CASE OF CHANKAYEV v. AZERBAIJAN

FIRST SECTION

CASE OF CHANKAYEV v. AZERBAIJAN

(Application no. 56688/12)

JUDGMENT

STRASBOURG

14 November 2013

FINAL

14/02/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Chankayev v. Azerbaijan,

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

Isabelle Berro-Lefèvre, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 22 October 2013,

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

PROCEDURE

1. The case originated in an application (no. 56688/12) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Gaji Ibragimovich Chankayev (“the applicant”), on 1 September 2012.

2. The applicant was represented by Mr E. Osmanov, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged, in particular, that his extradition to the Russian Federation would entail a violation of Article 3 of the Convention and that he had no effective remedies available to him by which to challenge his extradition on the grounds of the risk of his torture or ill-treatment.

4. On 12 September 2012 the Acting President of the Section decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the Russian Federation for the duration of the proceedings before the Court. It was also decided to grant the application priority treatment under Rule 41 of the Rules of Court.

5. On 12 December 2012 the application was communicated to the Government. In addition, on 17 January 2013 the Russian Government informed the Court that they would exercise their right to intervene in the proceedings as a third party (Article 36 § 1 and Rule 44 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1967 and is currently detained in Baku.

A. Background information

7. The applicant was a member of Chechen rebel groups fighting against the Russian regular army in Chechnya. According to the applicant, he participated in military operations in Chechnya in the years 2000 to 2002. In early 2002 he stepped on a landmine and lost a part of his leg below the knee. He was wanted in Russia as a participant in military operations and terrorist activities in Chechnya and Dagestan in the period from 1999 to 2002. He was also suspected by the Russian authorities of being one of the perpetrators of a 2002 bombing in Kaspiysk, Dagestan.

8. In 2002 the applicant fled to Baku using a different name (apparently using false identification documents in the name of Mr Rizvan Magomayev). He applied to the UNHCR Baku Office under this false name. The UNHCR issued a statement (valid until 30 June 2005) noting that he was a person of concern to the UNHCR.

9. While in Azerbaijan, the applicant established criminal contacts with an organised group of people responsible for a homicide, falsification of documents, illegal possession of firearms and other criminal offences. On 19 April 2006 the Assize Court of Azerbaijan convicted him of founding an illegal armed group and illegal possession of firearms, and sentenced him to seven years’ imprisonment.

10. Shortly after his conviction in Azerbaijan, on 7 July 2006 the Russian authorities sought the applicant’s temporary extradition in connection with the criminal proceedings concerning the offences he was alleged to have committed in Russia. According to the temporary extradition request, two separate sets of criminal proceedings were pending against the applicant in the Russian republics of Dagestan and Kalmykia under part 2 of Article 105 (aggravated murder), part 3 of Article 111 (premeditated infliction of grievous bodily harm, with aggravating circumstances), part 2 of Article 112 (premeditated infliction of actual bodily harm, with aggravating circumstances), part 3 of Article 205 (terrorism, with aggravating circumstances), part 1 of Article 208 (operating an illegal armed group), part 3 of Article 222 (illegal acquisition, transfer, sale, storage, transportation, or bearing of firearms, ammunition or explosives, with aggravating circumstances), Article 279 (armed mutiny) and part 1 of Article 327 (forgery of official documents) of the Criminal Code of the Russian Federation and part 3 of Article 144 (theft, with aggravating circumstances) of the Criminal Code of the Russian SFSR. It was noted that, according to the investigation materials, the applicant had committed, among others, the following criminal acts: (a) in 1999 in Dagestan, he participated in “armed mutinies” with the purpose of overthrowing the constitutional government and violating the territorial integrity of the Russian Federation; (b) on 9 May 2002 in Kaspiysk, he had been in charge of the unlawful armed group which had committed the bombing attack in Kaspiysk that had resulted in the deaths of 43 people and injured 138 people; (c) at an unspecified time, he had used a false passport; and (d) in 1995 and 1996, the applicant, as a member of an organised group, had committed acts of burglary and theft in the Republic of Kalmykia and in the Rostov Region.

11. On 29 July 2006, in accordance with the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”), the applicant was temporarily extradited to Russia for a period of three months pursuant to a decision of the Prosecutor General. The period of “temporary extradition” was subsequently extended while the applicant was in Russia.

12. According to the applicant, after his transfer to the Russian Federation, he was initially detained in several SIZO and other detention facilities in Dagestan, including one in Khasavyurt and one in Makhachkala. While he was initially questioned concerning his suspected participation in the 2002 Kaspiysk bombing, it was eventually found that he had not been involved in it and the charges in this respect were dropped.

13. By a judgment of 13 December 2006 of the Novolaksk District Court in Dagestan the applicant was convicted under part 2 of Article 208 (participation in an unlawful armed group), part 1 of Article 222 (illegal acquisition, transfer, sale, storage, transportation, or bearing of firearms, their basic parts, ammunition, explosives, or explosive devices) and part 1 of Article 327 (forgery of an identification document or other official documents conferring rights and privileges) of the Criminal Code of the Russian Federation and sentenced to five-and-a-half years’ imprisonment. It was found that the applicant had committed, among others, the following criminal acts: in 1999 the applicant had fought against the Russian federal forces as a member of illegal armed groups in Chechnya and Dagestan; from 2000 to 2003 he had carried out various instructions issued by K.A., a commander of an illegal armed group in Makhachkala, had been in close contact with the other members of that group and had lived clandestinely with them in various flats in Makhachkala and Khasavyurt; and in August 2003, he had obtained a false passport and had illegally crossed the Russian-Azerbaijani border under a false name.

14. Following this, the applicant was transferred to Astrakhan and Pyatigorsk, and from there to Elista, in the Republic of Kalmykia. On 18 April 2007 the Yashalta District Court, located in the Republic of Kalmykia, convicted the applicant of theft (committed in 1996) under part 2 of Article 158 of the Criminal Code of the Russian Federation and sentenced him to three years’ imprisonment. The above sentences were partly merged in accordance with Article 69 of the Criminal Code of the Russian Federation, resulting in a final sentence of six years’ imprisonment.

15. According to the applicant he was subjected to ill-treatment during his temporary extradition in Russia. He alleged that he had been beaten and humiliated during the investigation proceedings and detained in appalling conditions. He also alleged that he had not had access to a legal representative and had been convicted in breach of the guarantees provided for in Article 6 of the Convention.

16. Following his conviction by the Yashalta District Court, the applicant was transferred to Derbent, Dagestan, and subsequently, on 23 June 2007, returned by the Russian authorities to Azerbaijan to serve the remainder of his sentence imposed by the Assize Court’s judgment of 19 April 2006.

17. It appears that, about a year later, in August 2008, while serving his sentence, the applicant underwent a medical examination following complaints about digestive problems. Following the examination, on 8 August 2008 the Medical Department of the Ministry of Justice of Azerbaijan informed the applicant’s lawyer about the results of a number of medical tests carried out. It stated that the tests had ruled out the existence of any bleeding in the digestive system and had found relatively minor conditions such as gastritis and duodenitis. The statement further noted that the applicant’s state of health was satisfactory and required no surgical intervention.

B. Extradition proceedings

18. On 30 June 2008 the Deputy Prosecutor General of the Russian Federation sent a letter to the Azerbaijani authorities seeking the applicant’s extradition for the purpose of execution of the six-year prison sentence imposed by the Russian criminal courts on 13 December 2006 and 18 April 2007.

19. The extradition request provided, inter alia, the following assurances:

(a) the applicant would not be subjected to torture, inhuman or degrading treatment or punishment prohibited by Article 3 of the Convention and by other relevant international treaties;

(b) the extradition was not sought for reasons of punishment on such grounds as political affiliation, race, religion or ethnic origin;

(c) in accordance with the Minsk Convention, the applicant would only be subject to criminal punishment for the offences in respect of which his extradition was sought and he would be free to leave the territory of the Russian Federation after having served his sentence.

20. However, in response, the Prosecutor General’s Office of the Republic of Azerbaijan informed the Russian authorities that, at that time, the extradition request could not be granted owing to the fact that the applicant was serving his sentence imposed by the judgment of the Assize Court of 19 April 2006 and that this sentence would expire on 25 July 2012.

21. On 28 June 2012 the Russian authorities renewed the extradition request of 30 June 2008, asking the Prosecutor General’s Office of Azerbaijan to take a decision on the applicant’s extradition after he had completed serving his sentence in Azerbaijan.

22. Following receipt of that request, the Nizami District Prosecutor’s Office applied to the Nizami District Court for an order authorising the applicant’s detention pending extradition, which was granted on 13 July 2013 (see paragraph 29 below).

23. On 3 August 2012 the Prosecutor General of the Republic of Azerbaijan granted the Russian authorities’ request and ordered the applicant’s extradition to the Russian Federation under the Minsk Convention. He referred to the fact that the applicant had been convicted in the Russian Federation for acts which were considered to be criminal offences under Azerbaijani legislation and were punishable with imprisonment (Articles 279.1, 228.1, 320.1, 177.2.1, 177.2.3 and 177.2.4 of the Criminal Code), as well as to the fact that the applicant was a Russian national and was not an Azerbaijani national. Accordingly, there were no legal obstacles to the applicant’s extradition.

24. The applicant’s lawyer lodged an appeal with the Sabayil District Court challenging the Prosecutor General’s extradition order. Among other things, he argued that, if extradited, the applicant would be subjected to torture and inhuman treatment in the Russian Federation. He noted that, under applicable Azerbaijani law, existence of a risk of ill-treatment was one of the grounds requiring a refusal to extradite.

25. On 23 August 2012 the Sabayil District Court upheld the Prosecutor General’s extradition order of 3 August 2012 as lawful, referring to the same grounds as the Prosecutor General. The applicant’s lawyer, but not the applicant himself, was present at the hearing.

26. The applicant appealed, arguing that there was a real risk of his being subjected to ill-treatment if he was extradited.

27. On 3 September 2012 the Baku Court of Appeal upheld the decision of the Sabayil District Court, referring to the same grounds as the Prosecutor General and the Sabayil District Court. The applicant and his lawyer were present at the hearing. No further appeal lay against the Baku Court of Appeal’s decision.

28. On 20 September 2012 the Prosecutor General’s Office of the Russian Federation sent a letter to the Prosecutor General’s Office of Azerbaijan, stating, inter alia, the following: (a) during his stay in Russia from July 2006 to June 2007 under the temporary extradition order, the applicant had not lodged any complaints with the Russian authorities concerning ill-treatment or any other violations of his rights; and (b) the period of the applicant’s detention in Azerbaijan pending extradition to Russia, starting from 25 July 2012 (the date of expiry of his prison sentence imposed by the Azerbaijani courts), would be credited as part of the total sentence of six years’ imprisonment imposed by the Russian courts.

C. Court decisions concerning the applicant’s detention pending extradition

29. As noted above, based on an application by the Nizami District Prosecutor’s Office, on 13 July 2012 the Nizami District Court ordered the applicant’s detention, for a period of one month, pending his extradition to the Russian Federation.

30. It appears that, subsequently, on 18 September and 11 October 2012 the Khazar District Court extended the period of detention until 13 October and 13 December 2012, respectively. No copies of these decisions were submitted to the Court.

31. On 6 December 2012 the Khazar District Court extended the period of the applicant’s detention by two months (until 13 February 2013), noting that the applicant’s extradition had been suspended in compliance with the interim measure indicated to the Azerbaijani Government by the Court under Rule 39 of the Rules of the Court. Among other things, the Khazar District Court found that the applicant’s arguments concerning the risk of ill-treatment were unsubstantiated, referring to the letter of the Russian Prosecutor General’s Office of 20 September 2012 stating that the applicant had not complained of ill-treatment during his temporary extradition in 2006 and 2007 and to the fact that, since his return to Azerbaijan in July 2007 and until the extradition order of 3 September 2012, the applicant had not raised any complaints before the Azerbaijani authorities of ill-treatment in Russia in 2006 and 2007.

32. No further extension decisions are available in the case file.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL TREATIES

A. Constitution

33. Part II of Article 148 establishes that international treaties to which the Republic of Azerbaijan is a party constitute an integral part of the legal system of the Republic of Azerbaijan.

B. Code of Criminal Procedure (CCrP)

34. Chapter LVII of the CCrP deals with legal assistance in criminal matters. Article 495.1 provides that upon receipt of a request for extradition and a copy of a detention order from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures to have the person arrested and detained before a decision on that person’s extradition is taken. Article 496.1 provides that a person who is in the territory of the Republic of Azerbaijan shall be extradited by the prosecuting authority with a view to criminal prosecution or enforcement of a sentence, taking into consideration the requirements and conditions set out in Article 496.2-496.7 of the Code, on the basis of an official request for his extradition from the competent authority of the foreign State concerned.

35. Article 496.5.3 states that the extradition request can be refused if the person whose extradition is sought is persecuted on political, racial or religious grounds. Moreover, Article 492.1 provides that legal assistance to a foreign State in criminal matters may be refused in cases specified in Article 3.1 of the Law on Legal Assistance in Criminal Cases (see below).

36. Under Article 495.5, a person detained with a view to extradition can challenge the prosecuting authorities’ decisions before the courts. Such an action is examined under the procedure established in Articles 442-454 (Chapter LII). In particular, Article 449 provides that the accused (or the suspected) person or a person whose rights and freedoms are affected can challenge various acts or decisions of the prosecuting authorities, including decisions concerning detention or forcible procedural measures. The judge examining the legality of the prosecuting authorities’ acts and decisions can quash them if found to be unlawful (Article 451).

C. Law on Legal Assistance in Criminal Cases of 29 June 2011

37. Article 2.1 states that legal assistance in criminal matters comprises actions by the Azerbaijani authorities taken further to a request by a foreign State in connection with a criminal case pending investigation or judicial examination by that State’s competent authorities.

38. Article 3.1 provides that such legal assistance shall be refused if, inter alia, there are grounds to believe that the request for legal assistance is made with the purpose of persecution of the person concerned on the grounds of race, ethnicity, language, religion, nationality, political views or gender.

D. Law on Extradition of 15 May 2001

39. Articles 3.2.2 and 3.2.3 state that an extradition request may be refused if there are grounds to believe that the person whose extradition is sought would be subjected to torture or cruel, inhuman or degrading treatment or punishment in the receiving State, or that he or she is persecuted on the grounds of race, ethnicity, language, religion, nationality, political views or gender.

E. The 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”)

40. This Convention, to which both Azerbaijan and Russia are parties, provides that, in executing a request for legal assistance, the requested party applies its domestic law (Article 8 § 1).

41. The contracting parties shall, at each other’s request, extradite persons in their territory for criminal prosecution or to serve a sentence (Article 56 § 1). Extradition to serve a sentence shall extend to offences which are criminally punishable under the laws of the requesting and requested contracting parties, and which entail at least six months’ imprisonment or a heavier sentence (Article 56 § 3).

42. A person being extradited may not – other than with the consent of the requested party – be held criminally responsible or punished for any crime committed before the extradition, unless such crime constitutes the reason for such extradition. Nor may such person be extradited to any third State other than with the consent of the requested party (Article 66 §§ 1 and 2).

43. The prosecutors general of the contracting parties are responsible for dealing with matters concerning extradition and criminal prosecution (Article 80).

III. RELEVANT INTERNATIONAL REPORTS

A. Report by the Commissioner for Human Rights of the Council of Europe following his visit to the Russian Federation from 12 to 21 May 2011, dated 6 September 2011 (Issues reviewed: Human rights situation in the North Caucasus Federal District (Kabardino-Balkaria, North Ossetia-Alania, the Chechen Republic and Ingushetia))

44. The main aim of the above visit of the Council of Europe Commissioner for Human Rights was to review the human rights situation in the North Caucasus in the course of the regular field visits that Commissioner Thomas Hammarberg, like his predecessor, conducted. The report noted that, despite certain positive steps to improve the quality of life of the people living in the region, the situation in the North Caucasus continued to present major challenges for the protection of human rights. The Commissioner identified as some of the most serious problems in terms of the protection of human rights in the republics visited the issues of (i) counter-terrorism measures, (ii) abductions, disappearances and ill-treatment, (iii) combating impunity and (iv) the situation of human rights defenders. The report included the Commissioner’s observations and recommendations in relation to those topics.

45. The Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions, disappearances and ill-treatment of people deprived of their liberty in the North Caucasus. While the number of abductions and disappearances in Chechnya might have decreased in the more recent period compared to 2009, the situation remained far from normal. The issue of torture and ill-treatment of persons deprived of their liberty was the subject of a number of allegations brought to the Commissioner’s attention in relation to various parts of the North Caucasus. The information indicative of ill-treatment he received was of a serious nature and required decisive action on the part of the authorities. Most of the allegations received related to treatment of persons by law-enforcement officials; however, some allegations of physical ill-treatment related to a pre-trial detention centre (SIZO). The Commissioner also received documents from lawyers of persons remanded in custody which were indicative of inaction on the part of prosecutorial authorities in the face of clear allegations and other information concerning ill-treatment.

B. Concluding observations on the fifth periodic report of the Russian Federation, adopted by the UN Committee against Torture at its forty-ninth session (29 October-23 November 2012)

46. The following are the relevant excerpts from the section titled “Principal subjects of concern and recommendations” of the concluding observations:

“Torture and ill-treatment

6. The Committee is concerned over persistent reports of the widespread practice in the State party of torture and ill-treatment of detainees, including as a means to extract confessions. It notes the discrepancy between the large number of complaints of torture and ill-treatment and the relatively small number of criminal cases brought in response leading to prosecution. The Committee is also concerned about the State party’s statement in its report that no cases of torture or cruel, inhuman or degrading treatment or punishment had been found in remand centres, whereas the Committee is aware of many recent reports documenting acts of torture in such centres ...

Coerced confessions

10. The Committee is concerned about numerous allegations that persons deprived of their liberty were subjected to torture or ill-treatment for the purpose of compelling a forced confession, and that such confessions were subsequently admitted as evidence in court in the absence of a thorough investigation into the torture allegations. ...

Northern Caucasus

13. The Committee is concerned at numerous, ongoing and consistent reports of serious human rights abuses inflicted by or at the instigation or with the consent or acquiescence of public officials or other persons acting in official capacities in the northern Caucasus, including the Chechen Republic, including torture and ill-treatment, abductions, enforced disappearances and extrajudicial killings. It is further concerned at the State party’s failure to investigate and punish the perpetrators of such abuses ...

Conditions of detention

18. While welcoming measures by the State party to reduce the prison population through use of alternatives to detention and by excluding pretrial detention for a number of economic crimes, the Committee remains concerned about reports of (a) remaining overcrowding in detention facilities; (b) the high number of suicides in places of detention; (c) the lack of independent medical officials available to examine prisoners claiming to be victims of abuse; (d) long delays experienced by individuals claiming to be victims of torture seeking a medical forensic examination; (e) lack of adequate psychiatric services within the penitentiary system; and (f) lack of information about the existing system for protecting complainants from censorship of their complaints and reprisals.”

C. Shadow Report by Russian NGOs on the Observance of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the Russian Federation for the period from 2006 to 2012, dated October 2012, submitted to the UN Committee against Torture in connection with the fifth periodic report of the Russian Federation

47. As for conditions of detention and alleged instances of ill-treatment of detainees, the information in this lengthy and detailed report focused in the main on the situation in various pre-trial detention centres throughout the country rather than on post-conviction institutions. The report described, in detail, various problems and shortcomings concerning the conditions of detention, again mostly in pre-trial detention centres.

48. The report also noted that the analysis of cases handled by human rights organisations indicated that in most ill-treatment cases complaints concerned torture and ill-treatment by Interior Ministry personnel. Material available to the human rights organisations suggested that police might use torture against detained suspects in order to obtain information about a crime or a confession. In addition, there were cases where torture had been used against individuals who were not criminal suspects.

49. According to one of the NGOs, from the beginning of 2010 to February 2011, they received more than 200 complaints of psychological and physical abuse against inmates in penal colonies, prisons and pre-trial detention centres. Most complaints of abuse came from correctional facilities in the Kemerovo, Chelyabinsk, Bryansk, Vladimir, Kirov, Saratov, Tver, Samara, Ulyanovsk and Omsk Regions, as well as Mordovia, Udmurtia, Bashkiria, the Yamal-Nenets Autonomous District and Krasnoyarsk. Yet there were several prisons, penal colonies and pre-trial detention centres that had no record of torture complaints, which did not always mean there was no abuse but could say more about the secured nature of the institution, where prisoners could be precluded from filing abuse complaints. Prosecution of employees of the Penal Enforcement System for torture and physical abuse was very rare and usually happened if a certain case received widespread publicity.

50. As for the measures directed at improving conditions of detention, it was noted that in recent years the situation had slightly improved. Mostly, this concerned inmates in post-conviction institutions. Serious problems still remained in pre-trial detention centres.

51. In connection with violence by penal/correctional officers against members of ethnic, racial or religious minorities, the Russian human rights organisations had observed that the ethnic, racial and religious composition of applicants seeking their assistance in cases of alleged torture was consistent with the ethnic, racial and religious make-up of the region concerned. Known appeals to human rights organisations did not indicate a massive practice of torture with the purpose of discrimination on racial, ethnic and religious grounds.

D. Other reports

52. The Court’s recent judgments in Bajsultanov v. Austria (no. 54131/10, §§ 45-49, 12 June 2012), I.K. v. Austria (no. 2964/12, §§ 42-46 and 52-55, 28 March 2013) and I v. Sweden (no. 61204/09, §§ 34-38, 5 September 2013) contain summaries of a number of other recent reports authored by Amnesty International, Human Rights Watch, Schweizerische Flüchtlingshilfe (the Swiss Refugee Council) and the Danish Immigration Service.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

53. The applicant complained that his extradition to the Russian Federation would put him at imminent risk of torture and inhuman treatment in breach of Article 3 of the Convention, which reads as follows:

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

A. Admissibility

54. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

55. The applicant submitted that there were serious grounds for believing that he would be subjected to inhuman and degrading treatment in Russia, like many other Chechens who had fought in the war against the federal forces. In support of this, he submitted a copy of a one-page statement by an organisation called the Chechen Refugee Council in Azerbaijan, containing a list of about thirty Chechen refugees in Azerbaijan, some of whom had allegedly been “illegally” transferred to Russia and, out of those so transferred, some had been allegedly killed or disappeared there (the list does not provide full names of all those persons, and does not provide any details such as the basic circumstances of each alleged case, any relevant dates, or whether any of them were killed during the active phase of the war or afterwards).

56. The applicant claimed that the Russian authorities’ motivation for requesting his extradition was “to exact revenge” on him for his participation in the war. He further noted that, in his particular case, he was sought on suspicion of having been involved in the 2002 bombing in Kaspiysk and, as such, faced an increased chance of being punished by ill-treatment.

57. He submitted that, during his temporary extradition in 2006 and 2007, he had been subjected to various forms of ill-treatment in various detention facilities in Dagestan. Initially, he had been pressured to confess to having committed the terrorist act in Kaspiysk, which he had had nothing to do with. To this end, in a SIZO and a police office in Makhachkala, he had been beaten with plastic bottles and subjected to various forms of psychological ill-treatment, such as being constantly screamed at, treated in a humiliating manner during interrogations, and being placed in a cell which he claimed had been stained with previous detainees’ blood and from where he had been able to hear screams of people in neighbouring cells. In Khasavyurt, he had been detained in very poor conditions. His cell had been small (around 3.75 sq. m.), very humid and full of mosquitoes. In March 2007 the applicant’s wife had travelled from Azerbaijan to visit him in Khasavyurt. Upon her arrival, the deputy director and another SIZO official had invited her into a separate room where they had asked her to become their concubine and had appeared ready to rape her, but had been prevented from doing so by another official who had happened to enter the room. The applicant further submitted that, following his transfer to Elista, he had also been beaten there on one occasion.

58. According to the applicant, he currently suffers from permanent abdominal bleeding of an unknown origin.

59. The applicant further argued that the criminal proceedings against him in Russia had been unfair and had lacked the basic guarantees of a fair trial, such as effective access to a lawyer. He also argued that his sentence of six years’ imprisonment should be treated as concurrent with the seven years’ imprisonment he had served following his conviction in Azerbaijan and that, therefore, he should not be extradited to serve the sentence imposed by the Russian criminal courts.

(b) The Government

60. The Government considered that there were no substantial grounds for believing that the applicant would be exposed to a real risk of ill-treatment if extradited to Russia.

61. As to the alleged ill-treatment during the applicant’s temporary extradition in 2006 and 2007, the Government referred to a letter of 20 September 2012 by the Prosecutor General’s Office of the Russian Federation addressed to the Prosecutor General’s Office of the Republic of Azerbaijan, stating that the applicant had not lodged any formal complaints of ill-treatment during the criminal proceedings in Russia in 2006 and 2007.

62. As to the pending extradition proceedings, the Government noted that the Russian authorities had provided all necessary guarantees stipulated in the relevant international treaties that the applicant would not be subjected to ill-treatment. The Government considered that a refusal by the Azerbaijani authorities to extradite the applicant to Russia would not be in the interests of justice and would allow a convicted person to escape punishment.

(c) The third party

63. The Government of the Russian Federation noted that the applicant had been convicted of a number of serious criminal offences and that the refusal to extradite the applicant for the purpose of serving his sentence might seriously harm the interests of the requesting State and limit its ability to fight organised crime. The third-party Government emphasised that the criminal offences committed by the applicant had not been of a political nature. They further reaffirmed the guarantees previously given to the authorities of Azerbaijan. In particular, they noted that, after having served his sentence, the applicant would be free to leave the Russian Federation, that he would not be extradited to a third State without the consent of the Government of Azerbaijan, and that he would not be subjected to torture or inhuman or degrading treatment or punishment.

2. The Court’s assessment

(a) General principles

64. Extradition by a Contracting State may give rise to an issue under Article 3, thereby engaging the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the requesting country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161).

65. In determining whether it has been shown that the applicant runs a real risk, if extradited, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu (see Cruz Varas and Others v. Sweden, 20 March 1991, § 75, Series A no. 201). In cases such as the present, the Court must examine the foreseeable consequences of the applicant being extradited to the requesting country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 in fine, Series A no. 215). To that end, as regards the general situation in a particular country, the Court has often attached importance to the information originating from various reliable and objective sources such as, for instance, agencies of the United Nations, reputable domestic or international human-rights protection associations, or other Contracting or non-Contracting States (see, for example, Chahal v. the United Kingdom, 15 November 1996, §§ 99-100, Reports of Judgments and Decisions 1996‑V; Saadi v. Italy [GC], no. 37201/06, §§ 143-146, ECHR 2008; and Ismoilov and Others v. Russia, no. 2947/06, §§ 120-23, 24 April 2008). The Court has also taken into account reports by the Commissioner for Human Rights of the Council of Europe (see, for example, Bajsultanov, cited above, §§ 38-42, and I v. Sweden, cited above, §§ 27-31).

66. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence is adduced, it is for the Government to dispel any doubts raised by it (see, among other authorities, Nnyanzi v. the United Kingdom, no. 21878/06, § 53, 8 April 2008).

67. With regard to the material date, the existence of a risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of extradition. However, if the applicant has not yet been removed when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi, cited above, § 133, and Chahal, cited above, §§ 85-86). A full and ex nunc assessment is called for, as the situation in a country of destination may change over the course of time. Even though the historical position is of interest insofar as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007).

(b) Application of those principles to the present case

68. The Court now has to assess whether there is a real risk that, if extradited to the Russian Federation, the applicant would be subjected to treatment proscribed by Article 3. In line with its case-law and bearing in mind that the applicant has not yet been extradited owing to the indication of an interim measure under Rule 39 of the Rules of Court, the material date for the assessment of that risk is that of the Court’s consideration of the case.

69. In the applicant’s submission, his fears of possible ill-treatment in Russia are justified by the following factors. Firstly, in the applicant’s view, the mere fact that he is a Chechen who participated in military activities against the Russian federal forces is a risk factor. Secondly, he would personally run an even greater risk of ill-treatment because the Russian authorities suspected him of involvement in the 2002 Kaspiysk bombing and because he already had a history of ill-treatment by the Russian authorities during his temporary extradition in 2006 and 2007.

70. The Court notes that the country reports for Russia still reflect a situation of danger and arbitrary abuse with regard to certain categories of people, such as (former) rebels and their relatives. Furthermore, there were reports of physical abuse of suspects by police officers, occurring usually within the first few days after arrest. As to the situation in the North Caucasus and Chechnya in particular, the situation still indicates occurrences of arbitrary violence, abductions, disappearances, impunity, and torture and ill-treatment in pre-trial detention centres and “unofficial” prisons.

71. However, the Court considers that the applicant is not facing the specific risks described above. In the present case, the purpose of the requested extradition is for the applicant to serve a sentence of imprisonment already imposed by the Russian criminal courts. If extradited, the applicant would be officially serving his sentence in a State-run penal facility for convicted prisoners (a prison or a correctional facility). There is a possibility he would be placed in a correctional facility far from the North Caucasus for security reasons, as was the reported practice in respect of many offenders from that region. Accordingly, the applicant is not facing a mere deportation to Chechnya or other areas in the North Caucasus (contrast Bajsultanov, I.K. v. Austria and I. v. Sweden, all cited above), nor is it likely that he would be placed in a remand prison or other pre-trial detention facility, or in a secret prison.

72. As for any risk of ill-treatment in a penal facility for convicted prisoners, the Court notes that various country reports, obtained by it proprio motu, state that conditions in prisons and detention centres across Russia vary but are sometimes harsh, specifying such conditions as overcrowding, limited access to health care, food shortages, abuse by guards and inmates, and inadequate sanitation. However, it appears that those problems are reported in remand prisons in which only remand prisoners are accommodated. Moreover, none of these reports mention any noteworthy problems in connection with the treatment and detention conditions afforded in correctional facilities in general or, in particular, any incidents involving former Chechen rebels or other persons of Chechen origin.

73. The Court itself has had to deal with a large number of applications concerning conditions of detention in various custodial facilities in Russia. However, the absolute majority of applications lodged with the Court where it has found a violation of Article 3 have concerned remand prisons (see the Annex in Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, for a list of final judgments in which at least one violation of Article 3 was found on account of inadequate conditions of detention in remand prisons). By contrast, no serious structural problems have yet been identified in respect of conditions of detention in post-conviction facilities such as correctional colonies or prisons, where the applicant would be serving his sentence.

74. Based on the available material, the Court considers that it has not been shown to the required standard of proof that the situation in Russian penal facilities for convicted prisoners is such as to call for a total ban on the extradition of convicted prisoners to that country, for instance on account of conditions of detention or a risk of ill-treatment of detainees.

75. Turning to the applicant’s personal circumstances, the Court notes that it is true that he was initially sought by the Russian authorities on suspicion of being one of the perpetrators of the 2002 bombing in Kaspiysk. However, according to the documents in the case file and the applicant’s own submissions, those charges were dropped prior to the trial stage of the criminal proceedings conducted against him in Russia. While he was eventually convicted of participation in military operations against the federal forces, it appears that he was not found to have had any prominent role in the Second Chechen War.

76. As to the alleged ill-treatment during his temporary extradition in 2006 and 2007, the Court notes, firstly, that the applicant’s description of the alleged ill-treatment was brief, sketchy and lacking detail. Secondly, after his return to Azerbaijan in July 2007 and knowing full well that another set of extradition proceedings awaited him in the future, he did not raise any complaints with the Azerbaijani authorities concerning the alleged ill-treatment and did not seek a forensic examination immediately or soon after his return, in order to confirm any injuries. The Court considers that requesting a forensic examination, which is a procedure normally available in Azerbaijan (see Mammadov v. Azerbaijan, no. 34445/04, § 20, 11 January 2007; Muradova v. Azerbaijan, no. 22684/05, § 26, 2 April 2009; and Rizvanov v. Azerbaijan, no. 31805/06, § 14, 17 April 2012), would be a reasonable and expected course of action for a person in the applicant’s situation who had access to a lawyer in Azerbaijan and who claimed that he had just been ill-treated during his temporary stay in Russia and who knew that another extradition request was likely after he finished serving his sentence in Azerbaijan.

77. The applicant further claimed that he is currently suffering from permanent abdominal bleeding “of an unknown origin”, presumably implying that it was a consequence of his alleged ill-treatment during his time in Russia in 2006 and 2007. However, this claim is not confirmed by the statement issued on 8 August 2008 by the Medical Department of the Ministry of Justice of Azerbaijan, submitted to the Court by the applicant himself. This document, issued at the request of the applicant’s lawyer, noted that in August 2008 a number of medical tests had been carried out on the applicant. In conclusion, it specifically stated that the tests had ruled out the existence of any bleeding in the digestive system and had only found relatively minor and common conditions such as gastritis and duodenitis. The statement further noted that the applicant’s state of health was satisfactory and required no surgical intervention. No other medical documents have been submitted by the applicant.

78. In such circumstances, the Court finds that the applicant has not been able to convincingly substantiate his claims that he was previously subjected to ill-treatment in Russia. In any event, the Court notes that, as noted above, the relevant date for the assessment of the risk of ill-treatment in the present case is that of the Court’s consideration of the case and, as has already been stated, the applicant is currently in a different situation compared to the first, temporary extradition in 2006. This time, he will not be subject to questioning by police or investigation authorities and it appears that he will not be placed in police custody or detained in a pre-trial detention facility. Therefore, he will not be facing the same risks of ill-treatment (usually associated with those procedures and facilities) that he might have faced during his temporary extradition.

79. Having regard to the above, the Court concludes that it has not been established in the applicant’s case that there are substantial grounds for believing that he would be exposed to a real risk of ill-treatment in the event of his extradition to Russia.

80. The Court further attaches importance to the fact that the case concerns extradition to a High Contracting Party to the European Convention on Human Rights, which has undertaken to secure the fundamental rights guaranteed under this provision (see Tomic v. the United Kingdom (dec.), no. 17837/03, 14 October 2003; Hukić v. Sweden (dec.), no. 17416/05, 27 September 2005; Harutioenyan v. the Netherlands (dec.), no. 43700/07, 1 September 2009; Barnic v. Austria (dec.), no. 54845/10, 13 December 2011; and Bajsultanov, cited above, § 70).

81. As for the applicant’s arguments concerning the alleged unfairness of the completed criminal proceedings against him in Russia and the alleged unlawfulness of the sentence imposed, the Court notes that these arguments are extraneous and irrelevant for the purposes of the present complaint against Azerbaijan under Article 3 of the Convention. In so far as these arguments might have been relevant in relation to alleged breaches by Russia of the applicant’s rights under other Convention provisions, the applicant has not lodged any complaints against the Russian Federation in that respect.

82. The Court concludes that the applicant’s extradition to the Russian Federation would not amount to a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3

83. Relying on Articles 6 and 13 of the Convention, the applicant complained that the domestic extradition proceedings had not constituted an effective remedy whereby he could have challenged his extradition on the grounds of the existence of a risk of torture or ill-treatment in the event of his extradition. The Court considers that this complaint falls to be examined under Article 13 of the Convention in conjunction with Article 3 of the Convention, and does not raise any issues under Article 6. Article 13 provides as follows:

“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.”

A. Admissibility

84. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

85. The Government submitted that the applicant had had an effective remedy under Articles 449-451 of the CCrP, which provide that any decision of the prosecuting authorities could be challenged before the domestic courts, which had competence to review the lawfulness of the impugned decision and to either uphold or quash it.

86. The Government further submitted that the competent Azerbaijani authorities had examined the applicant’s complaints that he had been subjected to torture and ill-treatment during his temporary extradition to Russia. In particular, the Khazar District Court, while ordering the extension of the period of the applicant’s detention pending extradition, had examined his submissions concerning his alleged ill-treatment during his temporary extradition to Russia and had found them unsubstantiated, because he had never previously lodged any related complaints with either the Azerbaijani or Russian authorities. Therefore, the Government considered that the applicant had had an effective domestic remedy for his complaint under Article 3 at his disposal.

87. The applicant reiterated his complaint.

2. The Court’s assessment

88. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 of the Convention is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 of the Convention varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see, among other authorities, Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996-VI; Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 288, ECHR 2011).

89. In the context of extradition, given the irreversible nature of the harm that might occur if the alleged risk of torture or ill‑treatment materialises and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there is a real risk of treatment contrary to Article 3 in the event of the applicant’s extradition to the country of destination, and (ii) the provision of an effective means of suspending the enforcement of measures whose effects are potentially irreversible (see Muminov v. Russia, no. 42502/06, § 101, 11 December 2008, with further references).

90. The Court observes that the applicant’s complaint under Article 3 of the Convention was declared admissible and was examined on the merits. Although the examination on the merits resulted in the finding that the extradition would not amount to a violation of Article 3, the applicant’s complaint was nevertheless “arguable” for the purpose of Article 13 of the Convention (compare, for example, Andrei Georgiev v. Bulgaria, no. 61507/00, § 67, 26 July 2007, and Mohammed v. Austria, no. 2283/12, §§ 85 and 111, 6 June 2013). Thus it remains to be established whether the applicant was afforded an effective remedy to challenge the extradition order on the grounds of the alleged existence of a risk of torture or ill-treatment.

91. At the outset, the Court notes that it cannot accept the Government’s argument that the requirements of Article 13 were satisfied because the Khazar District Court examined the applicant’s complaints of ill-treatment. Firstly, the Khazar District Court was only called upon to decide whether to extend the period of the applicant’s detention pending extradition; it did not examine any appeals against the extradition order itself (see paragraph 31 above). For that reason, it could not grant any appropriate redress in respect of the applicant’s complaints, as it was not in a position to quash the extradition order. Secondly, in any event, according to the Government’s own admission, the domestic court only undertook a limited assessment of the applicant’s complaints of ill-treatment that he submitted had taken place during his temporary extradition in 2006 and 2007, and did not assess any potential risks of ill-treatment facing the applicant if he were to be extradited at the end of the currently pending extradition proceedings. Therefore, no assessment of the applicant’s Article 3 complaint was in fact made by the Khazar District Court.

92. The Court further notes that the extradition order of 3 August 2012 was delivered by the Prosecutor General. The applicant challenged this extradition order by lodging appeals with the Sabayil District Court and subsequently the Baku Court of Appeal under the procedure provided for by Articles 449-451 of the CCrP (see paragraphs 24-27 above), which the Government argued was an effective avenue of redress because the domestic courts were competent under this procedure to review the lawfulness of the extradition order and, if appropriate, to quash it.

93. In this connection, the Court reiterates that judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints arising in the context of expulsion and extradition, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002‑II (extracts)). However, the Court notes that, despite the fact that the applicant had explicitly complained before the Sabayil District Court and the Baku Court of Appeal of the risk of torture or ill-treatment and that his allegations in this regard were arguable, the domestic courts ignored his arguments and their decisions were silent in this regard (compare Garayev v. Azerbaijan, no. 53688/08, § 84, 10 June 2010). It does not appear that the courts ever took these considerations into account when they examined the question of the applicant’s extradition (see paragraphs 25-27 above), even though they were required to do so not only under the Convention, which was directly applicable in the Azerbaijani legal system, but also under the substantive provisions of the domestic law on extradition detailing the situations in which extradition should be refused (see paragraphs 35 and 38-39 above).

94. In such circumstances, the Court finds that the applicant was denied an effective domestic remedy by which to challenge his extradition on the grounds of the risk of torture or ill-treatment. Consequently, there has been a violation of Article 13 of the Convention.

III. RULE 39 OF THE RULES OF COURT

95. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until: (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.

96. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

97. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

98. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT,UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that the applicant’s extradition to the Russian Federation would not violate Article 3 of the Convention;

3. Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention;

4. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to extradite the applicant until such time as the present judgment becomes final or until further order.

Done in English, and notified in writing on 14 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

 

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