a measure of restraint was valid, lawful, well-grounded and conducted in compliance with the Russian criminal-procedure laws. The circumstances under which the measure of restraint was imposed on Mr Shakurov have not changed.” 46. On 12 July 2010 the applicant appealed against the first-instance decision. He challenged the validity of the extradition request, claimed that the Uzbek authorities had failed to prove that he had been timely informed of the charges pending against him and their subsequent re-classification as aggravated desertion. Lastly, he complained that the first-instance court had disregarded his personal situation. On 15 July 2010 the applicant’s points of appeal reached the district court. On an unspecified date, the district court submitted the file to the regional court, which was the appeal-instance court for the detention issue. It is likewise unclear when the file in fact reached the regional court. The regional court issued its decision on 18 August 2010. It is undisputed, however, that, having received the file, the appeal court issued its decision within three days, as required under the CCrP (see paragraph 75 below). 47. As indicated, on 18 August 2010 the regional court examined the applicant’s arguments and dismissed them as unsubstantiated. Both the applicant and his lawyer were present at the hearing. The regional court stated, inter alia, that the district court had taken its decision in compliance with Chapters 13 and 54 of the CCrP, the European Convention on Extradition of 13 December 1957 and the Minsk Convention. The district court had considered the extradition request to the extent that the international treaties and Chapter 54 of the RCC so allowed. The applicant’s personal situation had also been taken into account. In view of the above, the regional court concluded that: “Hence, as a result of real judicial review, the [district] court reasonably and rightly established that Mr Shakurov’s term of detention should be extended. At present, Mr Shakurov’s detention does not fall foul of Article 5 § 1 (c) of the European Convention [...] or Article 55 § 3 of the Russian Constitution, according to which individual rights and freedoms can only be restricted by a Federal Law in so far as it is necessary for the protection of the constitutional order, morals, health and legal interests of other citizens.” 48. On 8 September 2010 the district court, at the request of the Deputy Regional Prosecutor of 1 September 2010, extended the applicant’s detention to 11 November 2010, taking it to a total of ten months. Relying on Article 109 of the CCrP, the court provided similar reasoning as on 7 July 2010 (see paragraph 44 above). As an additional ground for extension, the court referred to the pending judicial review in respect of the Prosecutor General’s Office’s decision to grant the extradition request. The applicant and his legal counsel attended the hearing. 49. On 13 September 2010 the applicant submitted his points of appeal. Yet again, he challenged the charges brought against him in Uzbekistan and argued that the statute of limitations had expired. He referred to Article 464 §§ 1-4 of the CCrP. On 16 September 2010 the points of appeal reached the district court. On an unspecified date, the district court submitted the file to the regional court. Whereas it is unclear when the file reached the regional court, it remains undisputed that, having received the file, the appeal court issued its decision within three days, as required under the CCrP (see paragraph 75 below). 50. On 29 September 2010 the regional court dismissed the applicant’s appeal with similar reasoning as on 18 August 2010 and also referred to Article 5 § 1 (c) of the Convention, the European Convention on Extradition and the Minsk Convention. Relying on the ruling of 29 October 2009 of the Supreme Court, the regional court highlighted that in extending detention with a view to extradition, a court was to apply Article 109 of the CCrP, according to which detention can be extended to up to twelve months. The applicant did not attend the hearing but was represented at it. 51. On 8 November 2010 a deputy regional prosecutor requested to extend the applicant’s detention for another two months, taking it to a total of twelve months. The prosecutor took note of the refusal of the applicant’s asylum and refugee status requests (see paragraphs 61, 65 and 68 below), against which the applicant did not appeal. The prosecutor also pointed to the application of Rule 39 of the Rules of Court to the applicant’s case, stating as follows: “Up to present the European Court has not lifted Rule 39 of the Rules of Court and, therefore, Mr Shakurov cannot be extradited and should be remanded in custody in accordance with Article 109 of the CCrP.” The prosecutor requested to extend the applicant’s detention, inter alia, “with a view to ensuring his detention until the European Court of Human Rights examines his application and with a view to surrendering him to the Uzbek law-enforcement authorities for the purpose of prosecution.” 52. On 11 November 2010 the district court granted the prosecutor’s request and extended the applicant’s detention to 11 January 2011 under Article 109 of the CCrP. Both the applicant and his legal counsel attended the hearing. The applicant argued that the term of his detention pending extradition had started running on 4 November 2009 when the district prosecutor interviewed him following the receipt of information on the charges pending against him in Uzbekistan (see paragraph 19 above). The applicant’s lawyer asked the court to release the applicant since the term authorised under Article 109 of the CCrP had expired and Rule 39 of the Rules of Court had been applied to his case. The court established that the applicant’s placement in custody with a view to extradition had been ordered on 11 January 2010 and rejected the applicant’s argument as unsubstantiated. In extending the detention term, the court relied on Article 109 of the CCrP and gave similar reasoning as on 7 July 2010 (see paragraph 44 above). 53. On 17 and 18 November 2010 the applicant and his legal counsel introduced their points of appeal. They reiterated that the applicant’s term of detention with a view to extradition had started running on 4 November 2009 at the latest. Yet on 29 October 2009 the court deciding on the extension of his detention on criminal charges in Russia had been aware that the applicant had been wanted for a crime committed in Uzbekistan (see paragraph 15 above). In accordance with Article 109 § 3, detention could be extended beyond twelve months only in view of particularly serious charges, which was not his case. The prosecutor had wrongly construed Rule 39 of the Rules of Court as a ground for extending his detention pending examination of his application by the Court. Since the application of Rule 39 barred the applicant from extradition, his continuous detention was unlawful and contrary to Article 5 § 1 (f) of the Convention. The applicant had no intention to flee Russia and asked the appeal court to consider his family situation. 54. On 1 December 2010 the regional court dismissed the applicant’s and his lawyer’s points of appeal, who both attended the hearing. The regional court upheld the grounds for extending the applicant’s detention put forward by the district court and emphasised that his detention was not in breach of Article 5 of the Convention. The court established that the date of the applicant’s detention pending extradition had started running on 11 January 2010, reasoning as follows: “Contrary to the assertions of the [applicant’s] lawyer, the fact that the Uzbek law-enforcement authorities had been searching for Mr Shakurov for the purpose of prosecution was not the ground for the court’s order to place him in custody [on 29 October 2009]. The fact that the extradition check was launched when Mr Shakurov was being held in custody on criminal charges brought against him in Russia is no reason for calculating the term of his detention pending extradition from this date. Thus, pursuant to Article 465 of the CCrP, a foreign national who is being prosecuted or is serving a penalty for a crime committed in the Russian territory cannot be surrendered until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served. On 11 January 2010 the justice of the peace [...] terminated Mr Shakurov’s prosecution under Article 119 § 1 of the RCC [...], lifted the measure of restraint and released him. Thereafter the district prosecutor submitted a court request under Articles 97 § 2 and 466 of the CCrP to place Mr Shakurov in custody pending his possible extradition to Uzbekistan. On 11 January 2010 the district court granted the said request. Therefore, the term of Mr Shakurov’s detention with a view to extradition under Article 109 of the CCrP started running from this date.” 55. On 11 January 2011 the district prosecutor ordered that the applicant be released under house arrest for the reason that the maximum authorised detention term had expired and that Rule 39 of the Rules of Court had been applied to his case. The prosecutor relied on provisions of Chapters 13 and 54 of the CCrP, in particular Article 109 § 2. The applicant was released. 56. On 18 January 2011 the applicant appealed. 57. On 1 February 2011 the regional prosecutor’s office quashed the decision of 11 January 2011. 58. On the same day the district court discontinued the proceedings on the ground that the impugned decision had been quashed and the applicant had consequently recalled his complaint of 18 January 2011. 59. On 2 February 2011 the district prosecutor’s office ordered the applicant not to leave his town of residence. 60. On 15 January 2010 the applicant lodged a request for political asylum and refugee status with the FMS department in the Tula Region (“the regional FMS”). He submitted, in particular, that he disapproved of the politics of Uzbekistan and the low-quality medical care, that he had left Uzbekistan for work-related reasons and that he and his family had been discriminated against there, owing to their insufficient command of the Uzbek language. 61. On 22 January and 1 February 2010 the regional FMS stated that the applicant’s request for political asylum could not be processed in view of the visa-free regime between Russia and Uzbekistan. Consequently, the regional FMS advised the applicant to apply for refugee status. 62. On 17 February 2010 the applicant submitted an application for refugee status, as indicated. He provided the same reasoning as in the request of 15 January 2010. 63. On 12 March 2010, at an interview with a regional FMS officer, the applicant stated that in the event of his extradition to Uzbekistan he feared prosecution and imprisonment for desertion, a crime that he had not committed. 64. On 29 March 2010 the applicant submitted that the statute of limitations for desertion had expired and that he had not been notified of the launch of the criminal proceedings against him in Uzbekistan. 65. On 7 June 2010 the regional FMS rejected the applicant’s request for refugee status. The FMS found that the applicant faced no risk of persecution on account of his origin, religion, nationality or belonging to a particular social group. Discrimination that the applicant might face owing to his allegedly insufficient command of the Uzbek language did not amount to persecution on account of his origin. The applicant had left Uzbekistan for economic reasons. The FMS concluded that he did not wish to return to Uzbekistan so as to avoid prosecution for the crime with which he had been charged. The FMS also noted that since the applicant’s arrival in Russia in 2002 he had made no steps to claim refugee status until his arrest and subsequent detention with a view to extradition. 66. The applicant did not appeal against the above decision. 67. The applicant submitted two requests for temporary asylum, on 23 June 2010 and 18 January 2011. The second request emphasised the applicant’s risk of being subjected to torture as a result of politically motivated persecution in the event of extradition. He supported his argument with references to the systematic practice of torture described by international human rights reports. 68. On 12 July 2010 the regional FMS rejected his first application on the ground that the applicant’s health was in a satisfactory condition, that he did not require any medical care and that, in the event of his extradition to Uzbekistan, he would face no risk of being subjected to torture or ill-treatment, or being involved in an internal or international conflict. With reference to a report of the Ministry of Foreign Affairs no. 22201/3 fms of 4 March 2010 (№ 22201/3 фмс, “the MFA report”) and an information notice from the FMS on the socio-political and socio-economic situation in Uzbekistan of 23 April 2010 (“the information notice”), the regional FMS stated that there was no information as to the practice of ill-treatment in respect of persons extradited to Uzbekistan and those detained in Uzbek prisons. The notice emphasised ongoing reforms of the Uzbek judiciary and the abolition of the death penalty in the country as of 1 January 2008. It also specified that Uzbekistan had ratified over sixty international human rights treaties. Copies of the report and the information notice were not submitted to the Court. 69. The applicant did not appeal against the above decision. 70. On 26 April 2011 the regional FMS granted a year’s temporary asylum to the applicant, valid until 25 April 2012. The FMS reasoned that the Prosecutor General’s Office had allowed the extradition request, that Rule 39 of the Rules of Court had been applied to the applicant’s case and that, otherwise, his stay in Russia would remain irregular until the European Court delivered its judgment. 71. Everyone has a right to liberty and security (Article 22 § 1). Detention is permissible only on the basis of a court order. The length of time for which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2). 72. The term “court” is defined by the Code of Criminal Procedure (CCrP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54). 73. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 74. Chapter 13 of the CCrP governs the application of preventive measures. Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by at least two years’ imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A court request for detention is submitted by an investigator (следователь) with the support of the head of the investigative authority or by a police officer in charge of the inquiry (дознаватель) with the support of a prosecutor (Article 108 § 3). A request 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). 75. A judge’s decision on detention is amenable to appeal before a higher court within three days after its delivery date (Article 108 § 11 of the CCrP). A statement of appeal should be submitted to the first-instance court (Article 355 of the CCrP). While the CCrP contains no time-limit during which the first-instance court should send the statement of appeal and the case file to the appeal-instance court, Order no. 36 of 29 April 2003 by the Judicial Department of the Supreme Court of Russia requires that, “after the expiry of the three-day time-limit for appeal”, the first-instance court should submit the detention file to the higher court. Having received this file, second-instance courts should examine appeals lodged against the judge’s decisions on detention within three days (Article 108 § 11). 76. The period of detention pending investigation of a criminal case must not exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level. Further extensions up to twelve months may be granted with regard to persons accused of serious or particularly serious criminal offences (Article 109 § 2). Extensions up to eighteen months may be granted as an exception with regard to persons accused of particular serious criminal offences (Article 109 § 3). 77. A measure of restraint can be applied with a view to ensuring a person’s extradition in compliance with the procedure established under Article 466 of the CCrP (Article 97 § 2). 78. Chapter 54 of the CCrP (Articles 460-468) governs the procedure to be followed in the event of extradition. 79. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4). 80. 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 was granted asylum in Russia (Article 464 § 1-2); a person in respect of whom a conviction became effective or criminal proceedings were terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1-3); a person in respect of whom criminal proceedings cannot be launched and a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground under Russian law (Article 464 § 1-4); or a person in respect of whom a Russian court established obstacles to extradition, in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1-5). Finally, extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under the RCC (Article 464 § 1-6). 81. In the event that a foreign national, whose extradition is being sought, is being prosecuted or is serving a penalty for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served (Article 465 § 1). 82. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to “take measures” in order to decide on the preventive measure in respect of the person whose extradition is being sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). 83. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 84. Verifying the compatibility of section 31 § 2 of the Law on the Legal Status of Foreign Nationals in the USSR of 1981, the Constitutional Court ruled that a foreign national liable to be expelled from the Russian territory could not be detained for more than forty-eight hours without a court order. 85. Assessing the compatibility of Article 466 § 1 of the CCrP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 86. In the Constitutional Court’s view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is the procedure laid down in the CCrP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. 87. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or in excess of the time-limits fixed in the Code. 88. The Prosecutor General asked the Constitutional Court for official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition. 89. The Constitutional Court refused the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction. 90. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified. 91. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code. 92. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate constitutional rights of [the claimant] ...” 93. In Ruling no. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“the Ruling of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCrP, only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor’s request for that person to be placed in custody (paragraph 34 of the Ruling). In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCrP. 94. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCrP. 95. When carrying out actions requested under the Minsk Convention, to which Russia and Uzbekistan are parties, an official body applies its country’s domestic laws (Article 8 § 1). 96. 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 of at least one year (Article 56 § 2). 97. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is being sought, except in cases where no extradition is possible (Article 60). 98. 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 or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 99. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days of the date of placement in custody (Article 62 § 1). 100. For relevant reports on Uzbekistan in the period between 2002 and 2007, see Muminov v. Russia, no. 42502/06, §§ 6772, 11 December 2008. 101. The UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006 the following: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 102. 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...” 103. In November 2007 Human Rights Watch issued a report entitled “Nowhere to Turn: Torture and Ill-Treatment in Uzbekistan”, which 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...” 104. The UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008 the following: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials... ... 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002...” 105. Amnesty International issued on 1 May 2010 a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following: “Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ... Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ... Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners. According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other ill-treatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill-treatment remains the exception rather than the rule. Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible.” 106. In January 2011 Human Rights Watch released its annual World Report 2010. The chapter entitled “Uzbekistan”, in so far as relevant, states as follows: “Uzbekistan’s human rights record remains abysmal, with no substantive improvement in 2010. Authorities continue to crack down on civil society activists, opposition members, and independent journalists, and to persecute religious believers who worship outside strict state controls ... ... Criminal Justice, Torture, and Ill-Treatment Torture remains rampant in Uzbekistan. Detainees’ rights are violated at each stage of investigations and trials, despite habeas corpus amendments that went into effect in 2008. The Uzbek government has failed to meaningfully implement recommendations to combat torture that the United Nations special rapporteur made in 2003. Suspects are not permitted access to lawyers, a critical safeguard against torture in pre-trial detention. Police use torture and other illegal means to coerce statements and confessions from detainees. Authorities routinely refuse to investigate defendants’ allegations of abuse. ... Key International Actors The Uzbek government’s cooperation with international institutions remains poor. It continues to deny access to all eight UN special procedures that have requested invitations, including those on torture and human rights defenders ...” 107. The applicant referred to a document entitled “On Torture and Arbitrary Detention in Uzbekistan and Turkmenistan. Report to UN Special Mechanisms”, which was issued on 3 March 2011 by the World Alliance for Citizen Participation (CIVICUS). In so far as relevant, it stated the following: “[...] years after the special rapporteur on torture concluded that systemic torture exists in Uzbekistan, torture [...] continues to be a routine component of investigations and detention and is a common practice in the penal systems. Forms of torture include. • Bludgeoning with batons • Genital mutilation • Male and female rape and sodomy • Psychological humiliation and degradation • Electrocution ... Other at risk groups include: ... • Refugees and asylum seekers who are often deported from other CIS countries back to Uzbekistan...” 108. Chapter “Uzbekistan 2011” of the Amnesty International annual report 2011, released in May of the same year, in so far as relevant, states as follows: “Despite assertions by the authorities that the practice of torture had significantly decreased, reports of torture or other ill-treatment of detainees and prisoners continued unabated. In most cases, the authorities failed to conduct prompt, thorough and impartial investigations into these allegations. ... Uzbekistan again refused to allow the UN Special Rapporteur on torture to visit the country despite renewed requests”. 109. In support of his allegation of the risk of ill-treatment in Uzbekistan, in particular, poor conditions of detention and a lack of medical assistance in prisons, the applicant also referred to a news item available on the Internet site http://www.fergananews.com. This document described the case of Colonel Yuriy Korepanov, formerly a citizen of Uzbekistan who had taken Russian citizenship and had been prosecuted for treason in Uzbekistan. At a certain point after his conviction Mr Korepanov had suffered a stroke and had been transferred to another prison, without his family being informed thereof.