FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38411/02 
by Murad Redzhepovich GARABAYEV 
against Russia

The European Court of Human Rights (First Section), sitting on 8 September 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen , Section Registrar,

Having regard to the above application lodged on 24 October 2002,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Murad Redzhepovich Garabayev, is a national of Russia and of Turkmenistan. He was born in 1977 and currently resides in Moscow. He is represented before the Court by Mrs A. Stavitskaya and Mrs K. Moskalenko, lawyers of the International Protection Centre, Russia. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

The applicant was employed as an accountant in the Department of general accounting and reports in the Central Bank of Turkmenistan. On 4 March 2002 the applicant was registered in the Russian Consulate in Turkmenistan as a Russian citizen residing in Ashkhabad, and on 17 March 2002 he was issued a Russian passport no. 51 N 0956182. In August 2002 the applicant resigned and, with his wife and son, born in 1999, moved to Moscow to apply for Ph. D studies.

1. Proceedings related to the applicant’s extradition to Turkmenistan

On 27 September 2002 the General Prosecutor of Turkmenistan addressed a request to the General Prosecutor of the Russian Federation to detain and extradite the applicant on criminal charges. The request was made on the basis of the CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention). In Turkmenistan the applicant was charged with large scale embezzlement of state property, committed through abuse of powers. In particular, the request stated that the applicant, in the period between 25 July and 3 September 2002, transferred financial assets to the value of 40 million US dollars from the correspondent account of the Central Bank of Turkmenistan in the Deutsche Bank AG (Frankfurt-am-Main, Germany) to the Russkiy Depozitarny Bank (Moscow), Latekobank and Pareksbank (Riga, Latvia) and to HSBC (Syangan, China). The assets were later withdrawn from the accounts and were not returned to Turkmenistan. Criminal proceedings were opened in Turkmenistan against the applicant. On 25 September 2002 a warrant for his arrest was issued by a prosecutor and he was put on the wanted list.

On 27 September 2002 the applicant was detained in Moscow pursuant to an order of the General Prosecutor of Turkmenistan and placed in the temporary detention ward of the Moscow City Department of Interior (изолятор временного содержания ГУВД г. Москвы).

On 11 October 2002 the applicant’s lawyer, Mrs Stavitskaya, submitted a complaint to the General Prosecutor’s Office (GPO). She contested the possibility of the applicant’s extradition to Turkmenistan in view of his Russian nationality. She referred to the relevant provisions of the Russian Constitution, the Law on Citizenship, the Code on Criminal Procedure (CCP) and the 1993 Minsk Convention, none of which allowed extradition of a Russian national to another jurisdiction. The complaint referred to current human rights reports on the situation in Turkmenistan, which gave rise to a well-established fear that torture and other forms of inhuman or degrading treatment would be used against the applicant. She also contested the legality of the applicant’s detention in Russia, as the applicant had been detained pursuant to the request for his extradition. As the applicant’s extradition could not be legally carried out on account of his Russian nationality, his detention for the purpose of extradition was unlawful. The applicant was not charged with a criminal offence in Russia. He had a permanent residence in Moscow and a family and there were no reasons to suspect that he would abscond.

On 11 October 2002 the Human Rights Centre Memorial (“Memorial”), a Russian NGO, contacted the General Prosecutor about the applicant’s detention and possible extradition to Turkmenistan. It referred to the applicant’s Russian nationality. It further referred to the situation in Turkmenistan and, in particular, to the absence of fair trial guarantees and the lack of impartiality and independence of the judiciary. It referred to the facts that in Turkmenistan arrest warrants were signed personally by the President of Turkmenistan and were not subject to any review, that the sentences to be handed down in all politically important cases were pre-determined and that the use of torture was wide-spread. On 12 and 17 October 2002 Memorial issued press-releases concerning the applicant’s case. It stated that the applicant was being persecuted in Turkmenistan in connection with a politically motivated case against the former deputy head of the Central Bank of Turkmenistan, who had been accused by the President of financing the opposition and embezzling state funds, and who had fled Turkmenistan in 2001. Memorial gave details of the persecution of the employees of the Central Bank and their relatives, including the arrest of the applicant’s mother, sister and uncle and confiscation of their property.

On 15 October 2002 Mr Sergey Kovalev, a prominent member of the State Duma, sent a letter to the head of the International Department of the GPO concerning the applicant’s case. He reminded the Head of the Department of the applicant’s Russian nationality and referred to the risk of torture and to the lack of fair trial guarantees if the applicant were to be extradited to Turkmenistan.

On 18 October 2002 the applicant was transferred to a pre-trial detention centre (учреждение ИЗ 77/3).

On 18 October 2002 the chief assistant to the General Prosecutor issued an order for the extradition of the applicant to Turkmenistan. This order was approved by the General Prosecutor on 22 October 2002. The applicant and his lawyers were not informed of the order and did not receive a copy of it.

On 24 October 2002 the applicant was extradited to Turkmenistan. The applicant submits that, early in the morning, he was taken by the officers of the GPO to Domodedovo airport and brought to the premises of Turkmen Airlines. There he was briefly shown a copy of the decision of the General Prosecutor to extradite him. The officers of the Turkmen law-enforcement bodies brought him to the plane through the border control, where he was not required to show a passport. The applicant several times demanded a meeting with his lawyer, but this was refused.

The Government in their memorandum referred to the information obtained from the GPO, according to which the applicant had been escorted to the plane by the officers of the Ministry of Justice. The applicant had not applied to the convoy with requests concerning meeting with the lawyer, and in any event the convoy was not authorised to deal with complaints of the detainees. The Government confirmed that the applicant had seen the decision to extradite him on 24 October 2002.

On 18 and 24 October 2002 the applicant’s lawyer submitted complaints to the Moscow City Court. She challenged the lawfulness of the applicant’s detention in view of his Russian nationality and the lack of grounds for his extradition. She also noted that the applicant had not been charged with a criminal offence in Russia and that if he had been, there were no grounds for believing that he would flee from justice having regard to his personal circumstances. In her second complaint she also referred to the decision of the General Prosecutor to extradite the applicant, and stated that the defence and the applicant had neither been officially informed of the decision nor received a copy of it. She challenged the lawfulness of the decision in view of the applicant’s Russian nationality.

On 28 October 2002 a judge of the Moscow City Court replied to the applicant’s lawyer’s complaint of 18 October 2002 in a letter stating that the complaint concerning the lawfulness of the applicant’s detention should have been submitted to the competent district court. He further said that the complaint did not raise the issue of lawfulness of the decision to extradite, but in any case the decision should be reviewed in the presence of the person to be extradited. Since the applicant had been extradited to Turkmenistan on 24 October 2002, he could not take part in the court proceedings. On 5 November the same judge replied to the lawyer’s complaint of 24 October stating that the complaint against the lawfulness of the decision to extradite could not be reviewed in the absence of the applicant, who had already been extradited to Turkmenistan. The applicant’s lawyer appealed against the refusal to the Supreme Court.

On 11 November 2002 the GPO responded to the applicant’s lawyer stating that the decision to extradite the applicant had been taken pursuant to the request of the General Prosecutor of Turkmenistan in relation to a criminal charge of embezzlement of 40 million US dollars and that the decision was in conformity with the norms of international law.

On 14 November 2002 the European Court of Human Rights, under Rule 49 § 2 (a) of the Rules of Court, requested information from the Government concerning the applicant’s detention and extradition to Turkmenistan, and whether his claims that he could be subjected to treatment contrary to Article 3 of the Convention had been reviewed by a competent national authority.

On 5 December 2002 the Moscow City Court reviewed the lawyer’s complaint of 24 October 2002 in respect of extradition. It found that the decision to extradite the applicant was unlawful in view of the latter’s Russian nationality, proof of which - a copy of his Russian passport - was contained in the case file. The City Court further found that the decision was not officially notified to the applicant and to his lawyer, as a result of which he was deprived of the possibility to challenge it in accordance with the national law. The applicant’s detention was also found unlawful. This decision was not appealed and became final on 16 December 2002.

2. Proceedings related to the applicant’s Russian nationality

On 8 December 2002 the First Deputy to the General Prosecutor applied to the Presnenskiy District Court of Moscow seeking to establish that the applicant had obtained Russian nationality by fraud. The application was directed against the Ministry of Foreign Affairs, the Russian Consulate in Ashkhabad and the applicant himself. The Prosecutor submitted that the applicant had obtained Russian nationality as the spouse of a Russian national, pursuant to the relevant provisions of the Law on Citizenship and had submitted to the Russian Consulate a copy of the marriage certificate of 15 September 1998. However, the marriage had allegedly been dissolved by the Kopetdag etrap court of Ashkhabad, Turkmenistan, on 7 June 2001 in accordance with a ruling that had became final on 19 June 2001. On 27 December 2002 the Moscow City Court found that the applicant had submitted to the Russian Consulate fraudulent information, which served as a basis for granting him nationality. The court refused to nullify the applicant’s Russian nationality, since a decision of this nature could only be taken by the President of the Russian Federation. Neither the applicant, nor his wife nor his lawyer were informed of the proceedings and were not present at the hearing.

Having learnt of the proceedings, on 16 January 2003 the applicant’s lawyer appealed the decision to the Moscow City Court. She challenged the authenticity of the Ashkhabad district court ruling, which had been accepted as the basis of the decision. She also submitted a statement from the applicant’s wife, in which she categorically denied the divorce. Reference was also made to the fact that the applicant, his wife and his lawyer had not been informed of the proceedings in the Moscow City Court and had taken no part in those proceedings.

On 27 January 2003 the Russian Embassy in Turkmenistan, acting also on behalf of the Ministry of Foreign Affairs, submitted to the Moscow City Court a request to reinstate the ten-days’ time-limit for appealing against the decision of 27 December 2002, because the decision had been delivered to them on 18 January 2003. On 30 January 2003 the Presnenskiy District Court reinstated the term for appealing and forwarded the appeal to the Moscow City Court. In its appeal the Embassy submitted that the decision of the court was based on a wrong interpretation of Turkmen family law. According to the Embassy, the divorce was only pronounced when a corresponding entry was made in the civil registrar’s office and the relevant decision of the court served as a basis for divorce. The term for applying to the registrar’s office once the court decision had been taken was without limit in time. Therefore, the conclusion of the Moscow City Court about the submission of fraudulent information was unfounded. The Embassy further stated that the applicant had been deprived of the opportunity to participate in the court hearings. At the relevant time the applicant had been detained in a pre-trial detention centre in Ashkhabad and the Russian Consulate had been denied access to him, in violation of the relevant international treaties. On 30 January 2003 the Embassy submitted an additional appeal, referring to the applicant’s rights to a fair trial and to effective remedies against alleged violations, guaranteed by Articles 6 and 13 of the European Convention on Human Rights.

On 16 May 2003 the Moscow City Court quashed and remitted the decision of 27 December 2002 because the applicant’s participation in the proceedings had not been ensured.

On 17 September 2003, upon motion by the GPO, the Presnenskiy District Court terminated the proceedings concerning the allegedly fraudulent obtaining of Russian nationality, due to a change in circumstances. The decision was not appealed and entered into force on 27 September 2003.

3. Proceedings following the applicant’s extradition

The applicant submits that once he arrived in Ashkhabad he was brought to the office of the General Prosecutor and questioned for four hours. He was denied water and cigarettes and threatened with torture and reprisals against his family. The applicant denied the charges against him. During the questioning he was beaten on his head and back. He still suffers from the effects of these beatings.

He was then taken to the pre-trial detention centre of the Ministry of National Security. He describes the conditions as follows: three people were detained in a cell measuring about ten square metres, they were given food twice a day one plate each, there was no toilet in the cell and they were taken out to the toilet twice a day, there was no radio or TV in the cell and they received no news from the outside. The applicant was taken outside for a 15-20 minutes exercise during the first 20 days, and for two months he was not allowed any exercise.

He was questioned twice without a lawyer. He attempted to instruct a lawyer through his relatives, but was told that he was not entitled to one. His relatives found out that he was detained in the pre-trial detention centre, and informed him that his mother had been sentenced to seven years in prison, and his uncle for a longer term. His sister’s and parents-in-law’s identity documents had been taken away from them.

At the end of November and beginning of December 2002 the officers of the law-enforcement bodies of Turkmenistan visited the applicant in the detention centre and informed him that proceedings had been opened in the Presnenskiy Court in Moscow. He was shown a summons to attend the court and told to sign it. The applicant managed to write on it that he was in detention and could not attend. The officers were upset about this and hit the applicant.

On 25 January 2003 the applicant was presented with the charges and the case-file. The charges comprised four or five pages in Turkmen and the case-file consisted of two folders, mostly in Turkmen. The applicant, who does not know Turkmen, asked for an interpreter or translation of the documents. The applicant’s request was refused. By that time he had a lawyer who told him that there were no documents in the file which could prove his guilt. It also appears that on a later date the applicant was charged with swindling committed together with his sister.

In the meantime, the Russian Consulate in Ashkhabad had on several occasions contacted the Ministry of Foreign Affairs of Turkmenistan in order to arrange for a consular meeting with the applicant. Requests were sent on 5 December, 11 December 2002, 10 January and 24 January 2003. On 24 December 2002 the Ministry of Foreign Affairs of Turkmenistan replied that no meeting was possible, because the applicant was a national of Turkmenistan.

On 1 February 2003 the applicant was brought to the airport of Ashkhabad and returned to Moscow, accompanied by an official from the Russian Consulate.

After the applicant was returned to Moscow, he learnt that his mother had been tried again and sentenced to 14 years’ imprisonment and that similar sentences had been imposed on his sister and his uncle.

4. Criminal charges against the applicant in Russia

While the applicant was in Turkmenistan, on 24 January 2003 an investigator of the GPO started criminal proceedings against a group of persons on the basis of information received from the General Prosecutor of Turkmenistan. The background to the proceedings concerned the unauthorised transfer of 20 million US dollars from the account of the Central Bank of Turkmenistan in Deutsche Bank AG (Frankfurt-am-Main, Germany) to accounts in a private bank in Moscow. The applicant was not listed among the suspects.

On 29 January 2003 the applicant was charged with swindling on a large scale, committed by an organised group. The charge stated that in August 2002 the applicant, along with several private bank managers, including a certain L., transferred 20 million US dollars from the account of the Central Bank of Turkmenistan in Deutsche Bank AG (Frankfurt-am-Main, Germany) to the accounts in a private bank in Moscow. They then appropriated 19,3 million US dollars. The applicant signed the charge on 1 February 2003.

Also on 29 January 2003 the applicant was put on the international wanted list.

On 30 January 2003 the Basmanny District Court of Moscow granted the request of the investigator of the GPO for the issue of an arrest warrant in respect of the applicant. The investigator submitted that the applicant was charged with a serious crime and that he had fled from justice abroad. As a result, his name had been placed on the international wanted list. The applicant was represented by an appointed lawyer. At the hearing, the lawyer did not object to the applicant’s arrest.

On 30 January 2003 the First Deputy to the General Prosecutor of the Russian Federation contacted the General Prosecutor of Turkmenistan, seeking the applicant’s extradition in relation to criminal charges and an arrest warrant issued against him in Russia. The letter stated that the applicant was a Russian national and that there was information to conclude that he had at that time stayed in Turkmenistan. It did not refer to the applicant’s previous extradition to Turkmenistan.

On 31 January 2003 the First Deputy to the General Prosecutor of Turkmenistan authorised the applicant’s “temporary extradition” to Russia on the grounds of the criminal proceedings brought against him there.

On 1 February 2003 the applicant was returned to Moscow. Upon arrival he was arrested and placed in the Lefortovo pre-trial detention centre of the Federal Security Service (FSB).

On 6 February 2003 the applicant’s lawyer, Mrs Stavitskaya, met with the applicant in the detention centre. During the meeting she learnt of the court decision of 30 January 2003 ordering the applicant’s arrest. On 11 February 2003 she lodged a detailed appeal with the Moscow City Court against that decision. She submitted that the applicant was not properly represented and that all cases involving the issue of an arrest warrant in the absence of the accused required the special attention of the court. She submitted that the applicant did not flee from justice, but had been extradited to Turkmenistan by the GPO, that he was detained in Turkmenistan and that the investigation could not be unaware of this. She also referred to the decision of the Moscow City Court of 5 December 2002 according to which the applicant’s extradition and detention were unlawful.

On 19 March 2003 the Moscow City Court rejected the appeal. The representative of the GPO submitted that the investigator and the Deputy General Prosecutor who authorised the proceedings had not been aware of the applicant’s whereabouts and that an international search warrant had been issued against him. The court had regard to his personal situation, the seriousness of the charges, and the fact that the applicant could interfere with the investigation, put pressure on witnesses and hide or destroy evidence of the crimes.

On 19 March 2003 the applicant was again charged with large-scale swindling committed by a group of persons and with forgery of official documents.

On 28 March 2003 the Basmanny District Court extended the applicant’s detention. The court repeated its arguments that the applicant had fled from justice abroad. It had regard to the seriousness of the charges and the risk that he could interfere with the investigation. His detention was authorised until 29 May 2003. On 23 April 2003 the Moscow City Court on the applicant’s appeal confirmed this decision.

On 2 April 2003, following a letter from the applicant which stated that the threat of his extradition persisted, the European Court of Human Rights, under Rule 39 of the Rules of Court, requested the Russian Government not to extradite the applicant to Turkmenistan until further notice.

On 24 and 27 April 2003 the charges of swindling, money-laundering and forgery of documents were again laid against the applicant.

On 12 May 2003 a judge of the Moscow City Court, upon the applicant’s complaint, submitted a motion for supervisory review to the Presidium of the Moscow City Court, seeking to review the decisions of 30 January 2003 and 19 March 2003. The motion stated that the applicant had been extradited to Turkmenistan pursuant to a decision of the General Prosecutor and therefore the reasons invoked to issue an international search warrant and to authorise his detention in absentia had been invalid.

On 16 May 2003 the Basmanny District Court reviewed the GPO request to authorise the applicant’s detention and granted it, without indicating the term of detention.

On 8 July 2003 the complaint was communicated to the Russian Government by the European Court.

At some point in summer 2003 the investigation of the charges brought against the applicant was completed and the Zamoskvoretskiy District Court scheduled the first hearing on 4 September, and then on 3 October 2003.

On 9 March 2004 the Zamoskvoretskiy District Court of Moscow found the applicant guilty of using a forged document and sentenced him to a fine of 5,000 roubles (RUR). The court acquitted the applicant of charges of embezzlement on a large scale, and the prosecutor withdrew charges of money-laundering. The applicant was released from detention on the same day. By the same decision the applicant’s only co-accused L., manager of a private bank in Moscow, was convicted of money-laundering committed by a group and sentenced to four years of imprisonment.

On 19 March 2004, following a letter from the Russian Government with assurances that the applicant would not be extradited to Turkmenistan in view of his now undisputed Russian nationality, the European Court of Human Rights discontinued the preliminary measure indicated under Rule 39 § 1 of the Rules of Court.

On 9 June 2004 the Moscow City Court reviewed the decision of 9 March 2004 upon appeals by the applicant, L. and the prosecutor. The City Court rejected all the appeals and upheld the decision of the district court.

B.  Relevant domestic law

1. The Criminal Procedure Code (CCP)

Sections 108 and 109 of the Criminal Procedure Code (CCP) of 2002 contain provisions related to pre-trial detention. They provide that detention can be imposed by a judge upon a motivated request by the prosecutor, or an investigator upon the prosecutor’s sanction, if no other measure of restraint can be applied. The presence of the accused person in the court room is obligatory, unless he had been put on the international wanted list. The decision of the court to apply detention can be appealed to a higher court within three days, which should consider the appeal within three days from the day of receipt. Section 109 sets the following terms of pre-trial detention: the term of detention can not exceed two months. If the investigation continues, it can be extended by the court upon a prosecutor’s motion up to six months. After that, upon submission of the prosecutor of the region, it can be extended up to 12 months. In exceptional circumstances, upon a motion by the General Prosecutor or his deputy, pre-trial detention can be extended up to a maximum of 18 months.

Section 125 of the CCP provides for judicial review of the decisions of the investigators that can infringe the constitutional rights of the participants in proceedings or prevent a person’s access to court.

Chapter 54 of the CCP regulates extradition on criminal charges. Sections 462- 463 state that a decision to extradite a person upon a request from another country is taken by the General Prosecutor or his deputy. Such a decision is subject to appeal to a regional court within 10 days from the date of notification of the decision to the person concerned. The complaint is reviewed at a public hearing, in the presence of the person in question, his representative and the prosecutor. The decision of the regional court can be appealed to the Supreme Court.

Section 464 provides that extradition cannot take place if the person whose extradition is sought is a Russian national or if he has refugee status.

Section 466 contains provisions related to the detention of a person whose extradition is sought. Detention can be authorised by the General Prosecutor or his deputy upon receipt of an extradition request. If a foreign court had authorised the person’s arrest, the decision of the prosecutor does not need to be confirmed by a Russian court. The period of detention can not exceed normal terms of detention pending investigation set up by the Criminal Procedure Code for similar crimes.

2. The 1993 Minsk Convention

The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Turkmenistan are parties, provides in Article 5 that the Parties communicate through their central, regional and other bodies.

Article 57 provides that extradition shall not take place if the person whose extradition is sought has the nationality of the requested Contracting Party.

Its other relevant provisions are as follows:

Article 61. Arrest or detention before the receipt of a request for extradition

“1.  The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax.

2.  The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.

3.  In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”

Article 61-1. Search for a person before receipt of the request for extradition

“1.  The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party ....

2.  A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition.

3.  A request for the search shall be accompanied by a certified copy of ... the detention order ....

4.  The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.”

Article 62. Release of the person arrested or detained

“1.  A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest.

2.  A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.”

3. Other relevant legal provisions

Article 61 of the Constitution states that a citizen of the Russian Federation may not be deported from Russia or extradited to another State.

Article 62 §§ 1 and 2 of the Constitution permit a citizen of the Russian Federation to have the citizenship of a foreign State (dual citizenship) according to the federal law or an international agreement of the Russian Federation. The possession of a foreign citizenship by a citizen of the Russian Federation shall not derogate from his rights and freedoms and shall not relieve him of the obligations stipulated by Russian citizenship, unless otherwise provided for by federal law or an international agreement of the Russian Federation

Section 4 § 4 of the Law on Citizenship provides that a citizen of the Russian Federation shall not be exiled from the Russian Federation or handed over to a foreign State.

Article 5 of the 1993 Agreement between Russia and Turkmenistan on Regulation of Double Citizenship provides that a person having double citizenship of the Contracting Parties enjoys all rights and freedoms and bears all responsibilities of a citizen of the State where the person resides.

B.  Reservation of the Russian Federation

The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contains the following reservation:

“In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 96-1, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions...”

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention that his extradition to Turkmenistan subjected him to a real risk of torture and ill-treatment. He also complains that he was subjected to beatings and psychological pressure in Turkmenistan, in violation of Article 3.

2.  The applicant complains that his detention violated the provisions of Article 5 relating to the lawfulness of detention and its procedural guarantees.

In particular, he submits that his detention before his extradition to Turkmenistan was not in conformity with Article 5 § 1 (f), because there were no legal grounds for the extradition and no criminal charge was pending against him in Russia at that time.

Under Article 5 § 3 he complains that he was not brought promptly before a judge prior to extradition and that on 30 January 2003 his detention in Russia was ordered in his absence and in the absence of his chosen lawyer.

Under Article 5 § 4 the applicant complains that he could not challenge before a court the lawfulness of his detention prior to extradition.

3.  The applicant complains that he had no effective remedies in relation to his detention and extradition, contrary to Article 13.

THE LAW

1. The applicant submits that by extraditing him to Turkmenistan Russia violated its obligations under Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government referred in their memorandum to information from the General Prosecutor’s Office, according to which there were no reasons to believe that there was a threat of treatment contrary to Article 3 in Turkmenistan. While in detention pending extradition the applicant did not allege that he could be in danger of such treatment and he only submitted such complaints after the extradition had occurred. The Government also noted that the applicant’s extradition was found unlawful by a domestic court on 5 December 2002.

The applicant insists that his extradition to Turkmenistan was incompatible with Article 3. He states that the relevant authorities failed to take into account information submitted by himself, his lawyer and public figures which indicated that there existed a real risk of torture and politically motivated persecution. He was only briefly shown the extradition order on 24 October 2002, i.e. on the day of transfer to Turkmenistan, and had no opportunity to contact his lawyer or to challenge the decision in accordance with the national legislation. This risk of ill-treatment materialised when he was extradited and while in detention in Turkmenistan he was subjected to treatment prohibited under Article 3.

The Court considers, in the light of the parties’ submissions, that the complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant challenges the lawfulness and procedural guarantees of his detention, referring to the following relevant provisions of Article 5:

“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: ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...

(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. ...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  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. ....”

a) Concerning the lawfulness of detention on 27 September – 24 October 2002

The Government in their memorandum refer to two legal positions, that of the GPO and of the Supreme Court. The GPO stated that the applicant’s detention prior to extradition had been lawful and was based on the relevant provisions of the Minsk Convention of 1993 and the relevant Russian legislation and was in conformity with Article 5 § 1 (f) of the Convention. They also contested the applicability of Article 5 § 3 to this period of the applicant’s detention. The Supreme Court agreed with the applicant that from 27 September until 24 October 2002 he had been detained unlawfully, because no judicial decision had authorised the detention. However, the decision of the Moscow City Court of 5 December 2002 had corrected the violation, declared the extradition and the detention unlawful and thus the applicant’s rights were reinstated. Moreover, the applicant’s lawyer’s appeal of 18 October 2002 was correctly rejected by the Moscow City Court because it should have been submitted to the competent district court.

The applicant maintains his complaints. He stresses that at the time of his arrest he was holding Russian nationality and could not be extradited to Turkmenistan, therefore his detention for that purpose had been unlawful under Article 5 § 1 (f). At that time he was not charged with a criminal offence in Russia, and therefore the provisions of Article 5 § 1 (c) could not justify his detention. He refers to the relevant sections of the CCP which stipulate that arrest prior to extradition can be authorised by a court of the country demanding extradition, or by a Russian court. Since his arrest in Turkmenistan was authorised by a prosecutor, a decision of a Russian court was necessary to authorise his detention in Russia. The failure to do so resulted in a breach of Article 5 § 3. The applicant also disagrees that the decision of 5 December 2002 restored his rights under Article 5 § 1 (f), because it did not lead to his release and he remained in detention in Turkmenistan for another two months. The reason for his return from Turkmenistan was not the quashing of the decision to extradite of 5 December 2002, but new criminal proceedings opened in Russia, as a result of which his detention continued, albeit under new grounds.

In so far as the applicant refers to Article 5 § 3, the Court observes at the outset that this provision speaks of only one specific form of deprivation of liberty, which is referred to in paragraph 1 (c) of Article 5 and which is “effected for the purpose of bringing [a person] before the competent legal authority on reasonable suspicion of having committed an offence or fleeing after having done so”.

It further notes that the detention throughout the period under consideration was not for the reasons mentioned in that provision but “with a view to extradition”, which makes Article 5 § 3 inapplicable in the present case (cf. Gordyeyev v. Poland (dec.), no. 43369/98 and 51777/99).

It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

In so far as the applicant complains under Article 5 § 1 (f), the Government do not formally challenge his victim status in view of the decision of 5 December 2002 by which the extradition and detention had been found unlawful. They rely on the opinion of the Supreme Court which suggests that the said decision reinstated the applicant’s rights in this part. At the same time, they rely on the position of the GPO which denies that a violation has ever occurred. The Court considers that these comments are to be considered as observations on the merits of the case, and not as a preliminary objection.

The Court considers, in the light of the parties’ submissions, that the complaint brought by the applicant under Article 5 § 1 (f) raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

b) Concerning access to judicial review of detention pending extradition

The Government argue that the applicant had ample opportunities to challenge the lawfulness of detention prior to extradition but failed to use them properly. The applicant’s lawyer appealed the lawfulness of detention to the Moscow City Court on 18 October 2002 and to the General Prosecutor on 11 October on 2002. The Moscow City Court refused to consider the complaint because it should have been submitted to the competent district court. The GPO responded to the applicant’s lawyer on 11 November 2002. The applicant himself did not launch any complaints. He was informed of the decision to extradite him on 24 October 2002 and did not request to contact a lawyer. The Russian legislation does not provide for notification of the lawyer of the person whose extradition is under way.

The applicant argues that the CCP does not contain a mechanism for challenging the lawfulness of detention pending extradition. His detention pending extradition was never reviewed by a court, despite his complaints.

The Court considers, in the light of the parties’ submissions, that the complaint brought by the applicant under Article 5 § 4 raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

c) Concerning detention after 1 February 2003

The Government deny that there were any irregularities in ordering the applicant’s detention in absentia on 30 January 2003 and in its further extensions. They cite the GPO legal opinion which argues that the reservation concerning application of Article 5 § 3 made by the Russian Federation at the time of ratification of the European Convention on Human Rights extends to the provisions of Section 108 of the CCP of 2002 in so far as it permits a court to issue arrest warrant for a suspect who had been put on the international wanted list. They also argue that the applicant was represented by an appointed lawyer during the hearing on 30 January 2003, and after 5 February 2003, he was represented by the lawyer of his choice, Mrs. Stavitskaya. The decision of 30 January 2003 was reviewed on the applicant’s appeal by the Moscow City Court on 19 March 2003 and found lawful, as were the following extensions of detention on remand. The legal opinion of the Supreme Court, in addition, points out that at the time when the Basmanny District Court ordered the applicant’s detention it was not aware that the applicant was in Turkmenistan, but only that he was charged with a criminal offence in Russia and put on the international wanted list. During subsequent reviews this information was brought to the courts’ attention by Mrs Stavitskaya, but that did not affect the conclusion of the lawfulness of the court’s initial decision.

The applicant maintains that the guarantees of Article 5 § 3 were not applied to his detention after 1 February 2003. The inclusion of his name on the international wanted list by the GPO was unlawful because he had been extradited by the same office to Turkmenistan in October 2002, and had not absconded from justice in Russia. The Basmanny District Court failed to investigate the circumstances of the file and ordered his arrest in breach of the domestic legislation and the Convention provisions. Subsequent judicial review of his detention failed to take into account the defective reasoning of the detention order and to order his immediate release. He also argues that the reference to the reservation is unfounded, because the new CCP of 2002 introduced the judicial authorisation of arrest in accordance with Article 5 § 3, and therefore the reservation ceased to apply.

In so far as the Government’s submissions invoke the reservation made by the Russian Federation at the time of ratification of the Convention, the Court observes that the reservation specifically refers to the provisions of the Code of Criminal Procedure of 1960, under which a person could be detained on a decision of investigative authorities without there being any requirement for judicial authorisation of the detention. The Code was replaced in 2002 by a new CCP which provided for judicial authorisation of detention, and the Code of 1960 was therefore not in force at the material time. Moreover, the applicant’s detention was authorised on 30 January 2003 by a court, and not by a prosecutor as the previous legislation stipulated. The applicant’s complaint under Article 5 § 3 concerns not the absence of the judicial authorisation as such, but the fact that he and his lawyer were not present at the hearing. The Court therefore finds that the reservation in question does not apply in the present case and dismisses the Government’s objection.

The Court considers, in the light of the parties’ submissions, that the complaint brought by the applicant under Article 5 § 3 in respect of his detention following 1 February 2003 raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant alleges that he had no effective remedies against the above claimed violations, referring to Article 13, which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contend that the applicant had access to the domestic proceedings which were effective.

The applicant maintains that he had no access to effective domestic remedies in respect of his complaints under Articles 3 and 5 § 1, 3 and 4 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint brought by the applicant under Article 13 raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Dismisses the Government’s objection concerning the applicability of the reservation of the Russian Federation to the applicant’s detention after 1 February 2003;

Declares admissible, without prejudging the merits of the case, the applicant’s complaints under Article 3, Article 5 § 1(f) as regards the period from 27 September 2002 to 24 October 2002, Article 5 § 3 in relation to his detention after 1 February 2003, Article 5 § 4 as to the period subsequent to 1 February 2003, and Article 13 of the Convention; and

Declares the remainder of the application inadmissible.

Søren Nielsen Christos rozakis 
 Registrar President

GARABAYEV v. RUSSIA DECISION 


GARABAYEV v. RUSSIA DECISION