CASE OF KADIRZHANOV AND MAMASHEV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicants are of Uzbek ethnic origin. They lived in the JalalAbad region of Kyrgyzstan. After mass disorders and inter-ethnic clashes in the region in June 2010, they left Kyrgyzstan for Russia to flee, together with many other ethnic Uzbeks, ethnically motivated violence. 7. Mr Kadirzhanov was born in 1970. He currently lives in Orel, Russia. 8. In July 2010 the applicant arrived in the town. Before June 2012 he had not lodged any applications for refugee status or temporary asylum. 9. On 3 October 2011 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in the course of the inter-ethnic violence of June 2010, when a group of individuals had barricaded a road near the village of Suzak, which had led to a number of deaths. 10. On 11 November 2011 the Suzak District Court ordered the applicant’s detention for two months. The Kyrgyz authorities also added the applicant’s name to an international wanted list. 11. On 14 May 2012 the applicant was arrested in Orel and placed in remand prison no. 1. It appears that he first learnt about the criminal prosecution and charges against him in Kyrgyzstan on that day. He denied his involvement in the June 2010 violence. On an unspecified date, the applicant was provided with the services of a State-appointed lawyer for the purposes of the extradition proceedings. 12. On 15 May 2012 the Severnyy district prosecutor of Orel ordered the applicant’s custodial detention on the basis of the decision of 11 November 2011, referring to Article 61 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). 13. The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition. 14. On 12 June 2012 the Kyrgyzstan Prosecutor General’s Office lodged a formal extradition request with its Russian counterpart. It submitted the following diplomatic assurances: that the applicant would be provided with every opportunity, as prescribed by international and Kyrgyz criminal law, to defend himself, including by way of legal assistance; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment; and that he would not be prosecuted on political, racial, ethnic or religious grounds. 15. On 15 June 2012 the Severnyy district prosecutor again ordered the applicant’s custodial detention, referring to Article 466 § 2 of the Russian Code of Criminal Procedure (“CCrP”). 16. On the same date the applicant applied to the regional migration authority for refugee status. 17. On 10 July 2012 the Severnyy District Court of Orel examined the Severnyy district prosecutor’s request to extend the applicant’s detention for four months. Noting that the prosecutor had not substantiated the need for such a long period by reference to specific measures to be taken during the “extradition check” procedure (экстрадиционная проверка) and noting the need to take account of the upcoming decision on the application for refugee status (which could bar further extradition proceedings), the judge extended the applicant’s detention for one month only, until 14 August 2012. On 25 July 2012 the Orel Regional Court upheld the extension order. 18. On 25 July 2012 the applicant’s lawyer made submissions to the Russian Prosecutor General’s Office in relation to, inter alia, the risk of illtreatment in the event of the applicant’s extradition to Kyrgyzstan. 19. On 9 August 2012 the Russian Ministry of Foreign Affairs wrote to the Russian Prosecutor General’s Office, indicating that it had no specific information disclosing any impediment to the applicant’s extradition. At the same time it indicated that because the applicant was of Uzbek ethnic origin “there could be a risk of premeditated biased attitude in the Kyrgyz authorities’ examination of his case”. 20. On 9 August 2012 the Severnyy District Court extended the applicant’s detention until 14 November 2012. The decision was upheld on appeal on 31 August 2012. 21. On 31 October 2012 the regional migration authority dismissed the applicant’s refugee status application. The authority relied on a note dated 13 July 2012 by the Federal migration authority on the general political and human rights situation in Kyrgyzstan in 2010-11. The applicant’s allegation that he had received threats from ethnic Kyrgyz while in Kyrgyzstan was dismissed, because the reason behind the threats had been his wealth, not ethnic origin. The applicant appealed to the Federal migration authority. On 25 December 2012 his appeal was dismissed. The risk of ill-treatment remained unassessed. 22. In the meantime, on 13 November 2012 the Severnyy District Court extended the term of the applicant’s detention until 14 February 2013, despite the lawyer’s request to release the applicant on bail. The Orel Regional Court upheld the decision on appeal on 28 November 2012 arguing, inter alia, that there was no reason to vary the preventive measure in accordance with Article 110 of the CCrP. 23. On 11 February 2013 the Severnyy District Court extended the applicant’s detention until 14 May 2013. The applicant lodged an appeal with the court on the same day. On an unspecified date the case was transferred to the Orel Regional Court for examination. 24. On 26 February 2013 the Orel Regional Court held an appeal hearing and, finding that there was no reason to vary the preventive measure in accordance with Article 110 of the CCrP, upheld the extension order of 11 February 2013. 25. In the meantime, on 20 February 2013 the Kyrgyzstan Prosecutor General’s Office amended its extradition request, with reference to the amended decision listing the charges against the applicant. 26. On 18 March 2013 the Russian Prosecutor General’s Office granted the extradition request. The extradition order contained no assessment of the factual and legal matters relating to the alleged risk of ill-treatment in the requesting country, and did not mention any of the diplomatic assurances given by the Kyrgyz authorities. 27. On 2 April 2013 the applicant appealed against the extradition order claiming, inter alia, that the Russian Prosecutor General’s Office had failed to assess the alleged risk of ill-treatment. 28. On 22 April 2013 the Basmannyy District Court of Moscow upheld the migration authorities’ decisions of 31 October and 25 December 2012. The risk of ill-treatment was not assessed. On 12 July 2013 the Moscow City Court upheld the judgment. 29. In the meantime, on 23 April 2013 the Orel Regional Court held a judicial review hearing against the extradition order and upheld it. It summarily dismissed the allegations regarding the risk of ill-treatment, referring to the assurances given by the Kyrgyz authorities and to the fact that the applicant had been charged with “ordinary crimes” and thus was not being persecuted on political or ethnic grounds. The applicant appealed to the Supreme Court of Russia. 30. In May 2013 the Orel regional prosecutor sought the extension of the applicant’s detention. The matter was submitted to the Orel Regional Court. 31. On 13 May 2013 the Orel Regional Court extended the applicant’s detention for six months, to reach the maximum statutory period of eighteen months on 14 November 2013. It found that there were no grounds to vary the preventive measure in accordance with Article 110 of the CCrP. The applicant appealed. 32. On 24 May 2013 the Appeal Section of the Orel Regional Court held a hearing and upheld the detention order. 33. On 4 July 2013 the Supreme Court of Russia confirmed the judgment of 23 April 2013, thus upholding the extradition order. It summarily dismissed the applicant’s arguments relating to the risk of illtreatment. The court also stated that the Kyrgyz authorities had provided guarantees relating to legal assistance and the absence of ill-treatment. 34. On 20 September 2013 the applicant’s lawyer, N., filed a request with the regional prosecutor’s office for the applicant’s release. 35. On 25 September 2013 the Orel regional deputy prosecutor ordered the applicant’s release from custody under, inter alia, Articles 103 and 110 of the CCrP. He reasoned that the examination of the case pending before the Court, which had indicated interim measures pursuant to Rule 39 of the Rules of Court in respect of the applicant, would last longer than the maximum period of detention permissible. The deputy prosecutor varied the preventive measure to release from custody, after a personal guarantee was given by N. The ruling was not challenged and the applicant was released from custody. 36. Mr Mamashev was born in 1984. He currently lives in Manyukhino, a village in the Moscow region of Russia. 37. The applicant arrived in Moscow in early August 2010. In 2010 and 2011 he did not lodge any applications for refugee status or temporary asylum in Russia. 38. On 24 August 2010 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in June 2010, when a group of individuals had barricaded a road near the village of Suzak, which had led to a number of deaths. The Kyrgyz authorities also added the applicant’s name to an international wanted list. 39. On 25 August 2010 the Suzak District Court in Kyrgyzstan ordered the applicant’s arrest and authorised his custodial detention for two months. 40. On 6 February 2012 he was arrested in Moscow and placed in a remand prison. It appears that he first learnt about the criminal prosecution and charges against him in Kyrgyzstan on that day. 41. On 7 February 2012 the Babushkinskiy inter-district prosecutor’s office applied the preventive measure of custodial detention to the applicant, which was authorised by the Suzak District Court on 25 August 2010. 42. On an unspecified date the applicant was provided with the services of a State-appointed lawyer for the purposes of the extradition proceedings. 43. On 16 March 2012 the Kyrgyzstan Prosecutor General’s Office submitted an extradition request to its Russian counterpart. The request contained the following diplomatic assurances: that the applicant would be provided with every opportunity, as prescribed by international and Kyrgyz criminal law, to defend himself, including by way of legal assistance; that he would not be extradited to a third country and would only stand trial in relation to the charges that gave rise to the extradition request; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment; and that he would not be prosecuted on political, racial, ethnic or religious grounds. 44. On the same date the Babushkinskiy inter-district prosecutor’s office again applied the Suzak District Court’s chosen preventive measure to the applicant, thus extending his custodial detention. 45. On 30 March 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 June 2012. 46. On 12 April 2012 the applicant applied to the Moscow migration authority for refugee status, arguing persecution on the grounds of ethnic origin. On 17 July 2012 the authority dismissed the applicant’s application at the admissibility stage. The Federal migration authority quashed this decision. His application was examined in October 2012. 47. In the meantime, on 18 April 2012 the Russian Ministry of Foreign Affairs wrote to the Russian Prosecutor General’s Office, indicating that it had no specific information disclosing any impediment to the applicant’s extradition. At the same time, it indicated that because the applicant was of Uzbek origin “there could be a risk of premeditated biased attitude in the Kyrgyz authorities’ examination of his case”. 48. On 23 April 2012 the applicant’s lawyer made submissions to the Russian Prosecutor General’s Office on the issue regarding the risk of illtreatment in the event of the applicant’s extradition to Kyrgyzstan. On 21 May 2012 it acknowledged receipt of the above-mentioned submissions and stated that they would be taken into consideration. 49. On 28 May 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 August 2012. The Moscow City Court dismissed an appeal against the decision on 9 July 2012. 50. On 8 June 2012 the Ostankinskiy District Court of Moscow dismissed complaints lodged by the applicant under Article 125 of the CCrP against the prosecutor’s decisions of 7 February and 16 March 2012. The Moscow City Court upheld the decision on 1 August 2012. 51. On 2 August 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 October 2012. The Moscow City Court upheld the decision on appeal on 10 September 2012. 52. On 1 October 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 December 2012. The applicant’s lawyer filed a statement of appeal dated 3 October 2012, which was registered by the Babushkinskiy District Court on 10 October 2012. On an unspecified date it was forwarded to the Moscow City Court. 53. On 11 October 2012 the Moscow migration authority examined the applicant’s refugee status application on the merits, but dismissed it for lack of evidence regarding the applicant’s allegations of possible persecution on the grounds of ethnic origin. The risk of ill-treatment was not assessed. The applicant challenged the refusal of 11 October 2012 before the Federal migration authority. His appeal was summarily dismissed on 26 December 2012. On an unspecified date he sought a judicial review of the refusals issued by the migration authorities. 54. On 4 December 2012 the Babushkinskiy District Court extended the applicant’s detention until 5 February 2013. On 6 December 2012 the applicant’s lawyer filed a statement of appeal, which was registered by the Babushkinskiy District Court on 13 December 2012. On an unspecified date it was forwarded to the Moscow City Court. 55. On 24 January 2013 the Russian Prosecutor General’s Office requested further guarantees from its Kyrgyz counterpart, in relation to the possibility of visits to the applicant by Russian diplomatic staff during his detention in Kyrgyzstan. On 6 February 2013 the Kyrgyzstan Prosecutor General’s Office submitted the required guarantees. 56. On 28 January 2013 the Moscow City Court heard appeals against the decisions of 1 October and 4 December 2012, but dismissed them. 57. On 1 February 2013 the Moscow City Court extended the applicant’s detention until 5 August 2013. It received the applicant’s appeal against this decision on 12 February 2013. The date on which it was filed remains unknown. 58. On 27 February 2013 the Russian Deputy Prosecutor General granted the extradition request. The extradition order did not contain any reasoning in relation to the alleged risk of ill-treatment in Kyrgyzstan. On 12 March 2013 the applicant was notified of the decision and appealed against it. 59. On 14 March 2013 the Appeal Section of the Moscow City Court dismissed the appeal against the decision of 1 February 2013. 60. By a judgment of 10 April 2013 the Basmannyy District Court of Moscow upheld the refugee application refusals issued by the migration authorities. The alleged risk of ill-treatment was not mentioned. 61. On 15 April 2013 the Moscow City Court upheld the extradition order on judicial review. It summarily dismissed the allegations regarding the risk of ill-treatment, stating that the applicant had been charged with “ordinary crimes” and thus was not being persecuted on political or ethnic grounds, and relied on the diplomatic assurances given by the Kyrgyz authorities. 62. On 19 June 2013 the Supreme Court of Russia upheld the judgment of 15 April 2013 on appeal, thus upholding the extradition order. 63. On 8 July 2013 the Moscow City Court confirmed the judgment of 10 April 2013 concerning the refusals issued by the migration authorities. It stated that the first-instance court had analysed the applicant’s situation sufficiently. 64. On 31 July 2013 the Babushkinskiy district prosecutor of Moscow ordered the applicant’s release because interim measures under Rule 39 of the Rules of Court had been indicated in respect of the applicant. The applicant was released on 1 August 2013 after a personal guarantee given by his lawyer.