Постановление Европейского суда по правам человека от 08.07.2010 «Дело Абдулажон Исаков (abdulazhon isakov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ABDULAZHON ISAKOV v. RUSSIA
(Application No. 14049/08)
JUDGMENT*
(Strasbourg, 8.VII.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Abdulazhon Isakov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 11 May and 17 June 2010,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE
1. The case originated in an application (No. 14049/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by an Uzbek national, Mr Abdulazhon (also spelled as Abdullazhon) Isakov ("the applicant"), on 21 March 2008.

2. The applicant was represented by Ms S. Gannushkina and Ms E. Ryabinina, who were assisted by lawyers of the EHRAC/Memorial Human Rights Centre, an NGO with offices in London and Moscow. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that his detention by Russian authorities in view of his extradition to Uzbekistan where he faced politically-based persecution by the local authorities gave rise to violations of his rights under Articles 3, 5 and 13 of the Convention.

4. On 10 November 2008 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Russia, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice.

5. On 1 April 2009 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1963 and is currently detained in Tyumen.

7. The facts of the case, which were partially disputed by the parties, may be summarised as follows.

A. Information submitted by the applicant
1. Background information
(a) General information
8. In 1981 the applicant, who was born and lived in Uzbekistan, received an Uzbek passport. In 1989 he moved from Uzbekistan to Russia. From 1989 to 1995 the applicant resided on Shishkova Street, Tyumen, Russia.

9. It appears that in June 1995 the applicant officially informed the Uzbek authorities that he had changed his permanent residency from Uzbekistan to Russia. From 1995 to 2001 the applicant was officially registered as residing in Chikcha, the Tyumen Region. Since 13 March 2001 the applicant has been officially registered as residing on Doronina Street in Tyumen.

(b) Proceedings concerning the validity of the applicant's Russian passport
10. In December 2000 the applicant exchanged his USSR passport for a Russian passport in Department of the Interior No. 6 in the Tsentralniy district of Tyumen (ГОМ-6 УВД Центрального района Тюмени).

11. On 13 July 2005 the Passport and Visa Service of the Tyumen Regional Department of the Interior (the UVD) examined the validity of the applicant's Russian passport and stated that the document had been issued unlawfully, that it should be confiscated as invalid and that the applicant was not a Russian citizen.

12. On 14 March 2008 the Department of the Federal Migration Service of the Tyumen Region (the FMS) informed the Tyumen regional prosecutor's office that "...in 2005 the issuance of the Russian passport to A.M. Isakov was declared unsubstantiated as he was not a Russian citizen... the passport was declared invalid and it was supposed to be confiscated. However, as it has been impossible to establish A.M. Isakov's whereabouts, at the time of writing the passport has not been confiscated..."
13. On 15 August 2008 (the document is also dated 15 August 2005) the applicant complained to the Tsentralniy district court of Tyumen and requested that the decision of 13 July 2005 be overruled as unlawful. The applicant stated, among other things, that he was a Russian citizen and that he had not been informed about the decision concerning the invalidity of his passport until the hearing conducted on 27 March 2008 by the Tsentralniy district court on the issue of his detention pending extradition to Uzbekistan (see part 3, - "Extradition proceedings", below).

14. On 22 August 2008 the Tsentralniy district court refused to examine the applicant's complaint. The applicant appealed and on 29 September 2008 the Tyumen regional court overruled that decision and remitted the case for a fresh examination.

15. On 15 October 2008 the Tsentralniy district court again refused to examine the applicant's complaint.

16. The applicant lodged a civil claim challenging the validity of the decision of 13 July 2005. On 25 February 2009 the Tsentralniy district court rejected the claim, stating that the applicant had failed to substantiate his allegation that he had been a legal resident of Russia since 6 February 1992 and that therefore he could not be a Russian citizen.

17. On 20 April 2009 this decision was upheld on appeal by the Tyumen Regional Court.

2. Proceedings in Uzbekistan
18. On 12 June 1998 the Namangan regional prosecutor's office of Uzbekistan (the Namangan prosecutor's office) opened a criminal case against the applicant under Article 159 § 4 of the Uzbek Criminal Code (attempt to violently overthrow the State's constitutional order). The applicant was accused of "...actively participating in the subversive activities of an extremist movement... by conducting the holy war "jihad" ...to create an Islamic state".

19. On 29 June 1998 the applicant was charged in absentia and his name was put on the wanted list.

20. On 20 October 2003 the Namangan prosecutor's office brought additional charges against the applicant under Article 242 of the Uzbek Criminal Code (organisation of a criminal group and subversive activities). The applicant was charged in absentia. The decision also stated that the applicant should be arrested and his name should remain on the wanted list. The Uzbek courts did not issue orders for his arrest.

3. Extradition proceedings
21. On 6 March 2008 the applicant was arrested by officers of the Tyumen town department of the interior (the GUVD) on unknown grounds.

22. On 7 March 2008 the applicant was placed in FBU/IZ-72/1 ("the detention centre"). The decision to arrest the applicant and detain him in the detention centre was not authorised by a court.

23. On 27 March 2008 the Tsentralniy district court of Tyumen authorised the applicant's detention in view of extradition. The decision did not provide any time-limits for his detention.

24. On 7 April 2008 the Uzbek Prosecutor General's office officially requested the Russian Prosecutor General's office to extradite the applicant to Uzbekistan to be prosecuted as charged by the local authorities.

25. On 12 August 2008 the Russian Prosecutor General's office decided to extradite the applicant.

26. On 19 August 2008 the applicant was informed about the extradition order.

27. On 25 August 2008 (in the document the date was also stated as 25 August 2006) the applicant appealed against the extradition order to the Tyumen regional court. He stated, inter alia, that he was sought by the Uzbek authorities for alleged commission of political crimes and participation in an extremist religious movement. The applicant denied the accusations and stated that under Russian law the alleged religious activity was not prohibited.

28. On 30 September 2008 the Tyumen regional court rejected the applicant's complaint, stating, inter alia, the following:

"...in their extradition request the Uzbek authorities guarantee that the applicant will be prosecuted only for the crimes his extradition is requested for and that after the trial and the completion of his sentence he will be able to freely leave Uzbekistan and that he won't be extradited to a third country without the consent of the Russian Federation.

In addition, the Uzbek authorities guarantee that the applicant will not be subjected to torture in Uzbekistan and his constitutional rights will be respected...

...There are no circumstances precluding the applicant's extradition to the law-enforcement agencies of Uzbekistan or any grounds for its suspension...

...from the case file it follows that the Russian Ministry of Foreign Affairs and the Federal Security Service possess no information either concerning the applicant's persecution in Uzbekistan on political grounds or any other data which would preclude his extradition to Uzbekistan..."
29. On 5 October 2008 the applicant appealed against this decision to the Supreme Court of the Russian Federation (the Supreme Court). The applicant stated, inter alia, that the Tyumen regional court had ignored his allegations of a risk of ill-treatment in Uzbekistan; that his detention from 6 March to 27 March 2008 had not been authorised by a court; that the court order of 27 March 2008 authorising his detention pending extradition had not provided any time-limits; that the detention had been excessively long and its extensions had not been authorised by court orders.

30. On 10 November 2008 the European Court of Human Rights granted the applicant's request for the application of interim measures under Rule 39 of the Rules of Court to suspend his extradition to Uzbekistan.

31. On 22 December 2008 the Supreme Court upheld the decision of the Tyumen regional court and the extradition order. The ruling, inter alia, referred to the assurances provided by the Uzbek authorities that "...the Republic of Uzbekistan guarantees that A.M. Isakov will not be subjected to torture and that his constitutional rights in Uzbekistan will be protected". The Supreme Court did not examine any of the applicant's complaints concerning the lawfulness and the length of his detention pending extradition.

4. The applicant's asylum request
32. On 5 May 2009 the applicant applied to the Tyumen FMS requesting asylum, stating that the extradition order against him had been finalised, that the authorities had declared his Russian citizenship invalid and that he was being persecuted in Uzbekistan for his religious beliefs.

33. On 10 September 2009 the Tyumen FMS informed the applicant that on 7 September 2009 they had rejected his asylum request as it had been motivated by "...fear of lawful prosecution for a committed crime".

34. On 5 October 2009 the applicant appealed against that decision to the Russia FMS.

35. On 8 December 2009 the Russia FMS dismissed the applicant's appeal and upheld the decision of the Tyumen FMS.

36. On 21 January 2010 the applicant appealed against the decision of the Russia FMS to the Basmanniy district court of Moscow. The proceedings are still pending.

37. At the beginning of March 2010 the applicant applied to the Tyumen FMS with a request for temporary asylum.

38. On 17 March 2010 the Tyumen FMS granted the applicant temporary asylum in Russia for one year, stating, inter alia, that the measure had been applied in view of the examination of the applicant's case by the Court.

5. Proceedings concerning to the applicant's
requests for release
(a) The applicant's complaints to the administration of FBU/IZ-72/1
39. On 23 June 2008 the applicant complained about his detention to the head of the detention centre and requested to be released. He stated that his detention was unlawful as it had been neither authorised nor extended by court orders.

40. On 23 or 24 June 2008 the head of the detention centre refused to release the applicant and informed him that under Article 109 of the Criminal Procedure Code his detention pending extradition "would not exceed 18 months".

(b) The applicant's complaints to domestic courts
41. On 14 March 2008 the applicant complained to the Kalininskiy district court of Tyumen that his detention pending extradition was unlawful and requested to be released.

42. On 27 March 2008 the Tsentralniy district court of Tyumen decided to detain the applicant in view of his extradition to Uzbekistan. In its decision the court referred to Article 466 § 1 of the Russian Criminal Procedure Code ("the Criminal Procedure Code"). The decision did not provide time-limits for the detention.

43. On 1 April 2008 the Kalininskiy district court rejected the complaint, stating that the decision to detain the applicant did not contravene the regulations concerning detention on remand (Article 108 of the Criminal Procedure Code) and that it had already been authorised on 27 March 2008 by the Tsentralniy district court. The applicant appealed against this decision, stating, inter alia, that between 6 and to 27 March 2008 he had been detained without a court order.

44. On 6 May 2008 (in the submitted documents the date was also referred to as 15 April 2008) the Tyumen regional court dismissed his appeal. The court did not examine the issue of the lawfulness of the applicant's detention between 6 and 27 March 2008; it rejected the appeal for the same reasons as the ones stated in the decision of 1 April 2008.

45. On 28 August 2008 the applicant again lodged a complaint with the Kalininskiy district court challenging the lawfulness of his detention pending extradition. He pointed out that it had been more than five months since his arrest, but his detention had not been extended by domestic courts, in violation of Article 109 of the Criminal Procedure Code. The applicant further stated that his complaint to the head of the detention centre of 23 June 2008 had been rejected without a proper legal basis and requested the court to overrule the decision of the head of the detention centre.

46. On 4 September 2008 the Kalininskiy district court rejected the applicant's complaint, stating that the applicant should have appealed against the decision