Постановление Европейского суда по правам человека от 08.07.2010 «Дело Юлдашев (yuldashev) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF YULDASHEV v. RUSSIA
(Application No. 1248/09)
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 Yuldashev 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,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 17 June 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 1248/09) 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 Murod Yuldashev ("the applicant"), on 12 January 2009.

2. The applicant was represented 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 the Russian authorities with a view to his extradition to Uzbekistan, where he faced politically motivated persecution by the local authorities, gave rise to violations of his rights under Articles 3, 5 and 13 of the Convention.

4. On 13 January 2009 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 20 May 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
A. Background information
6. The applicant was born in Uzbekistan in 1972.

7. Prior to May 2005 the applicant lived and worked in Uzbekistan in a shoe factory. On 13 May 2005 the applicant and his colleagues attended a demonstration held on Bobur square in Andijan, Uzbekistan. The meeting was organised to protest against government policies. At some point the authorities opened fire on the protesters. The applicant managed to escape from the square. When he returned home his relatives told him that he was being sought by the Uzbek law-enforcement agencies on suspicion of organising the events in Andijan.

8. On 26 May 2005 the applicant fled to Russia fearing prosecution by the Uzbek authorities. He did not have a permanent place of residence in Russia.

B. Proceedings in Uzbekistan
9. On 2 June 2005 the Fergana Region Prosecutor's Office issued an arrest warrant in respect of the applicant for his alleged participation in the Andijan events. The applicant's name was put on a search list.

10. On 31 October 2007 the applicant was arrested in Russia (see paragraph 14 below).

11. On 7 November 2007 the applicant was charged in absentia with a number of crimes, including commission of terrorist acts, membership of extremist organisations, attempts to overthrow the State's constitutional order and organisation of mass disorder.

12. On 26 November 2007 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant to Uzbekistan for prosecution.

13. On 21 April 2008 the Uzbek Prosecutor General's Office reiterated its request for the applicant's extradition to the Russian Prosecutor General's Office, stating that "the prosecution of M.T. Yuldashev will be conducted in strict compliance with the Uzbek legislation".

C. Proceedings in Russia
1. Extradition proceedings
14. On 31 October 2007 the applicant was arrested in Krasnoyarsk, Russia, on the grounds that his name had been put on a cross-border wanted list by the Uzbek authorities.

15. On 28 April 2008 the Russian Prosecutor General's Office granted the request of the Uzbek authorities and decided to extradite the applicant to Uzbekistan.

16. On 20 May 2008 the applicant was informed about the extradition order.

17. On 10 October 2008 the applicant appealed against the extradition order to the Moscow City Court, stating, inter alia, that he was being sought by the Uzbek authorities for political crimes and that the Russian Prosecutor General's Office had disregarded his allegations that there was a real risk of ill-treatment if he was extradited to Uzbekistan. The applicant requested the court to overrule the extradition order as unlawful and to release him from detention.

18. On 26 December 2008 the Moscow City Court dismissed the applicant's appeal and upheld the extradition order. The court stated, inter alia, that the applicant's allegations that there was a risk of ill-treatment in Uzbekistan
"...were of a general nature and could not be taken into consideration during the examination of the specific information received in M.T. Yuldashev's case...

...the letter of the Prosecutor General's Office of Uzbekistan guarantees that the prosecution of M.T. Yuldashev will be conducted in strict compliance with the Uzbek legislation."
19. On 11 January 2008 the applicant appealed against this decision to the Supreme Court of the Russian Federation (the Supreme Court).

20. On 13 January 2009 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.

21. On 5 March 2009 the Supreme Court upheld the decision of the Moscow City Court and the extradition order became final.

2. The applicant's detention pending extradition
and his applications for release
22. On 31 October 2007 the applicant was arrested in Krasnoyarsk and on 1 November 2007 the Zheleznodorozhniy District Court of Krasnoyarsk authorised his detention pending extradition until "the issue concerning the extradition of M.T. Yuldashev to Uzbekistan has been resolved" and without providing any time-limits.

23. On 30 January 2008 the Zheleznodorozhniy District Court ordered the applicant's detention pending extradition to Uzbekistan under Article 466 § 1 of the CCP. No time-limits were provided for this detention.

24. On 2 November 2008 the applicant complained to the Moscow Prosecutor stating that his detention was both unlawful and excessively long. He requested to be released and stated that he had been detained for more than a year and that the prosecutor's office had failed to apply for an extension of his initial detention order of 1 November 2007. The Moscow Prosecutor replied to the applicant on 26 November 2008 stating that his detention "...could be repealed by a court only if the extradition decision of the Prosecutor General's Office is overruled..."
25. On 17 November 2008 (in the submitted documents the date was also referred to as 8 November 2008) the applicant complained to the Tverskoy District Court of Moscow. He stated that he had been detained for more than a year without any extensions of his detention by domestic courts and that the authorities had failed to examine the lawfulness of his detention.

26. On 16 December 2008 the Tverskoy District Court rejected the applicant's complaint for the following reasons:

"...under the provisions of Article 125 of the Russian Criminal Procedure Code... decisions and actions (omissions) [of authorities involved in criminal proceedings]... could be appealed against to the District Court...

...from the submitted materials it follows that...no investigation by the Russian authorities is being conducted against M. Yuldashev... all actions related to his arrest and detention were taken under the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 [the Minsk Convention]... and under Article 466 of the Russian Code of Criminal Procedure regulating the measures of restraint in... matters relating to extradition...

Under such circumstances this application cannot be examined under Article 125 of the Russian Criminal Procedure Code... which implies [only] the examination of complaints against officials lodged within the framework of a criminal investigation [being carried out] in the Russian Federation..."
27. On 24 December 2008 the applicant appealed against this decision to the Moscow City Court. He stated, inter alia, that the lawfulness of his detention had not been examined for more than a year and also stated the following:

"...[the Tverskoy District Court] groundlessly referring to the absence of a certain procedural status for the applicant in the Russian judicial system, deprived him of the possibility of re-examination of the length of his detention..."
28. On 18 March 2009 the Moscow City Court rejected the applicant's complaint and upheld the decision of 16 December 2008.

29. On 20 April 2009 the applicant again complained about his detention to the Tverskoy District Court and requested to be released. He stated that he had been in detention for almost eighteen months, that the length of his detention violated Articles 108 and 109 of the CCP and that the domestic courts had failed to review the lawfulness of his detention.

30. On the same date, 20 April 2009, the Tverskoy District Court rejected the applicant's complaint as "the object of the complaint did not fall within the requirements of Article 125 of the CCP".

31. On 2 May 2009 the maximum eighteen-month detention period laid down in Article 109 of the Russian Code of Criminal Procedure expired, but the applicant remained in detention.

32. On 2 May 2009 the applicant appealed against the decision of 20 April 2009 to the Moscow City Court. He stated that he had been detained on 1 November 2007 and that the term of his detention pending extradition was indefinite as it had not been extended by domestic courts. The applicant referred to Articles 108 and 109 of the CCP and the Constitutional Court's decisions No. 101-0 of 4 April 2006 and No. 333-OP of 1 March 2007.

33. On 29 July 2009 the Moscow City Court dismissed the applicant's appeal for failure to comply with the time frame for lodging an appeal.

34. On 20 August 2009 the applicant appealed through the supervisory review procedure to the Presidium of the Moscow City Court against the decision of 20 April 2009.

35. On 31 August 2009 the Presidium of the Moscow City Court dismissed the applicant's appeal.

36. On 28 September 2009 the applicant lodged an appeal with the Chairman of the Moscow City Court against the decision of 31 August 2009. On 12 October 2009 the City Court dismissed the applicant's appeal for failure to comply with the procedural requirements.

37. On 10 December 2009 the applicant requested the Russian Prosecutor General's Office to order his release, stating that his detention had exceeded the time-limit prescribed by the Criminal Procedure Code.

38. On 22 December 2009 the applicant appealed through the supervisory review procedure to the Supreme Court against the decision of the Moscow City Court of 12 October 2009. On 24 December 2009 the Supreme Court dismissed the appeal.

39. On 20 January 2010 the Russian Prosecutor General's office refused to order the applicant's release, referring to the application of the interim measure by the Court.

40. On 23 April 2010 the Babushkinskiy inter-district prosecutor's office ordered the applicant's release and on the same date requested the Babushkinskiy District Court to change the restrictive measure applied in respect of the applicant to house arrest and to transfer him to the detention centre for foreign citizens.

41. On 23 April 2010 the Babushkinskiy District Court refused to grant the request of the inter-district prosecutor's office and released the applicant from detention.

42. On 26 April 2010 the Babushkinskiy inter-district prosecutor's office ordered the applicant to sign an undertaking not to leave the area.

3. The applicant's requests for refugee status
and temporary asylum
43. On 11 August 2008 the applicant requested the Moscow Federal Migration Service (the FMS) to grant him refugee status in Russia. He referred to his politically-motivated persecution in Uzbekistan for alleged participation in the Andijan events in May 2005.

44. On 9 October 2008 the FMS refused to grant him refugee status, stating that "...there are no substantiated grounds for Mr M. Yuldashev to fear that he would become victim of political persecution in Uzbekistan..."
45. On 24 November 2008 the applicant appealed against the refusal to the Zamoskvoretskiy District Court of Moscow. Referring, inter alia, to the case-law of the European Court of Human Rights, the applicant complained that his allegations that there was a real risk of ill-treatment in Uzbekistan had not been duly examined by the FMS and requested that the decision of 9 October 2008 be overruled.

46. On 4 December 2008 the Zamoskvoretskiy District Court rejected the applicant's complaint and upheld the refusal. The applicant appealed to the Moscow City Court against this decision.

47. On 26 December 2008 the Moscow City Court upheld the District Court's decision, stating that
"...the applicant failed ...to provide convincing reasons demonstrating a well-founded fear that he would become a victim of political, racial or religious... persecution upon his return to Uzbekistan..."
48. On 28 September 2009 the Moscow FMS decided to examine the applicant's request for temporary asylum in Russia.

49. On 26 October 2009 the Russian Department of the UN High Commissioner on Refugees informed the Moscow FMS that the applicant's fear of politically motivated ill-treatment in Uzbekistan was well-founded and justified.

50. On 25 December 2009 the Moscow FMS rejected the applicant's request for temporary asylum on the grounds that there was no real risk of him being ill-treated in Uzbekistan.

51. On 11 February 2010 the applicant appealed against