EGMR

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2. Merits

68. For a summary of the relevant general principles emerging from the Court’s case-law see Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, §§ 66-70, ECHR 2005-I).

69. From the materials submitted by the parties it follows that the applicant was arrested in Russia and subsequently detained at the request of the Uzbek authorities, who suspected him of a number of crimes, including an attempt to overthrow constitutional order and dissemination of the views of a radical extremist movement. The Russian authorities commenced extradition proceedings against him. Throughout the proceedings the applicant claimed that his extradition to Uzbekistan would expose him to danger of ill-treatment. He also lodged an application for refugee status, reiterating his fears of torture and persecution for political motives. He supported his submissions with reports prepared by UN institutions and international NGOs describing the ill-treatment of detainees in Uzbekistan. he Russian authorities rejected his application for refugee status and ordered his extradition to Uzbekistan.

70. The Court’s task is to establish whether there is a real risk of ill-treatment in the event of the applicant’s extradition to Uzbekistan. Since he has not yet been extradited, owing to the application by the Court of an interim measure under Rule 39 of the Rules of Court, the material date for the assessment of that risk is that of the Court’s consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V, § 86).

71. As to the applicant’s allegation that detainees suffer ill-treatment in Uzbekistan, the Court has recently acknowledged that this general problem still persists in the country (see, for example, Ismoilov and Others v. Russia, no. 2947/06, §§ 120-121, 24 April 2008, and Muminov v. Russia, no. 42502/06, §§ 93-96, 11 December 2008). No concrete evidence has been produced to demonstrate any fundamental improvement in this area in this country for several years. Given these circumstances, the Court considers that ill-treatment of detainees is a pervasive and enduring problem in Uzbekistan.

72. As to the applicant’s personal situation, the Court observes that he was charged with politically motivated crimes. Given that an arrest warrant was issued in respect of the applicant, it is most likely that he would be placed in custody directly after his extradition and would therefore run a serious risk of ill-treatment.

73. As to the Government’s argument that assurances were obtained from the Uzbek authorities (see paragraph 16 above), it should be pointed out that even if the Uzbek authorities had given the diplomatic assurances requested by Russia, which were not submitted to the Court, that would not have absolved the Court from the obligation to examine whether such assurances provided, in practical terms, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi v. Italy [GC], no. 37201/06, § 148, ECHR 2008-...). Given that the practice of torture in Uzbekistan is described by reputable international sources as systematic (see paragraphs 59, 60 and 62 above), the Court is not persuaded that assurances from the Uzbek authorities offer a reliable guarantee against the risk of ill-treatment.

74. Accordingly, the applicant’s forcible return to Uzbekistan would give rise to a violation of Article 3 as he would face a serious risk of being subjected to torture or inhuman or degrading treatment there.

II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 4 OF THE CONVENTION

75. The applicant complained under Article 5 § 1 (f) of the Convention that his detention pending extradition had been unlawful and indefinite in its duration, in violation of the relevant provisions of the domestic law. The relevant parts of Article 5 § 1 (f) read as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

76. He also complained under Article 5 § 4 of the Convention that the domestic courts had failed to review the lawfulness of his detention. Article 5 § 4 of the Convention reads as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." [...]

82. It is common ground between the parties that the applicant was detained as a person "against whom action is being taken with a view to deportation or extradition" and that his detention fell under Article 5 § 1 (f). The parties dispute, however, whether this detention was "lawful" within the meaning of Article 5 § 1 of the Convention.

83. The Court observes that the applicant was detained in Russia under an arrest warrant issued by an Uzbek court. His detention was initially authorised by the Perm transport prosecutor’s office on 18 June and subsequently on 6 August 2008. Neither of the decisions provided time-limits for the applicant’s detention.

84. As for the Government’s reference that the applicant’s detention with a view to extradition to Uzbekistan had complied with the requirements of Article 466 of the Criminal Procedure Code, the Court notes that according to the decisions of the Constitutional Court no. 158-O of 11 July 2006 and no. 333-O-P of 1 March 2007 and the Ruling of the Plenary Session of the Supreme Court of the Russian Federation no. 22 of 29 October 2009, when dealing with matters concerning detention pending extradition Russian courts should comply with the requirements of Article 108 of the CCP and that detention with a view to extradition could be extended only in compliance with the requirements of Article 109 of the CCP (see paragraphs 53-56 above).

85. In a number of its recent judgments the Court has already found that the provisions of Russian law governing detention of persons with a view to extradition were neither precise nor foreseeable in their application and fell short of the "quality of law" standard required under the Convention (see, for example, Nasrulloyev v. Russia, no. 656/06, § 72, 11 October 2007; Ismoilov and Others, cited above, § 142; Muminov, cited above, § 122; and Khudyakova v. Russia, no. 13476/04, § 73, 8 January 2009).

86. The Court upholds the findings made in the above-mentioned cases and finds that, in spite of the Government’s references to the contrary, the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to extradition and setting time-limits for such detention, the deprivation of liberty to which the applicant was subjected was not circumscribed by adequate safeguards against arbitrariness. In particular, the Court observes that neither of the detention orders to which the applicant referred set any time-limit for his detention (see paragraphs 18 and 19 above). Under the provisions governing the general terms of detention (Article 108 of the CCP), the time-limit for detention pending investigation was fixed at two months. A judge could extend that period to up to six months. Further extensions could only be granted by a judge if the person was charged with serious or particularly serious criminal offences. However, upon the expiry of the maximum initial detention period of two months (Article 109 § 1 of the CCP), no extension was granted by a court in the present case. The applicant was detained pending extradition from 17 June 2008 until 23 April 2010, that is for more than twenty-two months. During that period neither any decisions concerning his detention were taken by the prosecutor’s office nor were any requests for extension of his detention lodged with domestic courts. Thus, the national system failed to protect the applicant from arbitrary detention, and his detention cannot be considered "lawful" for the purposes of Article 5 § 1 of the Convention.

87. In view of the above, the Court finds that the applicant’s detention during the period in question was unlawful and arbitrary, in violation of Article 5 § 1.

(b) Article 5 § 4 of the Convention

88. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII (extracts)). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, ?onka, cited above, §§ 46 and 55).

89. The Court is not persuaded by the Government’s argument that the applicant had obtained judicial review of his detention by complaining on 24 June 2009 that his detention was unlawful and he was able to obtain judicial review (see paragraph 23 above). The applicant sought to argue before the courts that his detention had ceased to be lawful after the expiry of the time-limit established by Article 109 of the Code of Criminal Procedure. By virtue of Article 5 § 4 he was entitled to apply to a "court" having jurisdiction to decide "speedily" whether or not his deprivation of liberty had become "unlawful" in the light of new factors which emerged subsequently to the decision on their initial placement in custody (see, mutadis mutandis, Weeks v. the United Kingdom, 2 March 1987, §§ 55-59, Series A no. 114).

90. The applicant’s complaint concerning the review of his detention was rejected by the domestic courts as incompatible with Chapter 13 of the Criminal Procedure Code, which provided for judicial review of complaints against measures of restraint conferring the standing to bring such a complaint solely to "the suspects and the accused against whom the Russian authorities initiated criminal proceedings". Tverskoy District Court refused to recognise the applicant’s position as a party to criminal proceedings on the ground that there was no criminal case against him in Russia and that the maximum terms of his detention pending extradition had not expired (see paragraph 24 above).

91. The Court notes that in their observations the Government did not suggest any avenues for the judicial examination of the applicant’s requests for the review of his detention other than vaguely referring to Chapter 16 of the Code of Criminal Procedure which regulated judicial complaints by parties to the criminal proceedings against unlawful actions of officials (see paragraph 46 above). However, in this regard Court would like to stress, leaving aside the vagueness of the Government’s reference to these provisions, that it has already found in a number of cases that Article 125 of the Code of Criminal Procedure cannot be considered as providing an avenue for judicial complaints by persons detained pending extradition (see Nasrulloyev, cited above, §§ 88-89, and Ryabikin v. Russia, no. 8320/04, § 139, 19 June 2008). In these cases the applicants were in similar situations, and it was established that they had no formal status under national criminal law because there was no criminal case against them in Russia, and they could not therefore have judicial review of the lawfulness of their detention pending extradition.

92. It follows that throughout the term of the applicant’s detention he did not have at his disposal any procedure through which the lawfulness of his detention could have been examined by a court. There has therefore been a violation of Article 5 § 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

93. The applicant alleged that the wording of the extradition decision of 18 September 2008 taken by the Russian Prosecutor General’s Office and the District Court’s refusal of 23 April 2010 to impose house arrest on him violated the presumption of his innocence. 94. The Government contested that argument.

95. The Court notes that the decision of 18 September 2008 to extradite the applicant and the court decision of 23 April 2010 clearly referred to the documents submitted by the Uzbek authorities by which he had been charged with the imputed offences and it was construed so as to describe the charges pending against the applicant in Uzbekistan (see paragraph 10 above). In such circumstances the Court does not consider that the statements by the Russian prosecutor’s office and the District Court amounted to a declaration of the applicant’s guilt, but rather described the “state of suspicion” which had served as the basis for the extradition request and the subsequent decision to extradite him (in contrast to Ismoilov, cited above, § 168; see also Kolesnik v. Russia, no. 26876/08, § 92, 17 June 2010 (not yet final)).

96. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. [...]