CASE OF EMINBEYLI v. RUSSIA
Remainder inadmissible;Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
6. The applicant was born in 1956 and lives in Sweden. 7. On 26 February 1996 the applicant arrived in Russia from Azerbaijan. In April 2001 he asked the St. Petersburg City Representation of the United Nations High Commissioner for Refugees to grant him refugee status. Four months later refugee status was granted and the applicant was informed of his right to move to Sweden. 8. On 10 September 2001 the acting chief of the Gyandzha Town police department of the Republic of Azerbaijan faxed a letter to the chief of the St. Petersburg City police department asking him to arrest the applicant. The letter read as follows: “[We] seek your order to arrest a criminal, [the applicant], wanted by us for having committed a crime (theft of State property) under Article 88-1 of the Criminal Code of the Azerbaijan Republic... criminal case no. 10/295. The arrest warrant and order for transport were issued on 29 May 1995 by the first deputy military prosecutor of the Azerbaijan Republic.” A translation of the arrest warrant of 29 May 1995 was attached to the letter. 9. On 13 September 2001 the Prosecutor General of the Russian Federation received a letter from the Moscow Regional Representation of the United Nations High Commissioner for Refugees, informing him about the applicant’s refugee status. The letter read as follows: “The Regional Representation of the United Nations High Commissioner for Refugees in the Russian Federation applies to you in connection with the case of Mr Gunduz Eminbeyli, which was examined by the UNHCR in July 2001, as a result of which [the applicant] was granted refugee status and was considered in need of international protection under the UNHCR mandate in the territory of the Russian Federation. In August 2001 Sweden accepted [the applicant] as a refugee with permanent leave to remain, in support of which he was given a travel document and issued with an entry visa for that country. As it follows from the information obtained by us, a federal search warrant was issued in respect of [the applicant] on the basis of the fact that the Azeri authorities accused him of having committed criminal actions; the [accusation] prevents him from leaving the Russian Federation. Due to the fact that [the applicant] is a proxy of the former Prime Minister of Azerbaijan, Mr S. Guseynov, who subsequently became a leader of the opposition to the Government of Mr G. Alieyev in Azerbaijan, and due to the fact that he worked with an Azeri national, Mr Z. Ismaylov, whose case was examined by the Prosecutor General’s office last summer, the UNHCR has grounds to conclude that the true reasons for the warrant issued by the Azeri authorities are [the applicant’s] work with and close ties to the above-mentioned Azeri political figures. As we were informed by the St. Petersburg City Department of Visas and Registration where [the applicant] lives and with whom he lodged his application for a visa, the Azeri authorities lodged a request for [the applicant’s] extradition. The UNHCR is concerned that if [the applicant] is expelled to Azerbaijan, there will be a danger of a violation of Article 33 § 1 of the UN Convention relating to the Status of Refugees... and of the Russian Law of 25 October 1999... by the Russian Federation. Article 33 of the Convention relating to the Status of Refugees forbids an expulsion of persons to a country where their lives and freedom will be threatened by a persecution on account of his race, religion, nationality, membership of a particular social group or political opinion.” The UNHCR Representation in Moscow sent a similar letter to the St. Petersburg City Prosecutor. 10. On 19 September 2001 police officers arrested the applicant pursuant to the faxed letter of 10 September 2001 and placed him in the temporary detention unit of the St. Petersburg City and Leningrad Region Department of the Interior (ИВС при ГУВД города Санкт-Петербурга и Ленинградской области). A police investigator issued a report on the applicant’s arrest. The report represented a two-page printed template, in which the dates, the applicant’s name, and the grounds for his arrest were filled in by hand. The relevant part read as follows (the pre-printed part in plain script and the part written by hand in italics): “I, [the police investigator], ... on the basis of the order of the prosecutor of the Republic of Azerbaijan Mr A. Aliyev., arrested an individual,[the applicant], born on 9 April 1956,... Reasons for the arrest Receipt of the prosecutor’s arrest warrant The arrested is brought to the police station no. 78 For that the present report is drawn up by [the police investigator’s signature]. Signature of the arrested person [the applicant’s signature].” The second page of the report contained information on the applicant’s body search. 11. The applicant insisted that he had not been informed about the reasons for his arrest and he had not been given a certified copy of the arrest warrant. He was later served with a translation of the warrant which was attached to the letter of 10 September 2001. The applicant further alleged that the conditions of his detention in the unit had been very poor. 12. On 20 September 2001 the Moscow Regional Representation of the UNHCR sent a letter, on the applicant’s behalf, to the head of the St. Petersburg police department, complaining about the applicant’s arrest with a view to extradition and seeking additional information on the case. 13. On 24 September 2001 the UNHCR Representation retained a lawyer, Ms O. Tseytlina, to represent the applicant. On the same day Ms Tseytlina arrived at the detention unit for a meeting with the applicant, but she was not allowed to see him. Two days later Ms Tseytlina complained to the St. Petersburg City Prosecutor that she had been barred from seeing her client. 14. On 1 October 2001 Ms Tseytlina lodged an application with the Dzerzhinskiy District Court of St. Petersburg seeking the applicant’s release and complaining that he had been unlawfully arrested and detained. A copy of the lawyer’s complaint bears the stamp of the Dzerzhinskiy District Court showing that it received the complaint on the same day it had been sent. On the following day Ms Tseytlina was allowed to visit the applicant. 15. The Government, relying on a letter issued by the deputy President of the Dzerzhinskiy District Court, submitted that on 9 October 2001 the District Court had forwarded Ms Tseytlina’s complaint to the St. Petersburg City prosecutor’s office finding that the Prosecutor General had the exclusive jurisdiction to examine extradition matters. Ms Tseytlina complained to the St. Petersburg City Court about the transfer of her complaint to the prosecution authorities. The City Court forwarded that complaint to the Dzerzhinskiy District Court. The District Court decided to examine the merits of the application for release and the lawyer’s complaints and fixed the first hearing for 20 December 2001. 16. On 5 October 2001 the Prosecutor General’s Office received a request for the applicant’s extradition from the Prosecutor General of the Azerbaijan Republic. The Azeri authorities stated that the applicant was suspected of having committed aggravated robbery with the aim of acquiring State property on 1 September 1993. 17. On 22 October 2001 the Prosecutor General of the Russian Federation, relying on Article 33 § 1 of the Convention relating to the Status of Refugees, dismissed the request for the extradition. The Prosecutor General stressed that the applicant had been granted refugee status and that he had been allowed to take up permanent residence in Sweden. The Prosecutor also noted that the St. Petersburg City Prosecutor’s office had been given an order for the applicant’s immediate release. 18. According to the Government, the Prosecutor General’s order reached the prosecutor’s office of the Tsentralniy District of St. Petersburg on 25 October 2001. The Tsentralniy District Prosecutor immediately authorised the applicant’s release. 19. On 5 November 2001 the applicant moved to Sweden. 20. On 20 December 2001 the Dzerzhinskiy District Court adjourned for one week the proceedings concerning the examination of the lawfulness of the applicant’s detention to allow the prosecutor to examine the case file. The following hearing listed for 27 December 2001 was also rescheduled for 4 February 2002 to obtain additional documents from the parties. 21. On 8 February 2002 the Dzerzhinskiy District Court dismissed Ms Tseytlina’s complaint concerning the applicant’s detention. The District Court held that the detention was lawful. The applicant was detained at the request of the Azerbaijani authorities with a view to his extradition. Criminal proceedings were instituted against him in Azerbaijan, he absconded and his arrest was authorised. The Azerbaijani authorities requested the applicant’s extradition in good time and submitted all necessary documents in compliance with the requirements of the Minsk Convention on Legal Assistance in Civil, Family and Criminal Cases of 22 January 1993. The applicant was released after the extradition request had been dismissed. 22. Mrs Tseytlina lodged an appeal statement. She complained that the applicant’s arrest had not been authorised as required by domestic law, that the faxed letter from the chief of the police department could not have served as the legal basis for the arrest, that the Russian authorities had not issued any detention order in respect of the applicant, that he had not been promptly informed about the reasons for his arrest and that there had been no legal grounds for the applicant’s detention between 22 and 25 October 2001. 23. On 26 February 2002 the St. Petersburg City Court upheld the decision of 8 February 2002. The City Court held: “... [The applicant], having permanent residence in the territory of Azerbaijan, was placed on the inter-State wanted persons’ list by the law-enforcement organs of the above-mentioned State as a person who had absconded from investigation. His remand in custody was authorised (the detention order of 29 May 1995). On 20 September 2001 [the applicant] was arrested on the basis of the warrant issued by the Republic of Azerbaijan with the view to his extradition in accordance with the Minsk Convention of 22 January 1993 on Legal Assistance in Civil, Family and Criminal Cases (thereafter – the Convention)... The Azerbaijani officials had submitted the request for the [applicant’s] arrest... on 10 September 2001 and, thus, the court correctly held that the [applicant’s] detention was lawful. ...the period of [the applicant’s] detention in the temporary detention unit of the St. Petersburg City and the Leningrad Region Department of Interior amounts to thirty-five days (between 20 September and 25 October 2001) and conforms to the requirements of Article 62 § 1 of the Minsk Convention, which indicates that a person arrested pursuant to Article 61 § 1 of the Minsk Convention shall be released if no request for extradition is received within one month of the arrest. The request of the Prosecutor General of Azerbaijan for [the applicant’s] extradition was received by the Prosecutor’s General office on 5 October 2001, fifteen days after [the applicant’s] arrest in St. Petersburg. [The applicant] was released on 25 October 2001 after the Prosecutor General of the Russian Federation ordered his release in connection with the decision refusing the request of the Prosecutor General of the Republic of Azerbaijan for his extradition.” 24. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 25. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Azerbaijan are parties, provides as follows: “When executing a request for legal assistance the requested authority should implement domestic legal norms. The State Party which seeks legal assistance may ask the other Party to use the legal norms of the requesting Party, if those norms do not contradict legal norms of the State Party providing legal assistance...” “1. The Contracting Parties shall ... on each other’s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” “1. A request for extradition shall include the following information: (a) the title of the requesting and requested authorities; (b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order....” “After a request for extradition is received, the requested Contracting Party immediately takes measures to retrieve and detain a person whose extradition is sought save for those cases when the person cannot be extradited.” “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition. The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax. 2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” “1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party.... 2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition. 3. A request for the search shall be accompanied by a certiﬁed copy of ... the detention order.... 4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.” “1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest. 2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.” “The requested Party shall notify the requesting Party of the place and time of surrender. If the requesting Party does not accept the person being extradited within fifteen days of the scheduled date of surrender, that person shall be released.” “Relations concerning extradition issues and criminal prosecution are performed by Prosecutor Generals (prosecutors) of the State Parties.” 26. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1. Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence. 2. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.” “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 27. The United Nations Convention relating to the Status of Refugees, adopted on 28 July 1951, provided as follows: “1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 28. The Federal Law “On refugees” (no. 4528-I of 19 February 1993) provided as follows: “1. The following basic definitions are applied for the purposes of the present Federal Law: 1) A refugee is a person who is not a national of the Russian Federation and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it... “1. A person... who is granted refugee status...cannot be expelled against his will to the territory of the State of his nationality (of his former permanent residence) if the conditions described in Article 1 § 1 (1) of the present Federal Law are still in force in that State...” 29. Article 4 of the Treaty between the Russian Federation and the Republic of Azerbaijan on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (“the 1992 Treaty”), adopted on 22 December 1992 (in force since 20 January 1995) provides that the State Parties effect legal relations through their respective Ministers of Justice and the offices of the Prosecutors General. 30. By virtue of Article 8 of the Treaty, each State Party applies its own law in order to carry out the other Party’s request for legal assistance. Only on an explicit request of another Party may a State Party to the Treaty apply another Party’s law in so far as it does not contradict the law of the latter Party. 31. Article 67 § 1 of the Treaty sets out the requirements for an extradition request. The request should contain the name of the requesting authority, an extract from the requesting Party’s law according to which an imputed act or omission constitutes a crime, the name of the person whose extradition is sought, information on his or her nationality, whereabouts, his photo and/or fingerprints where possible, and a reference to the estimation of the damage caused by the criminal offence. A certified copy of a decision on taking the person into custody with the statement of facts should be attached to the request. 32. Under Article 1 of the RSFSR Code of Criminal Procedure (the CCrP – in force at the material time) wherever a crime is committed, proceedings conducted on Russian territory are always governed by the Russian law on criminal procedure. 33. A decision to order detention can only be taken by a prosecutor or a court (Articles 11, 89 and 96 of the CCrP). 34. A prosecutor’s order or court decision ordering detention must be reasoned and justified (Article 92). The accused must be informed of the detention order and must have the procedure for lodging an appeal explained to him or her (Article 92). 35. An investigating authority should issue a report pertaining to each arrest. The report should include the following information: the grounds and reasons for the arrest, its date, time and place, the arrestee’s explanations, and the time when the report was drawn up. The investigating authority should transmit the report to a prosecutor within twenty-four hours. Within forty-eight hours following the receipt of the report, the prosecutor should authorise the person’s detention or release him (Article 122 of the CCrP).