Постановление Европейского суда по правам человека от 29.07.2010 «Дело Каримов (karimov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF KARIMOV v. RUSSIA
(Application No. 54219/08)
JUDGMENT*
(Strasbourg, 29.VII.2010)
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*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 Karimov 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 6 July 2010,

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

PROCEDURE
1. The case originated in an application (No. 54219/08) 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 Abdumutallib Karimov ("the applicant"), on 13 November 2008.

2. The applicant was represented by Ms E. Ryabinina and Mr R. Zilberman, lawyers practising in Moscow and Yoshkar-Ola. 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 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 20 May 2009 the President of the First Section of the Court 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 1964 and lives in Yoshkar-Ola, the Republic of Mari-Al.

7. The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Proceedings in Uzbekistan
8. The applicant was born and used to live in Ayim, Uzbekistan. From 1997 to 2005 he owned a small grocery shop there.

9. On 13 May 2005 the applicant went to the town of Andijan to pick up merchandise from a wholesale market. On that date a demonstration was taking place in the town's Bobur square; the applicant decided to join the event. At some point the local authorities opened fire on the demonstrators. The applicant managed to escape, but lost his passport in the crowd. Fearing prosecution by the authorities for participation in the Andijan demonstration, he left the country.

10. On 18 June 2005 the Prosecutor General's Office of Uzbekistan charged the applicant in absentia with a number of crimes including commission of terrorist acts, membership of a number of extremist organisations including Hizb-ut-Tahrir, attempts to overthrow the State's constitutional order and organisation of mass disorder. The applicant's name was put on the wanted list. The prosecutor's office issued an arrest warrant against the applicant.

11. On 5 July 2008 the Prosecutor General's Office of Uzbekistan forwarded a request for the applicant's extradition to Uzbekistan to the Prosecutor General's Office of the Russian Federation.

12. On 2 August 2008 the Andijan regional prosecutor's office additionally charged the applicant with a number of crimes including conducting a holy war to create an Islamic state, financing terrorist activities, membership of extremist organisations and organisation of mass disturbances.

B. Proceedings in Russia
1. Proceedings concerning the obtaining of a false passport
13. On an unspecified date in June 2005 the applicant arrived in Yoshkar-Ola, the Republic of Mari-Al, Russia. From June 2005 to 11 June 2008 he lived with his brother, Mr Kh.K., and worked in the construction business.

14. On an unspecified date in 2007 the applicant obtained a false passport of a Kirgiz national.

15. On 19 June 2008 the Tsentralniy Department of the Interior of Yoshkar-Ola ("the Tsentralniy UVD") instituted criminal proceedings against the applicant under Article 327 of the Criminal Code (forgery of documents).

16. On 30 December 2008 the Yoshkar-Ola Town Court ("the Town Court") found the applicant guilty of forging documents and ordered him to pay a fine of 10,000 Russian roubles (RUB). The applicant did not appeal against the sentence.

2. Extradition proceedings
17. On 11 June 2008 the applicant was arrested in Russia (see paragraph 31 below). On the same date and on 19 June 2008 he was questioned and stated that he was being subjected by the Uzbek authorities to politically motivated persecution in connection with events in Andijan in May 2005. He denied any involvement in illegal activities.

18. On 2 July 2008 the applicant was questioned again. He reiterated that he was being sought by the Uzbek authorities for alleged participation in the Andijan events in May 2005 and denied any involvement in extremist organisations.

19. On 5 July 2008 the Prosecutor General's Office of Uzbekistan forwarded a request for the applicant's extradition (see paragraph 11 above).

20. On 17 July 2008 the Federal Migration Service ("the FMS") informed the Prosecutor General's Office that the applicant did not have Russian citizenship.

21. On 6 August 2008 the Mari-Al FMS informed the Mari-Al prosecutor's office that on 1 August 2008 the applicant's request for asylum had been rejected.

22. On 4 August 2008 the Russian Ministry of Foreign Affairs informed the Prosecutor General's Office that they did not have any information precluding the applicant's extradition. The text of the document comprised three lines and stated:

"The Russian Ministry of Foreign Affairs has no information precluding Mr A. Karimov's extradition to the law-enforcement bodies of Uzbekistan for criminal prosecution."
23. On 30 August 2008 the Federal Security Service ("the FSB") informed the Prosecutor General's Office that they did not have any information precluding the applicant's extradition to Uzbekistan. The text of the document stated:

"The FSB has no information concerning either the politically motivated persecution of Mr A. Karimov (who was born in 1964 in Uzbekistan) or any obstacles precluding his extradition to the law-enforcement bodies of Uzbekistan.

His extradition to the Uzbek authorities would not damage the interests or security of the Russian Federation."
24. On 18 September 2008 the Russian Prosecutor General's Office ordered the applicant's extradition to Uzbekistan.

25. On 25 September 2008 the applicant was informed of the extradition order. He appealed against it to the Supreme Court of Mari-Al. Referring to the case-law of the European Court of Human Rights, the applicant stated that he was being sought by the Uzbek authorities for the alleged commission of political crimes and that his extradition would expose him to a real risk of ill-treatment by the local authorities. He further stated that the Russian Office of the UN High Commissioner for Refugees had recognised the need for his international protection and requested that the extradition decision be overruled as unlawful.

26. On 31 October 2008 the Supreme Court of Mari-Al rejected the applicant's appeal and upheld the extradition order stating, inter alia, the following:

"...the law-enforcement bodies of the Republic of Uzbekistan charged A. Karimov with criminal conspiracy... with the aim of undermining State security, destabilising the social and political order...

These actions on the part of A. Karimov are classified [by the Uzbek authorities] as the use of violence and force jeopardising the safety of persons and property with the aim of forcing State bodies to take or not to take certain actions... that is, as the crime punishable under Article 155 § 3 (a) of the Uzbek Criminal Code...

...The factual circumstances and legal assessment of the actions of which A. Karimov is accused are described in the statements of charges of 18 June 2005 and 2 August 2008...

...the [applicant's] allegations about the risk of ill-treatment in Uzbekistan were not confirmed by the documents examined during the hearing...

...the Republic of Uzbekistan guaranteed that the applicant would not be extradited to a third country without the consent of the Russian Federation... [and] that after the trial and the completion of his sentence he would be free to leave Uzbekistan."
27. On 7 November 2008 the applicant appealed against the above decision and the extradition order to the Supreme Court of the Russian Federation ("the Supreme Court"). He stated that the proceedings concerning his request for refugee status in Russia were still pending and that his extradition would expose him to a real risk of ill-treatment by the Uzbek authorities.

28. On 13 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.

29. On 23 December 2008 the Supreme Court rejected the applicant's appeal and made the extradition order final. The court stated that the applicant had applied for refugee status in Russia only after his arrest on 11 June 2008, that his allegations of a risk of ill-treatment were unsubstantiated and that "...the Uzbek Prosecutor General's Office guaranteed that... it would prosecute A.M. Karimov only for the crimes he had been charged with...".

30. On 22 September 2009 the applicant requested the Prosecutor General's Office to cancel the extradition order of 18 September 2008 as he had been granted temporary asylum in Russia (see paragraph 57 below). He did not receive any response from the authorities.

3. The applicant's detention pending extradition
31. On 11 June 2008 the applicant was arrested in Yoshkar-Ola and placed in the local detention centre IZ-12/1 ("the detention centre").

32. On 12 June 2008 the Town Court ordered the applicant's detention until 12 July 2008, stating that:

"...the deputy head of the Department of the Interior of the Andijan Region of Uzbekistan... requested that A.M. Karimov be arrested... and that the request for his extradition be submitted [to the Russian authorities] within one month".

On 17 June 2008 the applicant appealed against this decision to the Mari-Al Supreme Court. On 2 July 2008 the latter upheld the extension order.

33. On 4 July 2008 the Town Court extended the applicant's detention until 21 July 2008. On 7 July 2008 the applicant appealed against this decision to the Mari-Al Supreme Court. On 1 August 2008 the latter upheld the extension order.

34. On 22 July 2008 counsel for the applicant requested the head of the detention centre to release the applicant as the term of his detention had expired on 21 July 2008 and his detention after that date was unlawful.

35. On the same date the head of the detention centre replied to counsel, stating the following:

"...the law-enforcement bodies of the Russian Federation received a request from the Prosecutor General's Office of Uzbekistan concerning A.M. Karimov's extradition... In connection with this [the applicant's] detention is lawful and substantiated".

36. On the same date, 22 July 2008, counsel for the applicant appealed against the reply of the head of the detention centre to the Yoshkar-Ola Town Court, under Article 125 of the Code of Criminal Procedure (complaints against acts and decisions of officials involved in criminal proceedings). He stated that the applicant's detention had been authorised only until 21 July 2008 and that his detention after that date was unlawful. On 25 July 2008 the Town Court examined this complaint and set it aside without examination, stating that the applicant had failed to accurately define his request and to provide copies of the relevant court extension orders. The decision stated that the applicant should correct the above deficiencies and resubmit his complaint by 30 July 2008. The applicant appealed against this decision to the Mari-Al Supreme Court, which on 4 August 2008 returned his appeal without examination for failure to comply with the requirements specified in the decision of 25 July 2008.

37. Meanwhile, on 24 July 2008 the Town Court, at the request of the Yoshkar-Ola prosecutor, extended the applicant's detention until 12 December 2008. As to the applicant's allegation concerning the unlawfulness of his detention between 21 and 24 July 2008, the court stated:

"...Taking into account the fact that the Yoshkar-Ola prosecutor had already requested the court to detain the applicant pending his extradition, and that this request had been granted... the present prosecutor's request for extension of the applicant's detention should cover the applicant's detention between 12 June and 24 July 2008..."
On 28 July 2008 the applicant appealed against this extension order to the Mari-Al Supreme Court. On 14 August 2008 the latter upheld the extension of the applicant's detention; it left without examination the issue of the lawfulness of his detention between 21 and 24 July 2008.

38. On 5 December 2008 the Town Court, at the request of the Yoshkar-Ola prosecutor, extended the applicant's detention pending extradition until 12 March 2009. On the same date the applicant appealed against this decision to the Mari-Al Supreme Court. On 19 December 2008 the latter upheld the extension order.

39. On 11 March 2009 the Town Court, at the request of the Yoshkar-Ola prosecutor, extended the applicant's detention until 11 June 2009. On 13 March 2009 the applicant appealed against this decision to the Mari-Al Supreme Court. On 26 March 2009 the latter upheld the extension order.

40. On 22 May 2009 the Town Court rejected the request of the Yoshkar-Ola prosecutor and refused to extend the applicant's detention until 11 December 2009 (up to 18 months). The prosecutor's office appealed against the refusal to the Supreme