CASE OF DZHURAYEV v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-4;Violation of Art. 5-1;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
6. The applicant was born in 1966 and lives in Tashkent, Uzbekistan. He is currently residing in Moscow. 7. In January 2005, when the applicant was living in Uzbekistan, a district court in Tashkent convicted him of being a member of the Islamic religious organisation Tablighi Dzhamaat, prohibited in Uzbekistan. The court ordered him to pay a fine in an amount equal to sixty times the minimum monthly wage. 8. The applicant paid the fine and continued to reside in Uzbekistan. However, according to him, he felt constant pressure from the lawenforcement agencies, which required him to report on all his actions and movements and, in case of delay or failure on his part, threatened to arrest his elder son. So as not to put his family in danger, on 6 December 2005 the applicant left Uzbekistan for Moscow. 9. In the meantime the Supreme Court of Uzbekistan quashed the decision of January 2005 on the ground that the sentence was too mild and remitted the case for fresh examination. 10. On 9 January 2006 the Sobir Rakhimovskiy District Court of Tashkent ordered the applicant to be remanded in custody. On that basis a cross-border search warrant for the applicant was issued. 11. On 26 January 2007 the applicant was arrested in Moscow on the basis of the cross-border search warrant. 12. On an unspecified date the Tashkent Department of the Interior sent the Meshchanskiy District Department of the Interior of Moscow a request to keep the applicant in custody and enclosed a copy of the Sobir Rakhimovskiy District Court's decision of 9 January 2006. 13. On 29 January 2007 the Meshchanskiy Inter-District Prosecutor's Office in Moscow issued a decision on application of a preventive measure and ordered that the applicant be placed in custody on the basis of the Uzbek court's decision of 9 January 2006. Article 61 of the Minsk Convention was cited as a legal source for application of the preventive measure. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against. On the same day the applicant was placed in remand prison SIZO-77/4, Moscow. 14. On 12 February 2007 the applicant applied to the Russian Prosecutor General's Office. He asked it to refuse the request of the Uzbek Prosecutor General's Office for his extradition and to release him from custody since he was charged with a crime that did not constitute a criminal offence under Russian law. 15. On 28 February 2007 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant. 16. On 23 March 2007 the Russian Prosecutor General's Office informed the applicant that no final decision had been taken in respect of the extradition and there were therefore no grounds to change the preventive measure applied in his case. 17. On 29 June 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a new decision to remand the applicant in custody pursuant to Article 466 § 2 of the CCP and Article 60 of the Minsk Convention. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against. Neither the applicant nor his counsel was provided with a copy of the decision. The applicant was not notified of it until 27 July 2007, in the remand prison, as confirmed by his signature on a copy of the decision. 18. On 23 August 2007 the Russian Prosecutor General's Office dismissed the request of the Uzbek Prosecutor General's Office for the applicant's extradition because the acts with which the applicant had been charged did not constitute a crime under Russian law. 19. On 28 August 2007 the Meshchanskiy Inter-District Prosecutor's Office received notification from the Russian Prosecutor General's Office that the Uzbek authorities' request for the applicant's extradition had been dismissed. 20. On 30 August 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a decision authorising the applicant's release. The applicant was released from the remand prison. 21. On 30 August 2007, immediately after his release, the applicant was conveyed by policemen to the Meshchanskiy District Court of Moscow. At the hearing held on the same date, the court found the applicant guilty of an administrative offence: breach by a foreigner of the rules on entry and stay in the territory of the Russian Federation. The court imposed a fine of 5,000 Russian roubles on the applicant and ordered his expulsion. The court also ordered that pending his expulsion the applicant should be held in the centre for detention of foreign nationals of the Moscow Main Directorate of Internal Affairs. The applicant appealed. 22. On 4 September 2007 the Court indicated to the respondent Government that the applicant should not be expelled to Uzbekistan until further notice. 23. On 11 September 2007 the Moscow City Court quashed the decision of the Meshchanskiy District Court and the applicant was released. 24. On 28 September 2007 policemen stopped the applicant in the Moscow underground in order to check his papers. It appeared that the applicant was still on the cross-border wanted list, and he was taken to a police station for a decision concerning his arrest. After his counsel arrived and clarified the applicant's situation, he was released. The applicant then applied to the Office of the Prosecutor General to be removed from the list. 25. On 1 October 2007 the Russian Prosecutor General's Office ordered the Ministry of the Interior to remove the applicant's name from the crossborder wanted list owing to the refusal to extradite him. 26. On 2 February 2007 the applicant applied to the Moscow Department of the Federal Migration Service for asylum. 27. On 16 March 2007 officials of the Moscow Department of the Federal Migration Service questioned the applicant in the presence of his counsel. 28. On 26 March 2007 the Moscow Department of the Federal Migration Service dismissed the applicant's application on the ground that he did not meet the requirements provided for in domestic law for granting asylum. The applicant lodged a complaint with a court. 29. On 23 August 2007 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's complaint. The applicant appealed. 30. On 18 October 2007 the Moscow City Court dismissed the appeal in the final instance. 31. On 13 November 2007 the applicant was recognised as a mandate refugee by the United Nations High Commissioner for Refugees. 32. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2). 33. The term “court” is defined by the Code of Criminal Procedure (CCP) 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 CCP as “an official empowered to administer justice” (Article 5 § 54). 34. 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). 35. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot 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 (Article 109 § 2). Further extensions may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 36. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 37. Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)). 38. 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). 39. When performing actions requested under the Minsk Convention, a requested official body applies its country's domestic laws (Article 8 § 1). 40. Upon receipt of a request for extradition the requested country 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). 41. 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). 42. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its constant caselaw 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. 43. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without respecting the procedure established in the CCP, or in excess of the time-limits fixed therein. 44. The Prosecutor General asked the Constitutional Court for an 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. 45. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction. 46. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure.