FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21022/08 Application no. 51946/08
by Anzor Chadidovich CHENTIEV by Ali Nurdinovich IBRAGIMOV
against Slovakia against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 14 September 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above applications lodged on 10 April 2008 and 30 October 2008 respectively,
Having regard to the interim measures indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the third-party comments submitted by the Government of the Russian Federation and the Slovak Government's reply thereto,
Having deliberated, decides as follows:
THE FACTS
The applicants are two Russian nationals of Chechen ethnic origin. Mr Anzor Chadidovich Chentiev (the first applicant), was born in 1983 and is detained in Leopoldov prison. Mr Ali Nurdinovich Ibragimov (the second applicant), was born in 1977 and is detained in Košice. They were represented before the Court by Mr M. Škamla, a lawyer practising in Žilina. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the cases, as submitted by the parties, may be summarised as follows.
1. The case of the first applicant
The first applicant arrived illegally in Slovakia from Ukraine on 18 January 2006. He was arrested. He disclosed his identity to Slovakian authorities in April 2006, in the context of proceedings concerning his request for asylum. That request was dismissed by a decision which became final on 22 August 2007.
A second request for asylum lodged by the first applicant was also dismissed. The final decision on the issue was given by the Bratislava Regional Court on 8 April 2008.
In the meantime, on 20 April 2006 and 8 September 2006, the Office of the Prosecutor General of the Russian Federation applied for the first applicant's extradition. The request was based on the fact that he had been accused of several offences, in particular banditry with aggravating circumstances and attempt on the life of officials of a law-enforcement agency.
The applicant was suspected of taking part, as a member of an organised group, in the killing of two agents of the Ministry of the Interior in Grozny in June 2001. In 2005 the applicant with the other members of the group had allegedly forced a government official and a different person to give them a firearm, money, gold items and mobile phones.
The letters indicated that the applicant would not be tried by the Special Court, would enjoy the guarantees of a fair trial including the assistance of counsel, and would not be subjected to treatment contrary to Article 3 of the Convention. As to the risk of the death penalty, the letter of 8 September 2006 indicated that there was a moratorium on that penalty in Russia, that the death penalty would not be imposed on the first applicant and that capital punishment was not provided for the offences imputed to him.
On 1 July 2008 the Trnava Regional Court concluded that the first applicant's extradition to Russia for the purpose of his criminal prosecution there was inadmissible. The decision stated that there was a risk that the applicant would be ill-treated, that he ran the risk of receiving the death penalty and that he would not be guaranteed a fair trial if extradited. Reference was made to Amnesty International reports of 2006 and 2007.
The public prosecutor appealed.
On 4 September 2008 the Supreme Court overturned that decision and held that the applicant's extradition was admissible. After examining the applicant's situation in detail, it found no relevant factor preventing his extradition.
In particular, the Supreme Court took note of the guarantees given by the Prosecutor General of the Russian Federation. As regards the risk of imposition of capital punishment, it analysed the law and practice in Russia and concluded that there existed no real risk that the death penalty would be imposed for the offences imputed to him.
As to the risk that the applicant would be ill-treated, the Supreme Court, with reference to the Court's practice (in particular Saadi v. Italy [GC], no. 37201/06, ECHR 2008‑...) and various international materials on the conflict in Chechnya, noted that its decision on the extradition of a particular person for the purpose of his criminal prosecution could not be exclusively based on the political situation existing in a part of the Russian Federation and the fact that the State's actions in that respect had been subjected to international criticism. The decision further stated that Russia was a member State of the Council of Europe and a Contracting Party to the Convention. All persons within its jurisdiction were therefore entitled to seek redress before the Court as regards alleged breach of their Convention rights by the Russian authorities.
As to the witness Mukayev (see point 3 below), whose statements had given rise to the applicant's prosecution, his alleged ill-treatment was not proof that the applicant would be subjected to treatment incompatible with Article 3 of the Convention.
The Supreme Court also held that a possible failure by Russian authorities to comply with the guarantees issued by them would undermine the trust of its partners and affect further processing of similar requests.
A refusal to extradite the first applicant would affect the rights of other persons, in particular the relatives of the officers who had been killed, who were entitled to have an effective investigation carried out.
The applicant lodged a constitutional complaint. The Fourth Chamber of the Constitutional Court, to which the case fell to be examined, had a different opinion on the issue from that which the Third Chamber had expressed in its decision of 17 December 2008 in the case of the second applicant (see point 2 below). It therefore submitted the matter to the plenary meeting of the Constitutional Court with a view to harmonising the positions.
In decision PLz ÚS 2/09 of 25 February 2009 the Constitutional Court (plenary meeting) did not accept the proposal by its Fourth Chamber to depart from the conclusion which the Third Chamber had reached on 17 December 2008.
On 26 February 2009 the Constitutional Court (Fourth Chamber) decided that the Supreme Court had violated the first applicant's right under Article 3 by allowing his extradition to Russia. The case was returned to the Supreme Court. In its decision the Constitutional Court (Fourth Chamber) stated that it did not, in principle, object to the way in which the Supreme Court had proceeded. However, there was a need for the case to be examined in the light of the most recent case-law of the European Court of Human Rights and all available information. The trustworthiness of the guarantees offered by the Russian Federation had also to be addressed in more detail. Reference was made to the fact that the Court had issued an interim measure in the case.
In an opinion of 4 March 2009 the Constitutional Court (plenary meeting) noted that in the above decision the Fourth Chamber had disregarded decision PLz ÚS 2/09 of 25 February 2009.
On 13 May 2009 the Supreme Court again found that the applicant's extradition to the Russian Federation for the purpose of his criminal prosecution there was admissible.
In its decision the Supreme Court analysed the first applicant's case in the light of the Court's reasoning in the cases of Shamayev and Others v. Georgia and Russia (no. 36378/02, ECHR 2005‑III), and Gasayev v. Spain (dec.), no. 48514/06, 17 February 2009). It also had regard to other cases, such as Vilvarajah and Others v. the United Kingdom (30 October 1991, Series A no. 215); Čonka v. Belgium (no. 51564/99, ECHR 2002‑I); Ismoilov and Others v. Russia (no. 2947/06, 24 April 2008); and Estamirov and Others v. Russia (no. 60272/00, 12 October 2006).
The Supreme Court held that various data available internationally containing general information about the use of violence by Russian armed forces against the civilian population of Chechnya did not prove the existence of a specific risk that the first applicant would be ill-treated if extradited. The applicant himself had not provided any specific information about himself permitting a different conclusion.
With reference to the reasons set out in its decision of 4 September 2008 the Supreme Court again concluded that the guarantees offered by the Russian authorities were sufficient and that it had not been established that the applicant ran a real risk of treatment contrary to Article 3. The Supreme Court also invoked the Constitutional Court's (Third Chamber) decision of 17 December 2008 in the case of the second applicant with the same factual background, and decision PLz ÚS 2/09 in which the Constitutional Court at its plenary meeting had refused to depart from that decision.
On 8 June 2009 the first applicant lodged a complaint with the Constitutional Court. He relied on Articles 3 and 6 of the Convention, on an UNHCR interim recommendation concerning international protection of persons of Chechen origin and on a Human Rights Watch report issued on 4 June 2009 (see point 6 below). He argued that the Supreme Court had disregarded the Constitutional Court's order that his case should be examined in the light of the Court's practice, that he would be subjected to inhuman and degrading treatment and that he would not enjoy the guarantees of a fair trial in case of his extradition. As to the last point, he asserted that the principal witness in the criminal proceedings had given a statement against him under torture.
On 17 August 2009 the Constitutional Court (First Chamber) rejected the complaint as manifestly ill-founded. It found that the Supreme Court had duly considered the relevant facts and law, including the practice of the Court. The Constitutional Court accepted the Supreme Court's conclusion according to which it had not been established that the guarantees offered by the Russian authorities were not trustworthy and that the applicant ran a real risk of treatment contrary to Article 3 of the Convention in case of his extradition. Finally, the Constitutional Court held that it lacked the power to address the fairness of criminal proceedings which were pending before the Russian authorities.
In a letter of 12 October 2009 addressed to the Slovakian authorities the Deputy Prosecutor General of the Russian Federation confirmed the guarantees previously given with regard to the first applicant, including respect for his physical and psychological integrity. The letter indicated that, in case of his conviction and imposition of a prison term, the second applicant would serve his sentence in a federal prison, where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the applicant's detention and Slovakian diplomatic representatives would be able to visit the first applicant and speak to him without third parties present. The applicant would be provided with sufficient medical care. It was guaranteed that capital punishment would not be applied in respect of the first applicant. Finally, the Office of the Prosecutor General of the Russian Federation guaranteed that the first applicant would not be prosecuted for his political views or because of his race, religion or nationality.
2. The case of the second applicant
The second applicant was arrested by Slovakian border police on 18 January 2006. He had no valid travel document and gave his name as Alej Dzhamaldeyev.
On 15 February 2006 the second applicant applied for asylum in Slovakia. His request was ultimately dismissed. The final decision was given by the Supreme Court on 26 March 2008. The decision became final on 12 May 2008.
In the meantime, in April 2006, the identity of the second applicant was established.
On 20 April 2006 the Office of the Prosecutor General of the Russian Federation applied for the second applicant's extradition. The request was based on the fact that he had been accused of several offences, namely banditry with aggravating circumstances and attempt on the life of officials of a law-enforcement agency. The applicant was suspected of having participated, as a member of an organised group, in the killing of two agents of the Ministry of the Interior in Grozny in June 2001.
The above letter and another letter from the Office of the Russian Federation's Prosecutor General dated 19 September 2006 indicated that the applicant would not be tried by the Special Court, would enjoy the guarantees of a fair trial including the assistance of counsel and that he would not be subjected to treatment contrary to Article 3 of the Convention. As to the risk of the death penalty, the letters indicated that there was a moratorium on the death penalty in Russia, that the applicant would not face the death penalty if extradited and that, should the applicant be sentenced to death, the sentence would not be carried out. Reference was made to the fact that the Russian Federation had signed Protocol No. 6 to the Convention and that under Articles 18 and 26 of the Vienna Convention on the Law of Treaties of 1969 it had an obligation not to use the death penalty.
The second applicant was placed in preliminary detention with effect from 28 April 2006. On 23 May 2006 the Košice Regional Court remanded him in custody pending extradition. The Supreme Court dismissed the applicant's complaint against that decision on 21 June 2006.
On 3 September 2008 the Košice Regional Court found inadmissible the applicant's extradition to Russia.
On 29 October 2008 the Supreme Court overturned that decision and held that the second applicant's extradition was admissible. The Supreme Court, with reference to documents available, established that the applicant had been involved, as a member of an organised group, in the killing of two Russian servicemen in Grozny in 2001. That killing had taken place after the military conflict had ended and it was not therefore an exclusively political or military action within the meaning of the relevant provision of the Slovakian Code of Criminal Procedure, which prevented the extradition of foreigners in such cases. The Supreme Court further noted that Russia was a member State of the Council of Europe and that respect for human rights was permanently monitored.
Finally, the Supreme Court considered sufficient the guarantees offered by the Prosecutor General of the Russian Federation, which stated that the applicant would not face the death penalty and that such punishment was in any event not carried out in Russia, that he would not be tried by a Special Court as well as the undertaking that Articles 3 and 6 of the Convention would be respected in his case.
On 3 December 2008 the second applicant lodged a complaint with the Constitutional Court. He relied on Article 3 of the Convention and Article 1 of Protocol No. 6. The applicant referred to various reports on the situation in prisons in the Russian Federation. In particular, he invoked reports on treatment to which persons of Chechen origin suspected of fighting against Russian authorities were subjected. He also invoked the fact that the death penalty had not been formally abolished in Russia.
On 17 December 2008 the Constitutional Court (Third Chamber) dismissed the complaint as being manifestly ill-founded. It relied on the reasoning of the Supreme Court which it considered relevant and sufficient from the point of view of protecting the applicant's rights under the Convention and the Constitution.
In a letter of 12 October 2009 addressed to the Slovakian authorities the Deputy Prosecutor General of the Russian Federation confirmed the guarantees previously given with regard to the second applicant, including respect for his physical and psychological integrity. The letter indicated that, if he was convicted and given a prison sentence, the second applicant would serve his sentence in a federal prison, where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the second applicant's detention and Slovakian diplomatic representatives would be able to visit the second applicant and speak to him without the presence of third persons. The second applicant would be provided with sufficient medical care. It was guaranteed that capital punishment would not be applied in respect of the second applicant. Finally, the Office of the Prosecutor General of the Russian Federation guaranteed that the second applicant would not be prosecuted for his political views or because of his race, religion or nationality.
3. The case of A.M. Mukayev
The applicants maintained that criminal proceedings against them had been instituted on the basis of statements of A.M. Mukayev, which had been extracted under torture.
Mr Mukayev, while being questioned in Chechnya on 26 February 2006, had admitted involvement in a number of offences which he had committed as a member of an organised group. Among those offences reference was made to the killing of two members of the special units of the Ministry of the Interior. Those persons had been shot after members of the group had stopped their car on a road. Mr Mukayev indicated the applicants as having been among the accomplices.
Subsequently Mr Mukayev, with the assistance of an advocate, lodged a criminal complaint, arguing that his defence rights had been infringed after his extradition from Kazakhstan and that he had been subjected to treatment incompatible with Article 3 while he was being questioned and detained in Chechnya. The complaint was dismissed by the prosecuting authorities. On 3 October 2007 the Zavodskyi District Court of Grozny quashed the above decision to dismiss Mr Mukayev's criminal complaint. The court noted that the prosecuting authorities had not examined all the relevant facts and that the origin of several documented injuries sustained by Mr Mukayev had not been established. The court ordered the prosecutor to review the decision to dismiss Mr Mukayev's criminal complaint.
In 2008 Mr Mukayev lodged an application with the Court. The proceedings are pending (application no. 22495/08).
4. The case of A. Shakhayev
In their observations of 12 March 2010 the applicants referred to the case of Mr Adlan Shakhayev who had unsuccessfully applied for asylum in Slovakia in 2006. The applicants submitted that, after his expulsion, Mr Shakhayev had spent a week in a prison in Moscow and that he had been tortured and ill-treated. Subsequently he had been transferred to the ORB-2 detention facility in Grozny, where he had been repeatedly tortured. With the help of his relatives and the payment of a ransom he received a conditional prison term only and was released.
The applicants indicated that they would submit a written statement by Mr Shakhayev, together with the relevant medical reports.
No such documents have been submitted.
5. The case of Gasayev v. Spain (application no. 48514/06)
In the above case Rule 39 was applied in the Third Section of the Court to suspend the Chechen applicant's extradition to Russia, where he faced criminal charges. That measure was lifted following the receipt of assurances by the Russian Government that the applicant would not be condemned to the death penalty or to an irreducible life sentence, or detained in conditions which were contrary to Article 3 of the Convention. There was also a guarantee that monitoring of compliance with that guarantee was to be ensured through the Spanish diplomatic representation in Russia.
The Court (Third Section) declared the application inadmissible on 17 February 2009.
According to a press release by Human Rights Watch of 1 September 2009, Mr Gasayev, accused of taking part in an attack on government buildings in Ingushetia in June 2004, had been released by the Russian authorities without charge on 28 August 2009, after ten months in pre-trial detention. The press release further stated that “according to Gasayev, he was tortured for three days and then released without charge”.
According to third-party comments by the Government of the Russian Federation, the criminal proceedings against Mr Gasayev had ended following an amnesty. Such action was permissible under the Russian law subject to admission of guilt by the accused person.
6. International materials
Before the Constitutional Court the applicants relied, inter alia, on a press release by Human Rights Watch of 4 June 2009 entitled “Russia: Prosecute Rights Violations in North Caucasus”[1]. In it reference is made to the fact that the Court adopted more than 100 judgments holding Russia responsible for serious violations of human rights in Chechnya. Human Rights Watch, the Memorial Human Rights Centre and the Russian Justice Initiative called on the Russian government to ratify Protocol No. 14, to re-open investigations in those cases where the Court had concluded that prior investigations were inadequate, to undertake a thorough review and revision of domestic legislation and regulations regarding the use of force by military or security forces to ensure their compliance with human rights law and to carry out an in-depth inquiry into the conduct of investigations of abuses committed by military servicemen, police, and intelligence officials and other forces in Chechnya.
COMPLAINTS
The applicants complained that their extradition to the Russian Federation would amount to a breach of their rights under Articles 3 and 6 of the Convention and under Article 1 of Protocol No. 6.
THE LAW
1. In view of their similar factual background and the points of law in issue the Court considers it appropriate to join the applications.
2. The applicants complained that they would be subjected to torture or to inhuman and degrading treatment and that they ran the risk of capital punishment if extradited to Russia. They relied on Article 3 of the Convention and Article 1 of Protocol No. 6.
The Court considers it appropriate to examine these complaints under Articles 2 and 3 of the Convention, which read as follows:
Article 2
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The arguments of the parties
(a) The Government of the Slovak Republic
The Slovak Government maintained, with reference to the reasons set out in the domestic courts' decisions, mentioned above, approving the applicants' expulsion and the Court's reasoning in Shamayev and Others v. Georgia and Russia (judgment cited above), that the guarantees offered by the Russian authorities reliably eliminated the risk of the applicants' being subjected to treatment incompatible with their rights under Articles 2 and 3 of the Convention. The applicants had failed to give any specific reasons justifying their fear of a breach of their above rights in case of their extradition.
Furthermore, similarly as in the case of Gasayev v. Spain (application cited above), the Russian authorities had offered the opportunity for Slovakian diplomatic representatives to meet the applicants at the place of their deprivation of liberty without third parties present. The Russian Federation had undertaken, as a Contracting Party to the Convention, to respect the principles and rights incorporated in it.
(b) The applicants
The applicants argued that the offences of which they were accused could be punished by the death penalty under Article 317 of the Russian Criminal Code. The guarantees offered by the Russian authorities in their cases did not exclude the imposition of the death penalty on them; they merely indicated that such a sentence, if imposed, would not be carried out. The Russian Federation had not ratified Protocol No. 6 to the Convention and the moratorium on the death penalty did not sufficiently protect the applicants from receiving that penalty. Furthermore, no assurance had been given that they would not be punished with life imprisonment without the possibility of parole.
The applicants did not consider the other guarantees of the Russian Federation sufficient. They referred, in particular, to reports by several non-governmental organisations, by the Bureau of Democracy, Human Rights and Labour of the US State Department issued in 2009 and several press articles revealing human rights abuses in Chechnya or with regard to persons of Chechen origin.
As to their particular situation, the applicants underlined that the accusation against them was based on the single testimony of Mr Mukayev, which had been extracted under torture and in disregard of the latter's defence rights. Furthermore, Mr A. Shakhayev, who had been in a similar position, had been subjected to torture and ill-treatment after his extradition to Russia in 2006.
The applicants cast doubt on the offer of the opportunity for Slovakian diplomatic agents to visit them during their deprivation of liberty in Russia as being too generally worded, and also indicating that it did not imply that Slovakian authorities were obliged and would actually make use of it.
(c) The Government of the Russian Federation
In their third-party comments of 25 June 2010 the Russian Government, with reference to the case-law of the Court, disagreed with the applicants' arguments according to which the guarantees offered were neither sufficient nor reliable. They maintained that the applicants had not shown that a flagrant breach of their right to a fair trial would occur or that there were substantial grounds for believing that they would be subjected to torture or ill-treatment in case of their extradition. They also referred to the case of Mr Gasayev who, following his extradition from Spain, had been visited by representatives of the Embassy of Spain and the European Committee for the Prevention of Torture. No concerns had been expressed as regards the conditions of Mr Gasayev's detention or his treatment in prison.
The third-party intervener further argued that the next of kin of the persons who were the victims of the crimes imputed to the applicants had been granted victim status and had lodged claims for compensation in the context of the criminal proceedings. The protection of rights and interests of those persons required that a thorough investigation be carried out into the offences in issue.
As to the alleged risk of capital punishment, the Constitutional Court had ruled, on 19 November 2009, that the death penalty should not be applied on the territory of the Russian Federation. Furthermore, Article 59 § 2(1) of the Criminal Code excluded capital punishment in respect of persons extradited from a foreign state where the legislation of such state did not provide for a death penalty for the offence in issue or where the non-application of death penalty was a preliminary condition for such person's extradition.
In conclusion, the Russian Government confirmed all the guarantees previously given. They underlined, in particular, that the applicants, in case of their extradition, would (i) benefit from the guarantees of a fair trial including the assistance of a legal counsel and, if necessary, interpreters, possible trial by a jury, the possibility of lodging an appeal and of attendance by representatives of the Embassy of Slovakia; (ii) not be sentenced to a death penalty; (iii) not be subjected to treatment contrary to Article 3 of the Convention and (iv) have the possibility of lodging an application with the Court.
2. The Court's assessment
(a) The general principles
Protocol No. 13, which abolishes the death penalty in all circumstances, was opened for signature on 3 May 2002 and entered into force on 1 July 2003. At the date of adoption of the present decision, Protocol No. 13 has been ratified by 42 member States and signed but not ratified by a further three (Armenia, Latvia and Poland). Azerbaijan and Russia are alone in not having signed the Protocol.
In Al-Saadoon and Mufdhi v. the United Kingdom (no. 61498/08, judgment of 2 March 2010; §§ 116 and 119-120; ECHR 2010‑...) the Court took note of an evolution towards the complete de facto and de jure abolition of the death penalty within the Member States of the Council of Europe. When addressing the effect of signature and ratification of Protocol No. 13 on the interpretation of Articles 2 and 3 of the Convention it held, in particular:
“It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the Member States have now signed Protocol No. 13 and all but three of the States which have signed have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty.”
The Court reiterates that an alien's expulsion or extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country. In such type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim's conduct, the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances. The existence of the 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 expulsion or extradition. According to the Court's settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (for recapitulation of the relevant principles see, for example, Saadi v. Italy [GC], no. 37201/06, §§ 125-127 and 130-136, ECHR 2008‑..., with further references).
(b) Application of the above principles to the present case
In the cases of the present applicants both the Supreme Court and the Constitutional Court examined whether they risked being subjected to capital punishment or treatment contrary to Article 3 of the Convention in case of their extradition to the Russian Federation.
In their respective decisions approving the applicants' extradition those courts took note of the guarantees given by the Russian authorities. The Supreme Court analysed the law and practice in Russia and concluded that there existed no real risk that the death penalty would be imposed for the offences imputed to the first applicant. As regards the second applicant, the Supreme Court considered sufficient the guarantees offered by the Office of the Prosecutor General of the Russian Federation, according to which the second applicant would not face the death penalty and that such punishment was in any event not carried out in Russia.
In two letters of 12 October 2009 addressed to Slovakian authorities the Office of the Prosecutor General of the Russian Federation confirmed the guarantees previously given. The letters explicitly state that it has been guaranteed that capital punishment would not be applied in respect of the applicants.
In assessing the credibility which the Slovakian authorities could have attributed to those assurances, the Court considers it important that they were issued under the authority of the Prosecutor General, who, within the Russian system, supervises the activities of all prosecutors in the Russian Federation, including the argumentation of the case for the prosecution before the courts (see also, mutatis mutandis, Shamayev and Others v. Georgia and Russia, cited above, § 344).
The Court finds nothing in the materials before it which could reasonably have given the Slovakian authorities grounds to doubt the credibility of the assurance that capital punishment would not be applied in respect of the applicants. In addition, that assurance was later expressly confirmed in the third-party comments submitted by the Russian Government.
The Court further notes that the Slovakian authorities, and in particular the Supreme Court, thoroughly examined whether the applicants risked ill-treatment if extradited to Russia. It held that a decision on the extradition of a particular person for the purpose of his or her criminal prosecution could not be exclusively based on the political situation existing in a part of the Russian Federation and the fact that the State's actions in that respect had been subjected to international criticism. Various internationally available data on the use of violence by Russian armed forces against the civilian population of Chechnya did not prove the existence of a specific risk that the applicants would be ill-treated if extradited. Furthermore, the Supreme Court held that there existed no specific information about the applicants' particular cases permitting a different conclusion. As to the witness Mukayev, whose statements had given rise to the applicants' prosecution, his alleged ill-treatment did not constitute proof that the present applicants would be subjected to treatment incompatible with Article 3 of the Convention.
The Supreme Court's decision further stated that Russia was a member State of the Council of Europe and a Contracting Party to the Convention. All persons within its jurisdiction were therefore entitled to seek redress before the Court as regards any alleged breach of their Convention rights by the Russian authorities. A possible failure by Russian authorities to comply with the guarantees issued by them would undermine the trust of its partners and affect further processing of similar requests. Finally, the Supreme Court considered it relevant that a refusal to extradite the applicants would affect the rights of other persons, in particular the relatives of the officers who had been killed, who were entitled to have an effective investigation carried out.
The Court does not find arbitrary or otherwise unacceptable the conclusion that the documents and facts to which the applicants referred did not establish that extradition would have imposed a personal threat on them. In proceedings before the Court the applicants have not submitted any document supporting their allegation that Mr Shakhayev was ill-treated following his extradition to Russia, nor does it appear from the documents submitted that such evidence was produced in the proceedings before Slovakian courts.
The Court reiterates that a mere possibility of ill-treatment in circumstances similar to the cases of the present applicants is not in itself sufficient to give rise to a breach of Article 3 (see also Shamayev and Others v. Georgia and Russia, cited above, § 352, with further references).
It also finds relevant the argument that the assurances protecting the applicants from treatment contrary to Article 3 if extradited were given by authorities of a member State of the Council of Europe and a Contracting Party to the Convention, and that a possible failure to respect such assurances would seriously undermine that State's credibility.
The Court has further noted that in additional letters of 12 October 2009 addressed to the Slovakian authorities the Deputy Prosecutor General of the Russian Federation confirmed the guarantees previously given in respect of the applicants including respect for their physical and psychological integrity. The letters indicate that, if convicted and sentenced to a prison term, the applicants would serve their sentence in a federal prison where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the second applicant's detention and Slovakian diplomatic representatives would be able to visit the second applicant and speak to him without third persons present. The applicants would be provided with sufficient medical care.
In the case of Gasayev v. Spain (decision cited above), the Court considered relevant a similar assurance allowing for monitoring, through diplomatic representation of the extraditing State, of the undertaking by the Russian authorities that Article 3 of the Convention would be respected following the applicant's extradition.
It is true that, unlike in Gasayev, diplomatic monitoring of compliance with the assurances given by the Russian authorities was not requested by the domestic courts. It is therefore admittedly within the discretionary power of Slovakian authorities to avail themselves, or not, of the opportunity to carry out such monitoring. Nevertheless, by offering that opportunity the Russian authorities undoubtedly gave additional weight to the guarantees previously given.
In view of the documents before it and the above considerations, the Court finds nothing which could reasonably have given the Slovakian authorities grounds to doubt the credibility of the guarantees provided by the Russian Prosecutor General during the decision-making process. In the light of all the material before it, the Court can accept the conclusion reached, namely that the facts of the case do not disclose substantial grounds for believing that the applicants, if extradited to Russia, face a real and personal risk of torture or of inhuman or degrading treatment or punishment within the meaning of Article 3 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicants further complained that criminal proceedings against them in Russia would not meet the requirements of a fair trial. They invoked, in particular, the fact that the accusation against them was based solely on the statements of a person who had been coerced into making such statements under torture. They relied on Article 6 § 1 of the Convention, which, in its relevant part, provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court has earlier admitted that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive suffered or risked suffering a flagrant denial of a fair trial in the requesting country (see, for example, Soering v. the United Kingdom, 7 July 1989, § 121, Series A no. 161, or Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 90-91, ECHR 2005‑I).
It considers that the above argument raised by the applicants in the present case does not justify the conclusion that they risk suffering a flagrant denial of a fair trial in case of their extradition to Russia. In particular, the authorities of the Russian Federation, which is a Contracting Party to the Convention, expressly guaranteed a fair trial to the applicants including the assistance of defence counsel and, if needed, of interpreters. There is no indication that in the course of their trial the applicants would be deprived of a fair hearing within the meaning of Article 6 of the Convention. In addition, the Russian Government explicitly guaranteed that they would have the possibility, if need be, to lodge an application to the Court challenging any shortcomings in the domestic proceedings.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court by a majority
Decides to join the applications;
Decides to discontinue the application of Rule 39 of the Rules of Court to these cases;
Declares the applications inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
[1]1.
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