CASE OF SHCHERBINA v. RUSSIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 5+5-1 - Right to liberty and security (Article 5-5 - Compensation) (Article 5-1 - Deprivation of liberty;Article 5-1-f - Extradition;Article 5 - Right to liberty and security);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Non-pecuniary damage - award
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1970 in the town of Kustanay, in the Kazakh Soviet Socialist Republic, a constituent member of the Soviet Union. From 1988 to 1990 he served in the Soviet Army in Vladivostok. In 1990 he enrolled as a student at the military academy in the town of Ryazan in Russia. When the Soviet Union was dissolved in 1991, Kazakhstan became an independent State. Under Kazakh law, all those who were permanent residents of Kazakhstan in 1991 acquired Kazakh citizenship. A similar law was enacted in the Russian Federation. In 1992 the applicant left the military academy and for personal reasons returned to Kazakhstan. He had a USSR passport and was married to a Russian woman. 6. In 1998 the applicant was convicted in Kazakhstan for armed robbery. According to him, he was wrongly accused and ill-treated by the investigating officers. He claimed that the conditions of his detention in Kazakhstan were very poor, that prison officials ill-treated him and other convicts, that he was subjected to discrimination as an ethnic Russian and that prison officials extorted money from him. 7. The applicant served part of the sentence in a prison and was later transferred to an “open colony”, where convicts could move around unguarded. In 2001, when he was on leave from the colony, he fled to Russia. He explains that he feared for his life and for the lives of his relatives. In Kazakhstan he was put on the wanted list. 8. Upon his arrival in Russia the applicant obtained a false Russian passport. He lived and worked in Russia under a false name using that passport. The applicant’s real identity was discovered in 2007; he was sentenced by a judge to a fine for forgery of an official document, but remained in Russia. 9. The applicant claims that he tried to regularise his residence status. In particular, he claims that he was eligible for Russian nationality, since in 1991 (when the law on Kazakh nationality was enacted) he had been residing in Russia, not Kazakhstan. 10. In 2007 the Kazakh authorities requested the extradition of the applicant to Kazakhstan. On 2 May 2007 the applicant was arrested and detained in Russia in connection with that request, but on 5 October 2007 he was released on the order of Judge K. No extradition followed. 11. It appears that some time later the Kazakh authorities renewed their request. On 28 February 2011 the applicant was detained again upon the orders of the Kaluga town prosecutor. 12. On 30 March 2011 the applicant challenged the detention order before the court. The case was received by Judge K. from the Sverdlovskiy District Court, who set the date of the first hearing for 8 April 2011. 13. At the hearing of 8 April 2011 the prosecutor challenged Judge K. on the ground that she had already participated in the examination of the applicant’s extradition case earlier, in 2007, when she had ordered his release. It is unclear whether the applicant or his lawyer objected to the replacement of the judge. 14. On 15 April 2011 Judge N. from the Sverdlovskiy District Court of Kostroma examined the applicant’s complaint and ruled that the prosecutor’s detention order of 28 February 2011 was unlawful. The District Court found that under Russian law a prison sentence handed down by a foreign court was not sufficient for a person to be detained without a detention order issued by a court in Russia. The District Court ordered the prosecutor to take measures in order to rectify the situation complained of. 15. At the same hearing the prosecutor filed a request with the District Court seeking the applicant’s detention pending extradition. The District Court examined it on the spot and ruled that the applicant was to be detained to prevent him from absconding. 16. On 28 April 2011 that detention order was quashed by the Kostroma Regional Court as unsubstantiated. The Regional Court noted, in particular, that in view of the applicant’s profile and his previous behaviour (namely, the fact that after his first arrest pending extradition in 2007 he had continued to live openly at his officially known address) there was no reason to suppose that he would flee. The applicant was released, and house arrest was imposed on him. He was required to stay at home during the night. 17. In the meantime, on 5 April 2011, the Deputy Prosecutor General ordered the applicant’s extradition to Kazakhstan. The applicant challenged that decision before the court. He referred to the facts which, in his view, made him eligible for Russian nationality. He also claimed that if he returned to Kazakhstan he risked being subjected to ill-treatment by the prison authorities. In support of this argument he invoked reports by various human rights defence groups and international organisations concerning the human rights situation in Kazakhstan, in particular in the area of the rights of prisoners. 18. On 6 May 2011 the Kostroma Regional Court, in the presence of the applicant and his lawyer, examined the applicant’s extradition case on the merits. In particular, it examined his allegations about the risk of illtreatment in Kazakhstan, the fact that he had been serving a sentence for an ordinary criminal offence and the fact that the Kazakh authorities had given assurances to the Russian authorities that he would not be illtreated. The extradition order was upheld. 19. On 4 July 2011 the Supreme Court of the Russian Federation upheld the decision of the Regional Court. It noted, in particular, that the applicant had been convicted of an offence which was not political in nature and had not tried to seek refugee status in Russia because of the alleged persecution, preferring instead to live there under another name. The fact that he had been granted leave from the colony was at odds with his allegations that he had been ill-treated there. The Supreme Court further examined reports by international organisations and NGOs on ill-treatment and poor conditions of detention in Kazakh prisons but concluded that they were not sufficient to show that the applicant personally ran the risk of ill-treatment. 20. In 2011 the applicant asked the Migration Service to grant him Russian nationality. He claims that it was not his first attempt to that end, but the case file contains no documents in support of his claim. The Migration Service replied that in view of his background (in particular, the fact that at the time of the collapse of the USSR his permanent place of residence was in Kazakhstan) he was not eligible for automatic conversion of his USSR passport to a Russian passport, and that he had not satisfied the formal criteria for lodging a naturalisation request. 21. The applicant challenged the refusal of the Migration Service in court. He claimed, in particular, that in 1991 he was studying in Russia and was therefore eligible for Russian nationality. On 28 July 2011 the Sverdlovskiy District Court of Kostroma dismissed his complaint. The applicant’s appeal against the decision of 28 July 2011 is still pending. 22. It is unclear whether or not the applicant has been extradited.