CASE OF ELMURATOV v. RUSSIA
No violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-4
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
5. The applicant was born in 1966 and lives in St Petersburg. 6. On several occasions (in 1988, 1992, 1994 and 1999) the applicant was convicted in Uzbekistan of disorderly conduct and attempted escape. In the applicant’s submission, in 1988, 1992, 1994, 1998, 1999, 2003 and 2004, while in the hands of Uzbek officials, he was subjected to illtreatment. 7. On 7 June 2004, in Uzbekistan, the applicant inflicted numerous cuts on himself and was placed in a hospital. He was discharged from the hospital on 16 June 2004. 8. In February 2008 the applicant arrived in Russia to look for work. He was registered as a migrant in St Petersburg. 9. On 28 March 2008 the Kumkurgan District Court of Uzbekistan ordered the applicant’s placement in custody under suspicion of having committed aggravated theft of cattle. 10. On 10 April 2008 an Uzbek investigator placed the applicant’s name on a wanted list. 11. On 27 April 2009 the applicant was arrested by Russian police at his place of residence in St Petersburg. 12. On 25 May 2009 the Uzbek Prosecutor General’s Office requested the applicant’s extradition. On 4 June 2009 the request was received by the Russian Prosecutor General’s Office. 13. On 28 September 2009 the Russian Prosecutor General’s Office decided to extradite the applicant to Uzbekistan. 14. On 12 October 2009 the applicant’s counsel lodged an appeal against the extradition order, arguing the following: proceedings concerning the applicant’s request for temporary asylum were still pending (see paragraphs 1821 below); the applicant’s extradition would entail a breach of Article 3 of the Convention because the Court had already found violations in the cases of Ismoilov and Others v. Russia and Muminov v. Russia involving extradition to Uzbekistan; according to independent international observers ill-treatment was widespread in the Uzbek prison system and fair trial guarantees were not respected. No reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan. 15. On 10 November 2009 the St Petersburg City Court dismissed the applicant’s appeal against the extradition order. It reasoned, in particular, that the applicant’s references to possible ill-treatment in Uzbekistan had been unsubstantiated and that the applicant had not argued that he might be persecuted on racial, religious, social or political grounds. 16. The applicant appealed against the decision of 10 November 2009, arguing that his submission that he would face ill-treatment in Uzbekistan had not been examined by the court. Again no reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan. 17. On 24 December 2009 the Supreme Court of Russia upheld the decision of 10 November 2009. It reasoned as follows: the applicant had absconded from the Uzbek authorities; the decision to arrest the applicant had been taken by a competent Uzbek court; the applicant was not a Russian national; the Uzbek Prosecutor General’s Office had guaranteed that the applicant would not be extradited to a third State or punished for another crime, and that he would be free to leave Uzbekistan when he had served his sentence; there were no reasons to reject the extradition request; the applicant’s allegations that torture of detainees was a widespread practice in Uzbekistan had not been substantiated; the applicant had not proved that he might be persecuted on the grounds of race, religion, membership of a social group, political convictions or anything else. 18. In July and September 2009 the applicant applied for asylum to the Federal Migration Service of St Petersburg Region (“the FMS”). In his application, dated 23 September 2009, he claimed that all detainees in Uzbekistan were kept in poor conditions. On 15 October 2009 he was interviewed by FMS officials. 19. On 21 October 2009 the FMS dismissed the applicant’s request; he was notified of the decision on 23 October 2009. 20. The applicant then applied for temporary asylum. On 24 December 2009 the FMS dismissed his request. 21. On 10 February 2010 the applicant appealed against the FMS decision, arguing for the first time before the Russian authorities that he had been ill-treated in Uzbek prisons while serving his previous sentences. 22. Following the applicant’s arrest on 27 April 2009 (see paragraph 11 above), on 28 April 2009 the prosecutor’s office of the Krasnogvardeyskiy District of St Petersburg (“the district prosecutor’s office”), relying on Article 61 of the Minsk Convention, ordered the applicant’s placement in custody pending extradition on the basis of the decision of 28 March 2008 by the Kumkurgan District Court of Uzbekistan (see paragraph 9 above). 23. On 16 June 2009 the district prosecutor’s office, referring to Article 466 § 2 of the CCP, issued a new decision authorising the applicant’s placement in custody pending extradition on the basis of the Uzbek court decision of 28 March 2008. 24. On 28 June 2009 the applicant complained to a court, referring to Decision no. 333-O-P of 1 March 2007 of the Constitutional Court and the Court’s case-law, that he had been unlawfully detained for more than two months and that the term of his detention had not been extended. 25. On 24 August 2009 the Krasnogvardeyskiy District Court of St Petersburg (“the district court”) examined the complaint about unlawfulness of detention. It reasoned that, pursuant to Article 466 § 2 of the CCP, a prosecutor could place a person in custody where a foreign court’s arrest warrant and a request for extradition existed. However, in the applicant’s case, the district prosecutor’s office had applied the preventive measure before the extradition request had been sent and thus had breached Article 466 § 2 of the CCP. At the same time, the second district prosecutor’s office’s decision to remand the applicant in custody had been taken after the extradition request had been received. The district court concluded that the district prosecutor’s office’s decision of 28 April 2009 was unlawful. Nonetheless, it refused to release the applicant, arguing that the decision of 16 June 2009 was compatible with domestic law and thus served as a legitimate ground for the applicant’s detention. It also noted that “[t]he provisions of the CCP do not establish terms for deciding on extradition issues and procedure for extension of the term of detention of persons in respect of which an extradition request has been received from a foreign State”. 26. Both the applicant and the district prosecutor’s office appealed against the decision of 24 August 2009. 27. On 19 October 2009 the St Petersburg City Court quashed the decision of 24 August 2009 for procedural defects and remitted the case for a fresh examination at the first level of jurisdiction. It also stated that the preventive measure applied to the applicant should remain unvaried, without citing any legal grounds for his detention or specifying its term. 28. On 10 November 2009 the St Petersburg City Court, while upholding the extradition order, extended the applicant’s detention for three months, that is until 9 February 2010. 29. On 8 December 2009 the district court discontinued the proceedings concerning the applicant’s complaint that his detention was unlawful, for the reason that the St Petersburg City Court had extended the term of detention until 9 February 2010. 30. On 24 December 2009 the Supreme Court of Russia, while dismissing the applicant’s appeal against the extradition request, touched upon the issue of lawfulness of the applicant’s detention in one sentence: “There are no reasons to doubt the lawfulness of Mr Elmuratov’s custodial detention pending his extradition”. 31. On 29 January 2010 the district prosecutor’s office requested a court to extend the term of the applicant’s detention for two months. 32. On 8 February 2010 the district court granted the prosecutor’s request in part. It reasoned that the applicant had been charged with very serious crimes, such as theft of cattle, and that Rule 39 of the Rules of Court had been applied in his case and concluded that there were no grounds for varying the preventive measure. The term of the applicant’s detention was extended until 9 April 2010. 33. On 27 February 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 December 2009, for the reason that the Supreme Court of Russia had ruled on 24 December 2009 that his detention pending extradition was lawful. 34. On 18 March 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 February 2010. 35. On 6 April 2010 the district court extended the term of the applicant’s detention until 27 April 2010, for the reason that he had been charged with serious crimes, did not have a permanent place of residence and thus could abscond or continue his criminal activities. 36. On 27 April 2010 the district prosecutor’s office ordered the applicant’s release from custody, for the reason that the maximum period of his detention had expired. 37. 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 must not exceed forty-eight hours (Article 22 § 2). 38. 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). 39. 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). 40. 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 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 (Article 109 § 2). Further extensions may be granted only if the person has been charged with serious or particularly serious criminal offences (Article 109 § 3). 41. 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). 42. 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 decide on the preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). 43. 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). 44. 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)). 45. Verifying the compatibility of Article 31 § 2 of the Law on Legal Status of Foreign Nationals in the USSR of 1982, 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. 46. Assessing the compatibility of Article 466 § 1 of the CCP 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. 47. 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 CCP. 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. 48. 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 CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP or in excess of the time-limits fixed in the Code. 49. 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. 50. The Constitutional Court dismissed 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. 51. 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. 52. 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. 53. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCP, 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] ...” 54. By a Directive Decision No.1 adopted by the Plenary Session of the Supreme Court of the Russian Federation on 10 February 2009, (“Directive Decision of 10 February 2009”) the Plenary Session issued several instructions to the courts on the application of Article 125 of the CCP. The Plenary reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke Article 125 of the CCP to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stated that whilst the bulk of decisions amenable to judicial review under Article 125 also included decisions to institute criminal proceedings, refusals to admit defence counsel or to grant victim status, a person could not rely on Article 125 to challenge a court’s decision to apply bail or house arrest or to remand a person in custody. It was further stressed that in declaring a specific action or inaction on the part of a law-enforcement authority unlawful or unjustified, a judge was not entitled to quash the impugned decision or to oblige the official responsible to quash it, but could only request him or her to rectify the shortcomings indicated. Should the impugned authority fail to comply with the court’s instructions, an interested party could complain to a court about the authority’s inaction and the latter body could issue a special decision [частное определение], drawing the authority’s attention to the situation. Lastly, the decision stated that a prosecutor’s decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under Article 125 of the CCP. 55. In a Directive Decision No. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“Directive Decision of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCP, 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 CCP and following a prosecutor’s request for that person to be placed in custody. 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 CCP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCP. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCP. 56. 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). 57. 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). 58. 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). 59. 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). 60. 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.” 61. 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 ...” 62. 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 ... 743. 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, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted. 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 ...” 63. 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 illtreatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other illtreatment 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. ... The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion. Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control.”