Постановление Европейского суда по правам человека от 23.09.2010 «Дело Искандаров (iskandarov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ISKANDAROV v. RUSSIA
(Application No. 17185/05)
JUDGMENT*
(Strasbourg, 23.IX.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 Iskandarov 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,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 2 September 2010,

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

PROCEDURE
1. The case originated in an application (No. 17185/05) 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 a Tajikistani national, Mr Mukhamadruzi (also spelled Mahmadruzi) Iskandarov ("the applicant"), on 6 May 2005.

2. The applicant was represented by Ms K.A. Moskalenko, a lawyer practising in 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. On 30 May 2008 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
4. The applicant was born in 1954 and lives in Dushanbe.

A. The applicant's account of events
1. Background of the case
5. In May 1992 a civil war erupted in Tajikistan when ethnic groups under-represented in the ruling elite rose up against the national government of President Nabiyev. Politically, the discontented groups were represented by liberal democratic reformists and Islamists, who fought together and later organised themselves under the banner of the United Tajik Opposition ("UTO"). By June 1997 fifty to one hundred thousand people had been killed.

6. During the civil war in Tajikistan, the applicant was one of the leaders of the UTO.

7. On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. The applicant was appointed as the head of the State Committee for Extraordinary Situations and Civic Defence of Tajikistan. While in office, he was awarded the rank of Major-General.

8. In 1999 the President of Tajikistan appointed the applicant as the director of the unitary enterprise Tajikkommunservis.

9. On 13 September 1999 the applicant was elected chairman of the Democratic Party of Tajikistan.

10. On 4 June 2001 the applicant was appointed as the director of the unitary enterprise Tajikgaz.

11. At some point the applicant openly criticised the President of Tajikistan.

12. On 1 December 2004 the applicant moved to Russia.

2. Charges against the applicant and extradition proceedings
13. On 25 November 2004 the Tajik Prosecutor General's Office charged the applicant in his absence with terrorism, gangsterism, unlawful possession of firearms and embezzlement.

14. On 26 November 2004 the Tajik authorities chose placement in custody as a preventive measure to be imposed on the applicant.

15. On 29 November 2004 the applicant was put on an international "wanted" list.

16. On 1 December 2004 the Russian Prosecutor General's Office received a request for the applicant's extradition from the Tajik Prosecutor General's Office.

17. On 9 December 2004 the Russian authorities arrested the applicant on the basis of the request for his extradition.

18. On an unspecified date the applicant was placed in remand prison No. IZ-77/4 in Moscow.

19. On 23 December 2004 the Babushkinskiy District Court of Moscow authorised the applicant's detention pending extradition.

20. On 24 December 2004 the applicant appealed against the firstinstance decision. On an unspecified date the Moscow City Court dismissed the appeal.

21. On 29 December 2004 and 18 January 2005 the applicant requested the Russian Prosecutor General's Office not to extradite him, arguing that the request for his extradition had been filed for purely political reasons.

22. In January 2005 the applicant requested the Department for Migration Affairs of the Moscow Department of the Interior to grant him political asylum.

23. On 1 April 2005 the Russian Prosecutor General's Office dismissed the extradition request by the Tajik authorities for the reason that the applicant had filed an asylum application.

24. On 4 April 2005 the prosecutor's office of the Babushkinskiy District of Moscow ordered the applicant's release from custody.

3. The applicant's abduction and transfer to Tajikistan
25. Upon his release on 4 April 2005 the applicant stayed at his friend's flat in the town of Korolev, in the Moscow Region, awaiting examination of his asylum application.

26. In the evening of 15 April 2005 the applicant and his friend, Mr L., were walking a dog. At some point the applicant saw two persons wearing uniforms of the Russian State Inspectorate for Road Safety ("ГИБДД", "GIBDD"). He assumed that those men intended to arrest him and told his friend to go home. Then the applicant noticed that the area had been surrounded by twenty-five or thirty men with Slavic features wearing civilian clothes.

27. Without identifying themselves or giving any explanations, the two men in GIBDD uniforms, assisted by several men in civilian clothes, handcuffed the applicant. One of the men hit the applicant on the head and placed him in a car; it drove off. After 400 or 500 metres the car stopped; the men in the GIBDD uniforms took the applicant out and placed him in a minivan.

28. They drove for a while. Eventually the minivan stopped and the applicant was taken outside. The surroundings were unknown to him. The applicant was escorted to a sauna and detained there. The guards beat the applicant. He asked for a lawyer, but in vain.

29. On 16 April 2005 the applicant was taken to a forest. The men who had apprehended him met a group of people and conversed with them there. Having listened to them talking, the applicant assumed that the newly arrived people were servicemen of the Russian law-enforcement agencies.

30. At some point the servicemen put a mask on the applicant's face. They did not identify themselves, nor did they give any explanations of their actions. They spoke unaccented Russian.

31. Later they took the applicant with them and escorted him to an airport. The applicant's identity papers were not checked. While boarding the plane, the applicant heard the servicemen talking to a woman who apparently knew them. During the flight the applicant, still blindfolded, heard no instructions or other information usually conveyed in a civil aircraft.

32. On the morning of 17 April 2005 the aircraft landed at Dushanbe Airport and the applicant was handed over to the Tajik law-enforcement agencies.

4. The applicant's detention in Tajikistan
33. On 17 April 2005 the applicant was placed in the remand prison of the Tajik Ministry of Security. He was kept in a cell measuring 2.3 x 2 metres. There was an iron bed with dirty bedding.

34. For the first ten days of his detention the applicant was registered under a false last name, "Sobirov". During that period officers of the remand prison regularly beat the applicant. He had no food except for two pieces of bread per day and some water. He was allowed to use the lavatory only once a day. The applicant was not permitted to go for a walk or to wash himself.

35. On the tenth day of the applicant's detention, officers of the Tajik Prosecutor General's Office told him that he would be killed unless he confessed. The applicant made a self-incriminating statement under pressure. He was given some pills, allegedly of a psychotropic nature.

36. On 25 April 2005 the Tajik Prosecutor General gave a press conference and announced that the applicant had been arrested in Tajikistan on 22 April 2005.

37. On 30 April 2005 the applicant was allowed to see his lawyers for the first time since his arrest. He explained them that for thirteen days he had been kept incommunicado and had lived on bread and water. The lawyers' visits took place in the presence of the prison officials. Unsupervised visits were not permitted.

38. On 5 October 2005 the Supreme Court of Tajikistan convicted the applicant and sentenced him to twenty-three years' imprisonment.

39. On 18 January 2006 the Appeals Board of the Supreme Court of Tajikistan upheld the judgment of 5 October 2005.

5. Complaints to the Russian authorities
40. On 2 May 2005 the Presidium of the Democratic Party of Tajikistan requested the President of Russia, the Russian Prosecutor General's Office and the Russian Ombudsman to clarify the circumstances of the applicant's unlawful extradition.

41. On 3 May 2005 the applicant's relatives requested the Russian Prosecutor General's Office to explain how the applicant had been transferred to Tajikistan. No reply was given.

42. On 30 May 2005 the applicant's lawyers enquired of the Russian Prosecutor General's Office whether any measures had been taken in relation to the letter of 3 May 2005.

43. On 14 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office that the applicant's abduction and extradition had been unlawful.

44. On 22 June 2005 the applicant's lawyers complained to the Tverskoy District Court of Moscow about the inaction of the Russian Prosecutor General's Office. The court left the complaint unexamined.

45. On 15 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office about the allegedly ineffective investigation into the circumstances of the applicant's unlawful extradition.

46. On 20 June 2005 the Korolev town prosecutor's office refused to institute criminal proceedings in relation to the applicant's kidnapping.

47. On 6 July 2005 the Korolev town prosecutor's office quashed the decision of 20 June 2005 and instituted an investigation under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping).

48. On 8 September 2005 the applicant's representatives lodged a second complaint with the Tverskoy District Court of Moscow. The complaint was dismissed on 28 September 2005.

49. On 16 September 2005 the applicant's lawyer requested the Korolev town prosecutor's office to demand the Tajik authorities to transfer the applicant to Russia for questioning. On 19 September 2005 the request was dismissed. The applicant's lawyers challenged the prosecutor's decision before the prosecutor's office of the Moscow Region, but to no avail.

50. The applicant himself requested the Korolev town prosecutor's office to question him as a victim in Russian territory.

51. On 6 October 2005 the Korolev town prosecutor's office dismissed the applicant's request. The applicant's lawyers challenged the refusal before a court.

52. On 24 April 2006 the Korolev Town Court dismissed the complaint on the ground that the applicant had not been permitted to join the proceedings as a victim. That decision was quashed. On 25 September 2006 the Moscow Regional Court dismissed the complaint at final instance on the ground that the applicant's rights had not been breached.

53. On 12 December 2005 the Moscow City Court dismissed at final instance the complaint about the Russian Prosecutor General's inaction.

54. On 27 March 2006 the Tverskoy District Court of Moscow dismissed at first instance the applicant's complaint about the Russian Prosecutor General's Office's inaction. On 23 May 2006 the Moscow City Court upheld the decision.

55. On 6 April 2006 the applicant's lawyers challenged in court the investigators' decision. On 25 September 2006 their complaint was dismissed at final instance by the Moscow Regional Court.

6. The proceedings before the UNHCHR
56. In November 2004 two Tajik lawyers filed a complaint with the United Nations High Commissioner for Human Rights (UNHCHR) concerning alleged violations of the applicant's rights in the course of the criminal proceedings against him in Tajikistan.

57. On 20 October 2005 the Working Group on Arbitrary Detention of the Office of the UNHCHR put questions on the applicant's detention to the Tajik Government.

58. On 24 November 2005 the Tajik Ministry of Foreign Affairs, in reply to the request by the Office of the UNHCHR, submitted a seventeenpage document in Russian describing the charges against the applicant and the proceedings against him. The document read, in so far as relevant, as follows:

"...[i]n accordance with the Minsk Convention, Mr Iskandarov was arrested by the Russian law-enforcement agencies in Moscow in December 2004.

In reply to the Russian Prosecutor General's Office's requests, the Tajik Prosecutor General's Office produced the necessary documents concerning Iskandarov's extradition to the Tajik authorities within the time-limits laid down by the Minsk Convention, as well as comprehensive proof of Iskandarov's guilt in respect of the crimes he had been charged with. After that, the Russian Prosecutor General's Office informed the Tajik authorities that a favourable solution would be found to the question of Iskandarov's extradition.

It is noteworthy that on 4 April 2005 the Russian law-enforcement agencies released Mr Iskandarov from custody prior to deciding on his extradition but did not officially notify the Tajik Prosecutor General's Office of the grounds and reasons for the release under the Minsk Convention.

Mr Iskandarov was officially extradited to the Tajik authorities by the Russian law-enforcement agencies and on 17 April 2005 he was placed in the remand prison of the Tajik Ministry of Security."
59. On 29 September 2006 the Office of the UNHCHR forwarded the letter from the Tajik Ministry of Foreign Affairs to the applicant's Tajik counsel and notified her that, in order to consider the applicant's case during its 47th session, its Working Group expected to receive her comments on it.

60. It appears that the proceedings before the UNHCHR concerning the alleged violations of the applicant's rights in Tajikistan are