FIRST SECTION
CASE OF NABID ABDULLAYEV v. RUSSIA
(Application no. 8474/14)
JUDGMENT
STRASBOURG
15 October 2015
FINAL
14/03/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nabid Abdullayev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 22 September 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 8474/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Kyrgyz national, Mr Nabid Mamadzhanovich Abdullayev (“the applicant”), on 27 January 2014.
2. The applicant was represented by Ms E. Davidyan, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant argued that his extradition to the Kyrgyz Republic (Kyrgyzstan) would expose him to the risk of ill-treatment and that there had been no speedy and effective judicial review of his detention pending extradition.
4. On 28 January 2014 the Acting President of the First Section decided in the applicant’s case to apply both Rule 39 of the Rules of Court, indicating to the Government that he should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court, and Rule 41 of the Rules of Court, granting priority treatment to the application.
5. On 15 May 2014 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1961 and lives in the town of Artyom, in the Primorye Region.
A. The applicant’s background prior to his criminal prosecution
7. The applicant is a Kyrgyz national of Uzbek ethnic origin. He originally lived in the town of Osh in Kyrgyzstan.
8. In June 2010, which was a time of mass disorders and interethnic clashes in the region, the applicant had been the head of the territorial board of a municipal authority in which most residents were ethnic Uzbeks. He was, according to him, considered as a leader of the local Uzbek community.
9. After the clashes, the applicant had repeatedly been invited by the Kyrgyz investigative bodies for questioning as a witness.
10. In June 2011 the applicant learned that criminal proceedings had been opened against him (see paragraph 12 below). The applicant submits that law-enforcement officers started to extort money from him, threatening him with imprisonment. Due to this he moved to a different city in Kyrgyzstan, to his sister’s home, where he stayed for several months.
11. Afterwards, in March 2012, the applicant left Kyrgyzstan for Russia. He settled in the Primorye Region, and after obtaining a work permit, worked as a sports instructor.
B. Criminal proceedings against the applicant in Kyrgyzstan and the ensuing extradition proceedings in Russia
12. On 16 June 2011 the Kyrgyz authorities charged the applicant with the commission of violent crimes in June 2010 (attempted murder, participation in mass disorders and unlawful firearms trafficking) and ordered his arrest. It appears that when the authorities eventually tried to execute the arrest order, the applicant had left the country (see paragraphs 10 and 11 above). The applicant was therefore put on the international wanted list.
13. On 14 March 2013 the applicant was arrested in Russia and detained in custody pending extradition
14. On 5 April 2013 the Kyrgyz authorities lodged an extradition request with the Prosecutor General of Russia, asking that the applicant be extradited to Kyrgyzstan for prosecution and trial.
15. On 16 September 2013 the Russian Prosecutor General’s Office granted the extradition request and ordered the applicant’s extradition.
16. The applicant appealed, arguing that due to his Uzbek ethnic origin the aforementioned decision would expose him to a serious risk of torture. The applicant supported his appeal through reference, inter alia, to various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev (see Makhmudzhan Ergashev v. Russia, no. 49747/11, 16 October 2012).
17. On 1 November 2013 the Primorye Regional Court rejected the applicant’s appeal against the extradition order, giving the following reasoning:
“The charges pressed against [the applicant] [by Kyrgyz authorities] are criminal offences liable to punishment in Russia ... They are not time-barred ...
Pursuant to Article 464 § 1 (1) of the Russian Code of Criminal Procedure, an extradition request lodged by a foreign state in respect of a Russian citizen should be denied ...
It is apparent from the conclusions of the Federal Migration Service (FMS) for the Primorye Region that [the applicant] is not a Russian citizen. ... He holds a Kyrgyz passport ... and is a Kyrgyz national. ...
On 28 June 2013 the FMS for Prymorye Region rejected a request from [the applicant] for refugee status in Russia.
[The applicant’s] allegations of persecution by the Kyrgyz authorities on false criminal charges on the basis of his [Uzbek] ethnic origin were addressed [within the refugee status procedure].
The lawfulness of the refusal [to grant the applicant refugee status in Russia] was confirmed by Russia’s FMS on 24 September 2013 ...
[The applicant’s] argument [that] the decision to extradite him was taken before any judicial review of the refusal to grant him refugee status is groundless.
It is apparent from the evidential material gathered during the extradition check that [the applicant] arrived in Russia ... for employment purposes and that he had not been persecuted in Kyrgyzstan on racial, national or religious grounds ...
It is likewise apparent from the evidential material gathered during the extradition check that [the applicant] lodged his request for refugee status on 16 April 2013, while being held in custody following his arrest in Russia ... , [therefore] his appeal against the decision of the FMS did not prevent the Prosecutor General’s Office from taking a decision concerning extradition, in line with ruling no. 11 of 14 June 2012 of the Plenary Session of the Russian Supreme Court ...
[The applicant] does not have immunity from prosecution [and] there are no grounds preventing his extradition.
The Prosecutor General’s Office of Kyrgyzstan provided assurances that [in the event of extradition] [the applicant] would have the benefit of [legal assistance]; that he would not be extradited to a third State; that he would be prosecuted only for the offence for which he was being extradited; that [he] would not be subjected to torture, inhuman or degrading treatment or punishment; that he was being prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any grounds; that he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence; and that Russian diplomats would be allowed access to him.
It is apparent from the above guarantees that [the applicant] is being prosecuted for ordinary criminal offences; his prosecution is not politically motivated and is not connected with his [ethnic origin].
[The applicant’s] allegations concerning his persecution on political grounds, lack of fair trial in Kyrgyzstan, and persecution of his family members by law-enforcement bodies in Kyrgyzstan are not supported by any objective data.
The court has established that [the applicant’s] wife and daughter live in Kyrgyzstan, [that there is] no substantiated information concerning their alleged persecution by the Kyrgyz authorities, [and] that they do not travel outside the territory of the Kyrgyz Republic. [The applicant himself] did not apply for refugee status until his arrest.
... The Russian Ministry of Foreign Affairs does not have any information that would prevent [the applicant’s] extradition to Kyrgyzstan.
Therefore, there are no grounds ... preventing [the applicant’s] extradition to Kyrgyzstan for criminal prosecution.
The argument of [the applicant’s] lawyer referring to international sources (report of the United Nations Special Rapporteur on Torture, report of the United Nations High Commissioner for Human Rights on technical assistance and cooperation on human rights for Kyrgyzstan, report of the United Nations Committee on the Elimination of Racial Discrimination, International Crisis Group Kyrgyzstan report) to the effect that after the interethnic clashes in the south of Kyrgyzstan in June 2010 the law‑enforcement bodies had subjected ethnic Uzbeks to torture and that there are grounds to believe that [the applicant] might be subjected to torture in the event of his extradition, is unsubstantiated. The aforementioned international documents describe the general human rights situation in Kyrgyzstan, are unspecific and unsupported by evidence, and are countered by the guarantees offered by Kyrgyz Republic, which relate directly to the applicant and are sufficient to eliminate the risk of [the applicant’s] being subjected to inhuman treatment.
[As to] the reference by the defence to ... the judgment of the European Court of Human Rights in the case of Makhmudzhan Ergashev, [the case] has no connection with [the applicant’s] case and cannot be taken into consideration.
...”
18. The applicant appealed to the Supreme Court of Russia.
19. In the meantime, on 28 January 2014 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court.
20. On 30 January 2014 the Supreme Court upheld the judgment of 1 November 2013 on appeal, endorsing the reasoning of the first-instance court:
“The court has taken into consideration the arguments of the defence and the documents submitted, including the concluding observations of the UN Committee against Torture [dated December 2013] on Kyrgyzstan’s second periodic report, in which the Committee expressed its deep concern with regard to apparent impunity regarding widespread acts of torture and ill-treatment that remained uninvestigated by the authorities of the Kyrgyz Republic ... and the report that the investigations, persecutions, convictions and punishments in connection with the events of June 2010 are mainly directed at persons of Uzbek ethnic origin.
At the same time, these circumstances cannot in themselves be considered to constitute sufficient grounds for refusing to extradite [the applicant] to the Kyrgyz Republic ...
Pursuant to Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be at risk of being subjected to torture. For the purpose of determining whether such grounds exist, the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
...
The provisions of Article 3 of the Convention against Torture imply that it is necessary not only to verify the existence in the State concerned of gross and mass violations of human rights, but also the existence in that State of the likelihood that the individual concerned would personally be at risk of torture if returned to his or her country. That risk must be real, immediate and foreseeable.
According to the legal position of the UN Committee against Torture as outlined in a number of its decisions (...), the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not of itself constitute sufficient grounds for determining whether the person in question would be at risk of being subjected to torture upon return to that country. Additional grounds must be adduced showing that the individual concerned would be personally at risk ...
The Committee ... noted that it is necessary to establish the existence of substantial grounds for believing that the person would be at risk of torture if returned, and that such risk of torture must be assessed on grounds that go beyond mere theory or suspicion. The risk need not be highly probable, but it must be personal and present. In this regard the Committee has determined, in previous decisions, that the risk of torture must be foreseeable, real and personal.
The evidential material submitted by the Prosecutor General’s Office – on the basis of which the decision to extradite [the applicant] was taken – does not contain any information demonstrating that [the latter] personally would be at risk of torture, inhuman or degrading treatment or punishment in the event of his extradition.
[A long passage on the guarantees provided by the Kyrgyz authorities].
Neither [the applicant] nor his lawyers provided any substantial evidence showing that [the former] was at risk of being subjected to torture, inhuman or degrading treatment or punishment by the Kyrgyz authorities, or that he might be persecuted on grounds [such as] race, religion, national or social origin, or political opinion.
... [The applicant] does not belong to any political or other party, organisation or group that opposes [the present government of Kyrgyzstan].
While living in Kyrgyzstan [the applicant] was not subjected to any torture, inhuman or degrading treatment by the authorities; he arrived in Russia in March 2012, that is to say a year and nine months after the crimes of which he stands accused had been committed in June 2010. [The applicant’s] wife and daughter remain in the Kyrgyz Republic.
No evidence has [therefore] been provided showing that [the applicant] or his relatives were persecuted by [the Kyrgyz] authorities.
[The applicant’s] statement to the effect that he is a “leader of Uzbek diaspora” and belongs to the ethnic Uzbeks – which allegedly gives him reason to believe that he would be subjected to repressive criminal prosecution and unfair conviction – is an assumption unsupported by any evidence. It cannot therefore be considered to constitute sufficient grounds for concluding that he is personally at risk of being subjected to torture and other ill-treatment in the event of his extradition to Kyrgyzstan.
...”
C. The applicant’s detention
21. On 16 March 2013 the Artyom Town Court in the Primorye Region ordered the applicant’s detention pending extradition until 23 April 2013.
22. On 22 April 2013 the same court extended the applicant’s detention until 14 September 2013. On the same day the applicant’s lawyer lodged an appeal against this decision. On 12 July 2013 the Primorye Regional Court upheld the extension order on appeal.
23. On 13 September 2013 the Leninskiy District Court of Vladivostok extended the applicant’s detention until 13 March 2014. On 19 September 2013 the applicant’s lawyer lodged an appeal against this decision. The appeal was dispatched by post on 20 September 2013. The Leninskiy District Court received the applicant’s appeal on 21 October 2013. On 23 October 2013 a copy of the appeal was forwarded to the applicant and the local prosecutor’s office, and the latter was invited to submit comments by 28 October 2013. On 31 October 2013 the Leninskiy District Court forwarded the case file to the Primorye Regional Court for examination. On 6 November 2013 an appeal hearing was scheduled for 7 November 2013 and the parties were informed accordingly. On 7 November 2013 the Primorye Regional Court upheld the extension order of 13 September 2013 on appeal.
24. On 7 March 2014 the deputy Prosecutor of the Primorye Region decided to release the applicant in the light of the decision of the Court to apply Rule 39 of the Rules of Court to the present case. The applicant was released on the same day.
D. Refugee proceedings
25. On 16 April 2013 the applicant lodged a request for refugee status with Russia’s FMS, alleging persecution on the grounds of ethnic origin.
26. On 28 June 2013 the FMS for the Primorye Region rejected the applicant’s request, having found that the applicant had left his country of nationality for reasons falling outside the scope of section 1(1)(1) of the Refugee Act.
27. On 24 September 2013 Russia’s FMS upheld the refusal of 28 June 2013.
28. The applicant lodged an appeal against the above decision before the Basmanniy District Court of Moscow. In his appeal he referred to reports concerning the widespread ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev.
29. On 22 January 2014 the Basmanniy District Court of Moscow rejected the applicant’s appeal against the FMS’s decisions. The District Court considered that the applicant had failed to substantiate his fears of persecution in Kyrgyzstan and that his allegations that the criminal charges against him were unlawful fell outside the scope of the refugee status proceedings. The District Court pointed out that his application for refugee status contained no indications that he had been previously accused or convicted of a criminal offence, or that he had been a member of any political, religious or military organisations. It also took into account the fact that the applicant had not applied for refugee status until after his placement in detention.
30. In his appeal against the judgment of 22 January 2014 the applicant requested a rigorous examination of his arguments regarding the risk of ill‑treatment. He again referred to various reports by international organisations and reputable NGOs to support his position.
31. On 20 May 2014 the Moscow City Court upheld that decision on appeal, reiterating the conclusions of the migration authorities and the first‑instance court.
E. Temporary asylum proceedings
32. On 25 April 2014 the FMS for the Primorye Region issued a decision granting the applicant temporary asylum in the Russian Federation until 25 April 2015, referring to the existence of circumstances preventing the applicant’s extradition, namely the application of Rule 39 of the Rules of Court in the applicant’s case before the Court and the impossibility of foreseeing the duration of those proceedings.
33. On 10 April 2015 the FMS for the Primorye Region extended the term of the temporary asylum granted to the applicant until 25 April 2016, with reference to the same grounds.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Applications for varying preventive measures
34. Article 110 of the Russian Code of Criminal Procedure (“CCrP”) provides that a preventive measure (such as detention) may be (i) cancelled, if no longer necessary, or (ii) replaced by a less or more intrusive measure if the grounds for such a measure, as indicated in Articles 97 and 99, are no longer the same.
35. Article 97 of the CCrP lists the grounds for imposing a preventive measure in a domestic criminal case, namely where there is sufficient reason to consider that the person suspected or accused of committing a criminal offence will (i) abscond from the investigation or evade justice, (ii) continue his or her criminal activity, or (iii) threaten a witness or other person involved in the criminal proceedings, destroy or tamper with evidence, or otherwise interfere with the proceedings. Article 97 also provides that a preventive measure may be imposed in relation to an extradition case.
36. Article 99 of the CCrP provides a non-exhaustive list of factors which should be taken into account when imposing a preventive measure, for instance the seriousness of the offence, information about the suspect’s personality, and also his or her age, state of health and employment status.
37. Article 119 of the CCrP lists the parties entitled to make an application in the course of criminal proceedings, such as suspects, defendants, lawyers, victims, prosecutors, experts, civil plaintiffs and other individuals whose interests have been affected at the pre-trial or trial stages. Such applications can be made to an inquiry officer, an investigator or a judge.
38. Article 120 of the CCrP provides that applications can be made at any stage of the criminal proceedings.
39. Article 121 of the CCrP provides that applications made in the course of criminal proceedings are to be examined immediately after they are made or, if immediate examination is impossible, within three days after the lodging of an application.
40. Article 122 of the CCrP provides that an inquiry officer, an investigator, a judge or a court is to take the decision to grant or to refuse the application and inform the applicant accordingly. The decision can be appealed against pursuant to the procedure laid down in Chapter 16 of the CCrP.
41. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act on the part of an investigator or a prosecutor which are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1). The competent court is the court with territorial jurisdiction over the location where the preliminary investigation is conducted (ibid.). Following examination of the complaint, a judge can issue a decision to declare the challenged act, failure to act or decision of the law-enforcement authority unlawful or unjustified and to instruct that authority to rectify the indicated shortcoming or to dismiss the complaint (Article 125 § 5).
B. Other relevant legal issues
42. For a summary of other relevant domestic law and practice see Abdulkhakov v. Russia (no. 14743/11, §§ 71-98, 2 October 2012).
III. RELEVANT INTERNATIONAL PUBLISHED MATERIAL CONCERNING KYRGYZSTAN
43. For relevant reports and items of information, see Makhmudzhan Ergashev v. Russia (cited above, §§ 30-46) and Mamadaliyev v. Russia (no. 5614/13, §§ 37-42, 24 July 2014).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
44. The applicant complained that, if extradited to Kyrgyzstan, he would be subjected to torture or inhuman or degrading treatment or punishment because he belonged to the Uzbek ethnic minority. He referred to various sources, including publications by the UN Committee against Torture, Amnesty International and Human Rights Watch. He relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
45. The Government argued that the provision of temporary asylum to the applicant could be viewed as a reason for declaring his complaint under Article 3 of the Convention inadmissible. They referred in this connection to the inadmissibility decision in the case of Tukhtamurodov v. Russia (dec.), no. 21762/14, 20 January 2015.
46. The applicant submitted that the only reason for granting him temporary asylum had been the application of Rule 39 of the Rules of Court upon presentation of his case before the Court. This was a common administrative practice with the sole purpose of ensuring his continued stay in Russia whilst his case was being considered by the Court. The decisions granting him temporary asylum therefore affected neither his status nor the likelihood of his being extradited to Kyrgyzstan if his temporary asylum were not extended, thus facing the risk of torture. The applicant stressed that in contrast to the case of Tukhtamurodov, where the national courts had cancelled the applicant’s extradition order, in his case the national courts had upheld the extradition order and he therefore continued to face imminent risk of being extradited to Kyrgyzstan.
47. In so far as the Government may be understood to argue that the applicant had lost his victim status, the Court reiterates that an individual may no longer claim to be a victim of a violation of the Convention where the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (see, among many authorities, Achour v. France (dec.) no. 67335/01, 11 March 2004, where the authorities cancelled the expulsion order against the applicant, and Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III).
48. As to the specific category of cases involving expulsion measures, the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable. It has adopted the same stance in cases where the execution of the deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Karimov v. Russia, no. 54219/08, § 89, 29 July 2010, with further extensive references).
49. The present application concerns the applicant’s extradition to Kyrgyzstan where, according to him, he would face a serious risk of ill‑treatment by the authorities on account of his Uzbek ethnic origin. The Court observes firstly that the decision concerning the applicant’s extradition was made final by the Russian authorities on 30 January 2014 (see paragraph 20 above) and secondly that the decisions granting the applicant temporary asylum were taken by the Russian authorities in April 2014 and April 2015 only as a result of the application of Rule 39 of the Rules of Court in the applicant’s case and the impossibility of foreseeing the duration of those proceedings (see paragraphs 32-33 above). Clearly, the fact that the applicant had been granted temporary asylum did not constitute an acknowledgment, either explicit or implicit, on the part of the Russian authorities that there had been or might have been a violation of Article 3 or that the applicant’s extradition order had been deprived of its legal effect.
50. In these circumstances, the Court considers that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention (compare Karimov, cited above, §§ 86-91; Niyazov v. Russia, no. 27843/11, §§ 104-107, 16 October 2012; Tukhtamurodov, cited above, §§ 37-39; and Khamrakulov v. Russia, no. 68894/13, § 61, 16 April 2015).
51. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
52. The Government submitted that the applicant’s allegations concerning the risk of treatment prohibited by Article 3 of the Convention had been thoroughly studied by the domestic courts in the proceedings concerning the applicant’s extradition and those concerning his request for refugee status. The domestic courts rightly rejected the references made by the applicant’s representative to various reports describing the general situation regarding the allegedly widespread ill-treatment of ethnic Uzbeks in Kyrgyzstan as being too general and insufficient for the purposes of blocking the applicant’s extradition. The Government expressed their firm belief that any risk of ill-treatment that might arise from the general situation in Kyrgyzstan has been completely excluded in the circumstances of the present case since the applicant’s extradition has been requested through official channels with the provision of the necessary guarantees. They further submitted that it was highly unlikely that the Kyrgyz authorities – who in 2014 had demonstrated their openness and commitment to cooperating with international organisations in fighting the ill-treatment and discrimination of ethnic Uzbeks – would breach those guarantees. The Government went on to affirm that no instances of non-compliance by the Kyrgyz authorities with the guarantees given in respect of extradited ethnic Uzbeks had been recorded so far in the course of the cooperation between Kyrgyzstan and Russia.
53. The Government noted that the Prosecutor General’s Office of the Republic of Kyrgyzstan had expressly undertaken to ensure that Russian diplomatic representatives would be given access to the applicant in the event of his extradition. They further noted with regret that, by forbidding extradition in cases similar to the present case, the Court had not yet given the Russian authorities an opportunity to demonstrate the effectiveness of such “diplomatic supervision” in practice. At the same time, within the framework of the above mechanism, the Russian Ministry of Foreign Affairs and the Kyrgyz Prosecutor General’s Office had provided information to the Russian Prosecutor General’s Office concerning the fate of several ethnic Uzbeks previously extradited to Kyrgyzstan for criminal prosecution. The information in question proves that the Kyrgyz authorities had abided by their assurances not to subject these persons to torture, inhuman or degrading treatment or punishment, thus demonstrating the unbiased attitude – and in certain cases even specific loyalty – of Kyrgyz justice towards this category of persons. The Government cited the examples of three individuals of Uzbek ethnic origin who had received a suspended sentence and had been released on parole, or whose criminal case had been dismissed. The Government further informed the Court that on 30‑31 July and 21 November 2014, and again on 24 February 2015 the diplomats of the Consulate General of Russia in Osh and of the Russian Embassy in Kyrgyzstan had visited six non-Kyrgyz persons (two of them ethnic Uzbeks charged with particularly grave crimes including aggravated murder, and one of whom had also been charged with participation in mass disorders) extradited to Kyrgyzstan earlier. The latter were satisfied with the conditions of their detention and denied having been subjected to any form of ill-treatment during preliminary investigations. No violations of their procedural rights, including the right to defence, had been recorded by the Kyrgyz law-enforcement bodies.
54. Turning to the applicant’s individual situation, the Government noted that after the events of June 2010 in Kyrgyzstan, the applicant had repeatedly been invited by the Kyrgyz investigative bodies for questioning as a witness. In June 2011 the applicant had learned that criminal proceedings had been opened against him and he had moved to a different city in Kyrgyzstan, to his sister’s home, where he had stayed for seven months. Afterwards, in March 2012, the applicant had left Kyrgyzstan for Russia. The declared aim of his trip was employment. The applicant had not requested refugee status or temporary asylum before his departure from Kyrgyzstan or directly after his arrival in Russia, and it was not until April 2013 that his request for refugee status had been lodged. The applicant had not been subjected to ill-treatment or ethnic discrimination by the Kyrgyz authorities before the institution of the criminal proceedings in question. His allegations about the extortion of money during the criminal proceedings were not supported by any evidence. Furthermore, the applicant’s wife and one of his daughters continued to reside in Kyrgyzstan, and there is no evidence that they had been subjected to ill-treatment or ethnic discrimination by the Kyrgyz authorities.
55. In the light of the foregoing, the Government expressed doubts that the applicant would face a real, immediate and foreseeable risk of being subjected to treatment contrary to Article 3 of the Convention in the event of his return to Kyrgyzstan.
(b) The applicant
56. The applicant maintained his complaint. Relying on reports by major international organisations, he argued that the general human rights situation in Kyrgyzstan had not improved since the Court’s judgment in the case of Makhmudzhan Ergashev (cited above) and that a serious risk of being subjected to ill-treatment remained for ethnic Uzbeks like him who stood accused of involvement in the June 2010 events.
57. The applicant disagreed with the Government as to the thoroughness of the assessment by the Russian courts of his arguments concerning the risk of ill-treatment in the event of his extradition to Kyrgyzstan. He noted in this respect that the decision of the Moscow City Court of 20 May 2014 had not even mentioned his arguments or references to international reports.
58. The applicant further submitted that the diplomatic assurances relied on by the Government could not suffice to protect him against the risk of ill‑treatment in the light of the criteria established in the case of Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, § 189, ECHR 2012 (extracts)). He noted, in particular, the absence of any long-established reciprocal communication between Russia and Kyrgyzstan aimed at enforcing such guarantees, the absence of any independent monitoring mechanism leading to effective protection against torture and ill-treatment in practical terms, and the absence of an effective system of protection against torture in Kyrgyzstan.
59. Finally, the applicant argued that the fact that he had not been ill‑treated before he had managed to leave Kyrgyzstan did not reduce the risk of his being ill-treated in the event of his return.
2. The Court’s assessment
(a) General principles
60. For a summary of the relevant general principles emerging from the Court’s case-law, see Umirov v. Russia (no. 17455/11, §§ 92‑100, 18 September 2012).
(b) Application of the general principles in the present case
61. The Court observes that the Russian authorities ordered the applicant’s extradition to Kyrgyzstan. The extradition order has not been enforced as a result of the application by the Court of an interim measure under Rule 39 of the Rules of Court. The Court will therefore assess whether the applicant faces the risk of treatment contrary to Article 3 in the event of his extradition to Kyrgyzstan – the material date for the assessment of that risk being that of the Court’s consideration of the case – taking into account the assessment made by the domestic courts (see Gayratbek Saliyev v. Russia, no. 39093/13, § 60, 17 April 2014).
62. Turning to the general human rights climate in the requesting country, the Court makes the following observations. In a previous case concerning extradition to Kyrgyzstan it found that in 2012 the situation in the south of the country was characterised by torture and other ill‑treatment of ethnic Uzbeks by law-enforcement officers. Such incidences had increased in the aftermath of the events of June 2010 and remained widespread and rampant, being aggravated by the impunity of law‑enforcement officers. Moreover, the Court established that the issue needed to be seen in the context of the rise of ethno‑nationalism in the politics of Kyrgyzstan, particularly in the south, the growing interethnic tensions between Kyrgyz and Uzbeks, continued discriminatory practices faced by Uzbeks at institutional level and the under‑representation of Uzbeks in, amongst others, law-enforcement bodies and the judiciary (see Makhmudzhan Ergashev, cited above, § 72). As is clear from the reports by UN bodies and reputable NGOs, the situation in the southern part of Kyrgyzstan had not improved since 2012. In particular, various reports are consistent in their descriptions of biased attitudes based on ethnicity in investigations, prosecutions, condemnations and sanctions imposed on ethnic Uzbeks who have been charged and convicted in relation to the 2010 events in the Jalal-Abad Region. They also agree about the lack of full and effective investigations into the numerous allegations of torture and ill‑treatment imputable to Kyrgyz law-enforcement agencies, arbitrary detention and the excessive use of force against Uzbeks allegedly involved in the events of June 2010. Accordingly, the Court concludes that the current overall human rights situation in Kyrgyzstan remains highly problematic (see Gayratbek Saliyev, cited above, § 61; Kadirzhanov and Mamashev v. Russia, nos. 42351/13 and 47823/13, § 91, 17 July 2014; and Mamadaliyev, cited above, § 60).
63. The Court will now examine whether there are any individual circumstances substantiating the applicant’s fears of ill-treatment (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I). It reiterates in this respect that where an applicant alleges that he or she is a member of a group that is systematically exposed to the practice of ill-treatment, the protection of Article 3 comes into play when the applicant establishes – where necessary on the basis of information contained in recent reports by independent international human‑rights protection bodies or non-governmental organisations – that there are good reasons to believe in the existence of the practice in question and in his or her membership of the group concerned. In those circumstances, the Court will not then insist that the applicant demonstrate the existence of further special distinguishing features (see Saadi v. Italy [GC], no. 37201/06, § 132, ECHR 2008, and NA. v. the United Kingdom, no. 25904/07, § 116, 17 July 2008).
64. The Court observes that, unlike other Russian cases involving extradition to Kyrgyzstan previously examined by the Court, in the present case the domestic authorities considered the applicant’s arguments, supported by various UN sources and NGO’s reports, as regards the existence of a widespread practice of tortures and other ill-treatment of ethnic Uzbeks in Kyrgyzstan, particularly in the context of prosecution of the June 2010-related offences. They considered, however, that these circumstances could not in themselves be considered sufficient for refusing the applicant’s extradition to Kyrgyzstan. Relying on Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 and the legal position of the UN Committee against Torture, the Russian Supreme Court stressed that the refusal of an extradition would be possible not only where the existence of gross and mass violations of human rights would be established in a requesting State, but also where it would be established that an individual concerned would run a personal risk of torture if returned to his or her country. In making an assessment of the applicant’s personal risk of ill‑treatment in case of his return to Kyrgyzstan, the Supreme Court held that the latter did not belong to any political or other party, organisation or group in opposition to the present government of Kyrgyzstan, that while living in Kyrgyzstan he had not been subjected to any torture, inhuman or degrading treatment by the authorities, that he had arrived in Russia many months after the crimes of which he stood accused had been committed in June 2010, that his wife and daughter remained in the Kyrgyz Republic, and that no evidence had therefore been provided to show that he or his relatives were persecuted by the Kyrgyz authorities. The applicant’s argument as to his Uzbek ethnic origin which gave him reason to believe that he would be subjected to repressive criminal prosecution and unfair conviction was dismissed as unsubstantiated. The Court further notes that the domestic courts attached particular importance to the diplomatic assurances provided by the Kyrgyz authorities, which were sufficient, in their view, to eliminate the risk of the applicant’s being subjected to inhuman treatment in the event of his extradition (see paragraphs 17 and 20 above).
65. While the Court welcomes the approach adopted by the domestic courts in the present case, which is an important development in handling similar cases, it cannot nevertheless agree with their conclusion as to the absence of substantial grounds for believing that the applicant would face a real, immediate and foreseeable risk of ill-treatment if returned to Kyrgyzstan. The Court notes, in particular, that the applicant is an ethnic Uzbek charged with a number of serious offences allegedly committed in the course of the violent inter-ethnic clashes between Kyrgyz and Uzbeks in June 2010. Given the widespread use by the Kyrgyz authorities of torture and ill-treatment in order to obtain confessions from ethnic Uzbeks charged with involvement in the interethnic riots in the Jalal-Abad Region, which has been reported by both UN bodies and reputable NGOs, the Court is satisfied that the applicant belongs to a particularly vulnerable group, the members of which are routinely subjected to treatment proscribed by Article 3 of the Convention in the requesting country (see Gayratbek Saliyev, cited above, § 62, and Kadirzhanov and Mamashev, cited above, § 92).
66. As regards the diplomatic assurances provided by the Kyrgyz authorities, the Court reiterates that they are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether these assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148, and Othman (Abu Qatada), cited above, §§ 187-89).
67. The Court notes that, according to the assurances provided by the Kyrgyz authorities to the Russian Federation, the applicant would have the benefit of legal assistance, he would not be extradited to a third State, he would be prosecuted only for the offence for which he was being extradited, he would not be subjected to torture, inhuman or degrading treatment or punishment, he would be prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any ground, he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence, and Russian diplomats would be given access to him (see paragraph 17 above).
68. Even accepting that the assurances in question were not couched in general terms, the Court observes that Kyrgyzstan is not a Contracting State to the Convention, nor have its authorities demonstrated the existence of an effective system of legal protection against torture that could act as an equivalent to the system required of Contracting States. While those assurances appear to be formally binding on the local authorities, the Court has serious doubts, in view of the poor human-rights record in the south of the country, whether the local authorities there can be expected to abide by them in practice (see Makhmudzhan Ergashev, cited above, §§ 35-46). Furthermore, it has not been demonstrated before the Court that Kyrgyzstan’s commitment to guaranteeing access to the applicant by Russian diplomatic staff would result in effective protection against proscribed ill-treatment in practical terms, as it has not been shown that the aforementioned staff would be in possession of the expertise required for effective follow-up of the Kyrgyz authorities’ compliance with their undertakings. Nor was there any guarantee that they would be able to speak to the applicant without witnesses. In addition, their potential involvement was not supported by any practical mechanism setting up a procedure by which the applicant could lodge his complaints with them or facilitating their unfettered access to detention facilities (see Mamadaliyev, cited above, § 69). The fact that six non-Kyrgyz persons, only two of whom were ethnic Uzbeks, were visited in Kyrgyzstan by Russian diplomatic staff after their extradition cannot be considered to constitute a sufficient demonstration of the existence of a monitoring mechanism in the requesting country (see, by contrast, Othman (Abu Qatada), cited above, §§ 189-204).
69. In view of the above considerations, the Court cannot accept the Government’s assertion that the assurances provided by the Kyrgyz authorities are sufficient to eliminate the risk of his exposure to ill-treatment in the requesting country.
70. Considering the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the southern part of Kyrgyzstan in respect of members of the Uzbek community, to which the applicant belongs, the impunity of law‑enforcement officers and the absence of sufficient safeguards for the applicant in the requesting country, the Court finds it substantiated that the applicant would face a real risk of exposure to treatment proscribed by Article 3 if returned to Kyrgyzstan.
71. Accordingly, the Court finds that the applicant’s extradition to Kyrgyzstan would constitute a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
72. The applicant complained that his appeals against the detention orders of 22 April and 13 September 2013 had not been examined “speedily” and that there had been no effective procedure by which he could challenge his detention after 30 January 2014. He relied on Article 5 § 4 of the Convention, which reads:
“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. Admissibility
73. The Government claimed that the applicant’s complaint concerning the excessive length of the proceedings concerning the appeal against the extension order of 22 April 2013 had been lodged outside the six-month time-limit provided by Article 35 § 1 of the Convention.
74. The Court notes that the applicant introduced his complaints under Article 5 § 4 of the Convention on 4 March 2014. Bearing in mind the six‑month requirement laid down in Article 35 § 1, the Court considers that it is not competent to examine the complaint concerning the extension ordered on 22 April 2013 and upheld on 12 July 2013.
75. On the other hand, in so far as the applicant complained under Article 5 § 4 about the excessive length of the proceedings concerning the appeal against the extension order of 13 September 2013 and about his inability to obtain a review of his detention after 30 January 2014, the Court finds that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. Therefore, they must be declared admissible.
B. Merits
1. The parties’ submissions
(a) Speediness of review on appeal
76. The Government submitted that the applicant’s lawyer had lodged an appeal against the extension order of 13 September 2013 on 19 September 2013. Although the appeal was dispatched by post on 20 September 2013, it was not until 21 October 2013 that the Leninskiy District Court of Vladivostok received it, although there are no documents disclosing the reasons for this delay. On 23 October 2013 a copy of the appeal was forwarded to the applicant and the local prosecutor’s office, who were invited to submit their comments by 28 October 2013. On 31 October 2013 the Leninskiy District Court forwarded the case file to the Primorye Regional Court for examination. On 6 November 2013 the appeal hearing was scheduled and the parties were informed accordingly. The appeal was examined on 7 November 2013, that is to say seventeen days after its receipt. In view of the above circumstances, the length of the proceedings concerning the appeal against the extension order of 13 September 2013 cannot be regarded as breaching the requirement of “speediness” under Article 5 § 4 of the Convention.
77. The applicant argued that the Government had not provided any evidence that it had actually taken more than a month to deliver the appeal sent by the applicant’s representative, such delay being very unusual for postal delivery within the same city. The Post of Russia is in any event a State-owned entity and it is for the domestic authorities to facilitate its operation in a way that does not contribute to any violation of the rights of detainees. Furthermore, the Government did not adduce any reasonable justification for the subsequent seventeen-day delay.
(b) Alleged inability to obtain a review of detention
78. The Government argued that the applicant did in fact have the opportunity after 30 January 2014 to initiate a review of the lawfulness of his detention and to apply for release, as is required by Article 5 § 4 of the Convention. They submitted, in particular, that the domestic legal system provided for an application for the release of individuals detained pending extradition under Articles 119-122 of the CCrP. The Government claimed, furthermore, that the applicant could also have asked a prosecutor to reconsider the imposition of custodial detention under Article 110 of the CCrP after the interim measures had been applied by the Court. They illustrated the application of this legal provision by reference to the case of Kadirzhanov and Mamashev (cited above, §§ 34, 35, 111, 113 and 131), where Mr Kadirzhanov – who had been held in custody pending extradition and in respect of whom the Court had applied interim measures pursuant to Rule 39 of the Rules of Court – was released on the basis of a prosecutor’s decision at the request of his lawyer. The Government further stated that, although the interim measure had been applied by the Court on 28 January 2014, the Supreme Court was not competent to take a decision on the applicant’s release from custody during the court hearing of 30 January 2014 because the scope of that hearing had been limited to reviewing the decision of the Primorye Regional Court of 1 November 2013 and the latest extension order had been delivered by a different court.
79. The applicant claimed that the interval between the instances of “automatic periodic review” of the lawfulness of his detention pending extradition had been excessively long, as he had not been able to ask the domestic courts to reconsider the issue of custodial detention after 30 January 2014. Moreover, he disagreed with the Government’s assertion that it had been open to him to initiate proceedings for release under Article 110 of the CCrP, as in his view it had been incumbent on the State agencies to initiate such proceedings of their own motion. He further claimed that the application procedure under Articles 119-122 of the CCrP could not be regarded as an effective remedy in his case as it was applicable only to parties to criminal proceedings instituted in Russia. Moreover, any prosecutor’s decision taken on the basis of that procedure could only be challenged in court under Article 125 of the CCrP, which does not empower a court to order a detainee’s release, even if it finds the impugned detention order unlawful or unjustified (see Zokhidov v. Russia, no. 67286/10, § 188, 5 February 2013).
2. The Court’s assessment
(a) Speediness of review on appeal
(i) General principles
80. The Court reiterates that Article 5 § 4 of the Convention enshrines the right to a speedy judicial decision concerning the lawfulness of detention, and to an order terminating it if it proves to be unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000‑III). Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for an appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review in such appeal proceedings. Accordingly, in order to determine whether or not there has been compliance with the requirement that a decision be given “speedily”, it is necessary to effect an overall assessment where the proceedings have been conducted at more than one level of jurisdiction (see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009). At the same time, the standard of “speediness” is less stringent when it comes to proceedings before an appellate court (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007).
81. Although the number of days taken by the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been delivered with the requisite speed (see Merie v. the Netherlands (dec.), no. 664/05, 20 September 2007). What is taken into account is the diligence shown by the authorities, any delay attributable to the applicant, and any delay-inducing factors for which the State cannot be held responsible (see Jablonski v. Poland, no. 33492/96, §§ 91-94, 21 December 2000). The question whether the right to a speedy decision has been respected must thus be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000-XII).
(ii) Application of those principles in the present case
82. The Court observes that it is undisputed between the parties that the appeal against the detention order of 13 September 2013 was lodged by the applicant’s lawyer on 19 September 2013 and dispatched by post on 20 September 2013. It is further undisputed that the Primorye Regional Court examined the above appeal on 7 November 2013, forty-eight days after it had been lodged.
83. The Government have not argued, and the Court does not find any indication to suggest, that any delay in the examination of the applicant’s appeal against the detention order of 13 September 2013 can be attributable to his conduct. In the absence of any explanation from the Government capable of justifying such delay, the Court considers that the amount of time it took the Primorye Regional Court to examine the applicant’s appeal against the first-instance detention order in the present case can only be characterised as inordinate. This is not reconcilable with the requirement of “speediness”, as set out in Article 5 § 4 of the Convention (see Khamrakulov, cited above, §§ 79-81).
84. The Court thus finds that there has been a violation of Article 5 § 4 of the Convention.
(b) Alleged inability to obtain a review of detention
(i) General principles
85. The Court reiterates that forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not out of the question for a system based on an automatic periodic review of the lawfulness of detention by a court to satisfy the requirements of Article 5 § 4 (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237‑A). However, long intervals in the context of such an automatic periodic review may give rise to a violation of Article 5 § 4 (see, among other authorities, Herczegfalvy v. Austria, 24 September 1992, § 77, Series A no. 244). By virtue of Article 5 § 4, a detainee is entitled to ask a “court” having jurisdiction to decide “speedily” whether or not his or her deprivation of liberty has become “unlawful” in the light of new factors which have emerged subsequent to the initial decision to order his or her remand in custody (see Ismoilov and Others, no. 2947/06, § 146, 24 April 2008). The requirements of Article 5 § 4 as to what may be considered a “reasonable” interval in the context of periodic judicial review also varies from one domain to another, depending on the type of deprivation of liberty in question (see, for a summary of the Court’s case-law in the context of detention for the purposes set out in sub-paragraphs (a), (c), (e) and (f) of Article 5 § 1, Abdulkhakov, cited above, §§ 212-14).
86. The Court observes that it is not its task to attempt to rule as to the maximum period of time between reviews which should automatically apply to a certain category of detainees. The question of whether the periods comply with the requirement must be determined in the light of the circumstances of each case (see Sanchez-Reisse v. Switzerland, 21 October 1986, § 55, Series A no. 107, and Oldham v. the United Kingdom, no. 36273/97, § 31, ECHR 2000-X). The Court must, in particular, examine whether any new relevant factors that have arisen in the interval between periodic reviews have been assessed, without unreasonable delay, by a court having jurisdiction to decide whether or not the detention has become “unlawful” in the light of these new factors (see Abdulkhakov, cited above, § 215).
(ii) Application of those principles in the present case
87. The Court notes that, in the context of reviewing the applicant’s detention, the Government referred to the possibility of the applicant’s lodging an application under Articles 119-122 of the CCrP (see paragraphs 37-40 above) and the possibility of his asking a prosecutor to release him under Article 110 of the CCrP (see paragraph 34 above) after the interim measures had been applied by the Court. The Court has previously addressed similar arguments and dismissed them, having found that the Government have not provided any explanation as to the manner in which applications under Articles 119-122 of the CCrP could have amounted to a request for release or periodic judicial review at reasonable intervals of the lawfulness of the applicant’s detention pending extradition, and that Article 110 of the CCrP did not provide for a clear mechanism of applying for cancellation or varying the preventive measure in the context of detention pending extradition (see Kadirzhanov and Mamashev, cited above, §§ 131-32).
88. In any event, the lack of a possibility for those detained pending extradition to initiate proceedings for the examination of the lawfulness of their detention is not in itself contrary to Article 5 § 4 of the Convention, provided that periodic judicial reviews of the lawfulness of detention are held at “reasonable intervals” (see Abdulkhakov, cited above, § 210, with further references).
89. The Court observes that in a number of previous cases against Russia it has accepted that proceedings for the extension of detention pending extradition before a first-instance court amounted to a form of periodic review of a judicial nature (see Kadirzhanov and Mamashev, cited above, § 134; with further references). The Court will therefore have to ascertain whether in the present case such periodic judicial review of the lawfulness of the applicant’s detention was held at a reasonable interval.
90. The Court notes that on 13 September 2013 the Leninskiy District Court of Vladivostok extended the applicant’s detention for six months on the grounds that the extradition proceedings were still pending. During the period of detention under consideration, an important development occurred in the applicant’s extradition case. Namely, on 28 January 2014 the Court applied an interim measure under Rule 39 of the Rules of Court (see paragraph 4 above) with the result that, although on 30 January 2014 the extradition order was upheld at final instance and the domestic extradition proceedings were thereby terminated, any preparation for the enforcement of the extradition order had to be suspended for an indefinite period of time. The Court considers that this constituted a new relevant factor that might have affected the lawfulness of, and the justification for, the applicant’s continued detention. The applicant was therefore entitled under Article 5 § 4 to proceedings to have that new relevant factor assessed by a court without unreasonable delay.
91. The Court further notes that slightly over a month after the above new relevant factor emerged, on 7 March 2014 the deputy Prosecutor of the Primorye Region ordered the applicant’s release in the light of the interim measures applied by the Court under Rule 39 of the Rules of Court (see paragraph 24 above). The Court considers that a delay slightly exceeding one month in assessing a new relevant factor capable of affecting the lawfulness of detention in the applicant’s case was reasonable (compare to Abdulkhakov, cited above, § 216, where in similar circumstances it took the domestic authorities three months to review the applicant’s detention and order his release, and Kadirzhanov and Mamashev, cited above, §§ 137‑38, where such period also amounted to almost three months).
92. The Court finds, therefore, that in the applicant’s case the periodic judicial review of his detention was held at a reasonable interval and provided swift assessment of the new relevant factor capable of affecting the lawfulness of his detention.
93. There has therefore been no violation of Article 5 § 4 of the Convention on this account.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
94. 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.”
A. Damage
95. The applicant did not claim any damages. Accordingly, there is no call to make an award under this head.
B. Costs and expenses
96. The applicant claimed 2,800 euros (EUR) for his legal representation before the Court (28 hours spent on the case by the lawyer at an hourly rate of EUR 100 per hour).
97. The Government submitted that, although not manifestly excessive in the light of the Court’s case-law, the requested sum was not based on a contract for legal assistance or any other document setting the hourly rate of the applicant’s representative and should therefore be rejected.
98. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,800 for the proceedings before the Court.
C. Default interest
99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
IV. RULE 39 OF THE RULES OF COURT
100. The Court reiterates 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 ask for the case to be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral 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.
101. It considers that the instruction given to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares admissible
(a) the complaint under Article 3 that the applicant would face a risk of ill‑treatment if the decision to extradite him to Kyrgyzstan were to be enforced;
(b) the complaint under Article 5 § 4 concerning the excessive length of the proceedings concerning the appeal against the extension order of 13 September 2013;
(c) the complaint under Article 5 § 4 concerning the applicant’s inability to obtain a review of his detention pending extradition after 30 January 2014;
and the remainder of the application inadmissible;
2. Holds that if the decision to extradite the applicant to Kyrgyzstan were to be enforced, there would be a violation of Article 3 of the Convention;
3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the length of the proceedings in the applicant’s appeal against the detention order of 13 September 2013;
4. Holds that there has been no violation of Article 5 § 4 of the Convention on account of the applicant’s inability to obtain a review of his detention pending extradition after 30 January 2014;
5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,800 (two thousand eight hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, and to be paid into the representative’s bank account;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Decides to continue its instruction 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 15 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenAndrás Sajó
RegistrarPresident
Full & Egal Universal Law Academy