Information Note on the Court’s case-law No. 107
April 2008
Ismoilov and Others v. Russia - 2947/06
Judgment 24.4.2008 [Section I]
Article 6
Article 6-2
Charged with a criminal offence
Criminal proceedings in another country sufficient for Article 6 § 2 to apply to related extradition proceedings: violation
Article 3
Extradition
Applicants risking ill-treatment if extradited to Uzbekistan: violation
Facts: The applicants, who are 12 Uzbek nationals and one Kyrgyz national, were arrested in June 2005 in Russia. They were the subject of an extradition request from the government of Uzbekistan, which claimed that they had financed the May 2005 unrest in the Uzbek city of Andijan. The applicants were held in detention with a view to extradition until March 2007, when they were released. In 2006 the United Nations High Commissioner for Refugees granted the applicants refugee status determining that they each had a well-founded fear of being persecuted and tortured if returned to Uzbekistan. The Russian authorities refused to give them refugee status or asylum. Instead, a deputy prosecutor general ordered their extradition to Uzbekistan after noting that they had “committed” acts of terrorism and other criminal offences and that the Russian authorities had received diplomatic assurances from the Uzbek government that they would not be tortured or sentenced to death upon their return. The extradition orders were upheld by the Russian courts, but the applicants were not extradited because of an interim measure indicated by the Court under Rule 39 of the Rules of Court.
Law
Article 3 – Most of the applicants had left Uzbekistan in order to flee persecution on account of their religious beliefs or successful businesses. Some of them had experienced earlier ill-treatment at the hands of the Uzbek authorities, others had seen their relatives or business partners arrested and charged with participation in illegal extremist organisations. After the unrest in Andijan in May 2005 the applicants were arrested in Russia at the request of the Uzbek authorities, who suspected them of financing the insurgents. It was the Court’s task to establish whether there existed a real risk of ill-treatment in the event of the applicants’ extradition to Uzbekistan. Information from a number of objective sources demonstrated that problems in connection with the ill-treatment of detainees still persisted in Uzbekistan and no concrete evidence had been produced of any fundamental improvement in the protection against torture in recent years. Although the Uzbek government had adopted certain measures designed to combat the practice of torture, there was no proof that those measures had returned any positive results. The Court was therefore persuaded that ill-treatment of detainees was a pervasive and enduring problem in Uzbekistan. Moreover, as to the applicants’ personal situation, given that the UN High Commissioner for Refugees had determined they each had a well-founded fear of being persecuted and ill-treated if extradited to Uzbekistan and had granted them refugee status and taking into account the well-documented evidence of widespread torture in that country, the Court was persuaded that the applicants would be at a real risk of suffering ill-treatment if extradited. Finally, given that the practice of torture in Uzbekistan had been described by reputable international experts as systematic, the Court was not persuaded that the assurances from the Uzbek authorities offered a reliable guarantee against the risk of ill-treatment.
Conclusion: violation (six votes to one) in the event of the extradition orders being enforced.
Article 6 § 2 – Applicability – The applicants had not been charged with any criminal offence within Russia. The extradition proceedings against them therefore did not concern the determination of a criminal charge within the meaning of Article 6 of the Convention. However, the applicants’ extradition had been ordered for the purpose of their criminal prosecution. The extradition proceedings were therefore a direct consequence, and the concomitant, of the criminal investigation pending against the applicants in Uzbekistan. The Court therefore considered that there was a close link between the criminal proceedings in Uzbekistan and the extradition proceedings justifying the extension of the scope of the application of Article 6 § 2 to the latter. Moreover, the wording of the extradition decisions clearly showed that the prosecutor regarded the applicants as “charged with criminal offences” which was in itself sufficient to bring into play the applicability of Article 6 § 2 of the Convention. The Court further considered that an extradition decision might raise an issue under Article 6 § 2 if supporting reasoning, which could not be dissociated from the operative provisions, amounted in substance to the determination of the person’s guilt. The extradition decisions in the present case declared that the applicants should be extradited because they had “committed” acts of terrorism and other criminal offences in Uzbekistan. That statement was not limited to describing a “state of suspicion” against the applicants, it represented as an established fact, without any qualification or reservation, that they had been involved in the commission of the offences, without even mentioning that they denied their involvement. The wording of the extradition decisions amounted to a declaration of the applicants’ guilt which could encourage the public to believe them guilty and which prejudged the assessment of the facts by the competent judicial authority in Uzbekistan.
Conclusion: violation (unanimously).
Referring to the case of Nasrulloyev v. Russia, no. 656/06 (see Information Note no. 102), the Court also found violations of Article 5 § 1 (unlawful detention) and Article 5 § 4 of the Convention (review of lawfulness of detention).
Article 41 – EUR 15,000 to each of the applicants in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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