CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 avril 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FF { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:18pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA3C2123C { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sF2177834 { margin-top:6pt; margin-left:21.3pt; margin-bottom:6pt; text-indent:0.05pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s64D816E9 { margin-top:36pt; margin-bottom:24pt; text-align:justify; font-size:14pt } .s72625049 { margin-top:24pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s132B84CB { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify } .sD5D4358A { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .sCBC6AB24 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify } .s34B27CDE { margin-top:12pt; margin-left:28.35pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s54C37244 { margin-top:24pt; margin-left:21.55pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s677DA8A { margin-top:18pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8C50CFA1 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD551674B { margin-top:0pt; margin-bottom:0pt; text-indent:18pt; text-align:justify } .s6EF3B654 { margin-top:12pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s6B505E72 { margin:0pt; padding-left:0pt } .s60FFF64E { margin-top:12pt; margin-left:39.55pt; margin-bottom:6pt; text-indent:-18pt; text-align:justify; font-family:Arial; font-style:italic; list-style-position:inside } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA6CAF0 { margin-top:30pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .s168049A { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s4FDFFCF5 { margin-top:18pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s47E2B0C6 { margin-top:6pt; margin-bottom:0pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sAA8DEB86 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7E121DAC { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .sB878A1D4 { margin-top:18pt; margin-bottom:18pt; text-indent:21.55pt; text-align:justify } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s8B80EBE7 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .s34A4A800 { margin-top:18pt; margin-left:35.45pt; margin-bottom:12pt; text-indent:-13.9pt; text-align:justify } .sB9A2E431 { margin-top:12pt; margin-left:38.15pt; margin-bottom:12pt; text-indent:8.8pt; text-align:center; font-size:10pt } .sB853CD26 { font-family:Arial; font-size:8pt } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s87F9F0E0 { margin-top:12pt; margin-left:48.75pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1F7E1516 { margin-top:18pt; margin-left:48.75pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAAD669EE { font-family:Arial; font-size:6.67pt; font-weight:bold; vertical-align:super } .s9E8CA62 { margin-top:18pt; margin-left:49.65pt; margin-bottom:12pt; text-indent:-17.9pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s539148BA { font-family:Arial; font-style:italic; color:#000000 } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD777C0A5 { margin-top:42pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s1FDC4C78 { margin-top:30pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s197FB613 { margin-top:6pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9093EDF4 { margin-top:18pt; margin-left:17.85pt; margin-bottom:24pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC5D09D8F { margin-top:18pt; margin-left:35.45pt; margin-bottom:12pt; text-indent:-35.45pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC31874BD { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sAE6D4A18 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-2.8pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s2C695DB5 { margin-top:0pt; margin-left:21.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s86439055 { margin-top:36pt; margin-bottom:12pt } .s453B1FB7 { width:53.61pt; display:inline-block } .s7E362E6E { width:209.32pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .sA89582B { font-family:Arial; font-size:10pt; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt }       FORMER SECTION II             CASE OF SHAMAYEV AND OTHERS v. GEORGIA AND RUSSIA   (Application no. 36378/02)                     JUDGMENT   STRASBOURG   12 April 2005       FINAL   12/10/2005     In the case of Shamayev and Others v. Georgia and Russia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Mr   J.-P. C osta , President , Mr   A.B. B aka , Mr   L. L oucaides , Mr   K. J ungwiert , Mr   V. B utkevych , Mr   M. U grekhelidze , Mr   A. K ovler , judges , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 15 March 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36378/02) against Georgia and 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 thirteen nationals of those States, Mr Abdul-Vakhab Shamayev, Mr Rizvan (or Rezvan) Vissitov, Mr Khusein Aziev, Mr Adlan (or Aslan) Adayev (or Adiev), Mr Khusein Khadjiev, Mr Ruslan Gelogayev, Mr Akhmed Magomadov, Mr Khamzat Issayev, Mr Robinzon Margoshvili, Mr Giorgi Kushtanashvili, Mr Aslambek Khanchukayev, Mr   Islam Khashiev alias Rustam Elikhadjiev alias Bekkhan Mulkoyev and Mr Timur (or Ruslan) Baymurzayev alias Khusein Alkhanov (see paragraphs 54 and 55 below) of Chechen and Kist [1] origin (“the applicants”), on 4 and 9 October 2002. The applications of Mr Khanchukayev and Mr   Adayev reached the Court on 9 October 2002. They were joined to the other applicants’ complaints, which were lodged on 4 October 2002. 2.     The applicants, seven of whom had been granted legal aid limited to the admissibility stage, were represented before the Court by Ms   L.   Mukhashavria and Ms M. Dzamukashvili (authorities to act received on 9   October and 22 November 2002), lawyers who both worked for the association “Article 42 of the Constitution” in Tbilisi. The above-mentioned seven applicants were also represented by Ms N. Kintsurashvili, a lawyer working for the same association (authority dating from 4 August 2003). The lawyers were assisted by Ms V. Vandova, an adviser. 3.     The Georgian Government were represented by Mr L. Chelidze, then by Ms T. Burdjaliani, who was replaced from 9 August 2004 by Ms   E.   Gureshidze, General Representative of the Georgian Government before the Court. The Russian Government were represented by Mr   P.   Laptev, Representative of the Russian Federation at the Court. 4.     The applicants submitted, in particular, that their transfer to the Russian authorities would be contrary to Articles 2 and 3 of the Convention. They asked that the extradition proceedings against them be suspended, that the Russian authorities provide information on what would happen to them in Russia and that their complaints under Articles 2, 3, 6 and 13 of the Convention be examined by the Court. A.     Admissibility proceedings 5.     Between 3.35 p.m. and 4.20 p.m. on 4 October 2002 the applicants’ representatives sent the Court, through a series of interrupted faxes containing the names of eleven applicants (Mr Adayev and Mr   Khanchukayev were not mentioned – see paragraph 1 above), a request for application of Rule 39 of the Rules of Court. 6.     At 5 p.m. on the same date (8 p.m. in Tbilisi), given that the President of the Second Section was unavailable, the Vice-President of the Section (Rule 12) decided to indicate to the Georgian Government, in application of Rule 39, that it would be in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the eleven applicants to Russia until the Chamber had had an opportunity to examine the application in the light of the information which the Georgian Government would provide. The latter were invited to submit information on the grounds for the applicants’ extradition and the measures that the Russian Government intended to take in their regard should the extradition go ahead. It was also decided to give notice, as a matter of urgency, of the introduction of the application and its object to the Russian Government (Rule 40). 7.     At 6 p.m., the Registry of the Court telephoned the General Representative of the Georgian Government, who was in Strasbourg on official business, in order to notify him of the introduction of the application and of the Court’s decision. A few minutes later his assistant telephoned the Court from Tbilisi and asked that the names of the applicants be dictated to him, which they were. 8.     At 6.50 p.m. the Russian Government received a fax indicating the Court’s decision in respect of Russia, together with the decision taken in respect of Georgia. 9.     It proved impossible to send the Court’s decision to the Georgian Government by fax. At the other end of the telephone line, the technical staff at the Ministry of Justice, apparently on duty, referred alternately to electricity problems and a lack of paper in the fax machine. 10.     The General Representative of the Georgian Government was re-contacted. He indicated that the Court’s message had been transmitted to the Government and promised to take the necessary steps to resolve the problem with the fax line, referring vaguely to a problem beyond his control. 11.     At 7.45 p.m., following the unsuccessful attempts to send the fax, the Registry of the Court contacted the Deputy Minister of Justice with responsibility for extradition matters and for supervising the Office of the Georgian Government’s General Representative before the Court, on his mobile phone, to inform him of the problems encountered and to reiterate the Court’s decision. The Deputy Minister was told that, in the absence of a functioning fax line, this communication counted as official notification of the Court’s decision. He took note of the decision and promised to attempt to restore the line. 12.     Following a connection failure at 7.56 p.m., the letter setting out the Court’s decision went through at 7.59 p.m. (10.59 p.m. in Tbilisi). According to the extradition papers, five of the applicants were handed over to the Russian authorities at Tbilisi Airport at 7.10 p.m. (10.10 p.m. in Tbilisi). 13.     The application was allocated to the Second Section of the Court (Rule 52 § 1). Within that Section, the Chamber that would examine the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. On 8 October 2002 the Vice ‑ President of the Second Section informed that Chamber of his decision of 4 October 2002, which was approved. 14.     On 22 October 2002, under Rule 47, an application against Georgia and Russia was lodged on behalf of thirteen applicants by their representatives. 15.     On 23 October 2002 the Court asked the Russian Government to inform it of the name and address of the detention facilities in which the extradited applicants were being held. On 1 November 2002 the Russian Government asked the Court for written assurances that this information would remain confidential and would not be improperly divulged. 16.     On 5 November 2002 the Court extended until 26 November 2002 the interim measure in respect of the eight applicants detained in Tbilisi. It also decided to examine, of its own motion under Article 5 §§ 1, 2 and 4 of the Convention, which is the lex specialis in matters of detention, the complaints submitted by the applicants under Articles 6 and 13, and to give notice of the application to the respondent Governments (Rule 54 § 2 (b)). It further decided to give priority to the application (Rule 41) and to make the President of the Section personally responsible for protecting the confidentiality of any information that would be submitted by the Russian Government. The latter were then re-invited to provide the address of the detention facilities in which the extradited applicants were being held and the contact details of their lawyers. 17.     On 14 November 2002, in conditions of strict confidentiality, the Russian Government communicated the address of the establishment in which the extradited applicants were being held. 18.     On 19 November 2002, at the Court’s request, the Russian Government gave undertakings to the Court in connection with all thirteen applicants. In particular, they promised that “(a)     the death penalty [would] not be applied to them; (b)     their safety and health [would be] protected; (c)     they [would be] guaranteed unhindered access to medical treatment and advice; (d)     they [would be] guaranteed unhindered access to legal assistance and advice; (e)     they [would be] guaranteed unhindered access to the Court and free correspondence with it; and (f)     the Court [would have] unhindered access to the applicants, including through free correspondence with them and the possible organisation of a fact-finding mission”. 19.     On 20 November 2002 Ms N. Devdariani, Ombudsperson of the Georgian Republic, applied to join the proceedings as a third party (Article   36 § 2 of the Convention). 20.     On 23 and 25 November 2002 the Georgian Government requested that the interim measure be lifted, on the ground that they had received the requisite assurances from the Russian Government as to the future treatment of the eight applicants if they were extradited. On 25 November they also submitted photographs of the individuals concerned. On 26 August 2003 they submitted photographs of the cells in which the non-extradited applicants were then being held. Photographs of the extradited applicants were provided by the Russian Government on 23 November 2002 and on 22   January and 15 September 2003. 21.     On 26 November 2002, in the light of the undertakings given by the Russian Government on 19 November 2002, and considering that the question of compliance with those undertakings and the extradition procedure in Georgia would be examined during the subsequent proceedings, the Court decided not to extend the period of application of the interim measure indicated on 4 October 2002. In view of the sensitivity of the case, its political impact and the requests by the Governments, the Court also decided to classify all the documents in the case file as confidential vis-à-vis the public, in accordance with Rule 33 §§ 3 and 4 as then in force. 22.     On 6 December 2002 three applicants – Mr Gelogayev, Mr Khashiev and Mr Baymurzayev – applied to the Court, requesting a stay of execution of the extradition order issued against them on 28 November 2002. On the same date the Acting President of the Section decided not to indicate the requested interim measure to the Georgian Government. 23.     On 24 January 2003 Ms E. Tevdoradze, a member of the Georgian parliament, asked the Court for leave to intervene in the proceedings as a third party (Article 36 § 2 of the Convention). 24.     On 17 June 2003 the Court decided to hold a hearing on the admissibility of the application and to indicate to the Russian Government, under Rule 39, that it would be in the interests of the parties and the proper conduct of the proceedings before the Court, especially the preparation of the hearing, to grant Ms Mukhashavria and Ms Dzamukashvili unhindered access to the extradited applicants. In addition, the Court dismissed the requests for leave to intervene as third parties (Article 36 § 2 of the Convention) submitted by Ms N. Devdariani and Ms E. Tevdoradze (see paragraphs 19 and 23 above). 25.     By a decision of 16 September 2003, after a hearing on admissibility (Rule 54 § 3), the Chamber declared the application admissible and joined two preliminary objections by the Russian Government to the examination of the merits. The Court further decided to organise fact-finding visits to Russia and Georgia, under Article 38 § 1 (a) of the Convention and Rule 42 § 2 as then in force, with a view to establishing the facts of the case. B.     Proceedings on the merits 26.     The Chamber instructed three delegates – Mr J.-P. Costa, Mr   A.B.   Baka and Mr V. Butkevych – to carry out an investigation in the two countries. The visit to Georgia was due to take place from 28 to 31 October 2003. On 3 October 2003, following a request by the Georgian Government, it was decided to adjourn the visit on account of campaigning for the Georgian parliamentary election, scheduled for 2 November 2003. 27.     The following may be noted from the voluminous exchange of correspondence with the Russian Government to which the fact-finding visit gave rise. 28.     On 30 September 2003 the Court informed the Russian Government that its delegation would visit Russia in order to hear the extradited applicants on 27 October 2003 and to see their cells in the pre-trial detention centre (“SIZO”) in town B (see paragraph 53 below). As the Government raised no objections in their subsequent correspondence, preparations were made for the visit. 29.     On 20 October 2003 the Russian Government produced a ruling of 14   October 2003 by the Stavropol Regional Court denying the Court access to Mr Shamayev, Mr Vissitov, Mr Adayev and Mr Khadjiev on the ground that the criminal case against them was pending before it. The ruling stated that the Court delegation would only be able to visit those persons once the judgment had been delivered and become final. It also specified that the Regional Court had established that Mr Shamayev, Mr Vissitov and Mr   Adayev had never applied to the Court, while Mr Khadjiev claimed to have lodged an application with the Court against Georgia challenging his unlawful extradition, and insisted on a meeting with the judges from the Court. 30.     The communication of 20 October 2003 also contained a letter dated 15   October 2003, signed by Mr Kartashov, judge at the Stavropol Regional Court, refusing the Court leave to hear Mr Aziev, the fifth extradited applicant. The judge claimed that a hearing in that applicant’s case was due to be held on 29 October 2003 and that “the legislation on Russian criminal procedure [did] not allow for the question of contact between the judges of the European Court and Mr Aziev to be examined before the hearing and in any other context”. 31.     In submitting those documents, the Russian Government maintained that the Court’s planned fact-finding visit would infringe domestic criminal legislation and required that it be postponed until such time as a final judgment had been given in the applicants’ case. They added that such an approach reflected the principle of subsidiarity between national and European proceedings. 32.     On 22 October 2003, taking account of this information, the Court adjourned its fact-finding visit to Russia until a later date. It nonetheless reminded the Russian Government of the provisions of Articles 34 and 38   §   1   (a) of the Convention. 33.     On 7 January 2004 new dates for the visit (23-29 February 2004) were proposed to the Russian Government. They were invited to suggest, if need be, other more convenient dates by 9 January 2004. The Court emphasised that the application was being dealt with as a priority (see paragraph 16 above). The Government were also informed that if the fact of holding the visit inside the applicants’ pre-trial detention centre would create security problems, a secure location could be proposed and the applicants transferred to it. 34.     In their letter of 8 January 2004, the Russian Government criticised the Court’s press release on the adjournment of its visit in October 2003 and pointed out that, according to the Russian Constitution, the judicial authorities (in this case, the Regional Court) were independent and that, furthermore, the Convention was based on the principle of subsidiarity. 35.     On 13 January 2004 they maintained that the criminal case against the extradited applicants was pending before the Stavropol Regional Court and that, until a final and binding judgment had been given, the Court’s delegation could not meet the applicants. However, they did not rule out the possibility that the Stavropol Regional Court would alter its decision of 14   October 2003 and advised the Court to apply to it with a request to that effect. The Government explained that, by virtue of the principle of subsidiarity, the issue of contact with the applicants was solely a matter for the Regional Court and that no one, not even an international judicial body, was entitled to amend or overturn its decision. 36.     Furthermore, the Russian Government asked the Court to take the same approach as it had for Georgia (see paragraph 26 above) and to adjourn its fact-finding visit to Russia in view of the presidential election scheduled for 14 March 2004. They also submitted that the Court might experience difficulties in the North Caucasus region in February on account of the risk of terrorist attacks or poor weather conditions. 37.     On 19 January 2004, reminding the Russian Government of their undertakings of 19 November 2002, the Court informed them that it would carry out its visit at the beginning of May 2004. The option of transferring the applicants to a safer location was again raised. The Court stated that if the necessary guarantees and arrangements for the conduct of the investigation were not forthcoming on this occasion, it would be required to cancel its visit and to draw the appropriate conclusions under the Convention. 38.     In response, the Russian Government reaffirmed on 23 January 2004 that it would only be possible to visit the applicants once the judgment in their case had become final. Their undertakings of 19 November 2002 to the Court, particularly with regard to unhindered access to the applicants, concerned only the investigation phase and not the period when the case was being examined by the courts. In any event, the trial before the Stavropol Regional Court would be public and no one would be prevented from “either attending it or following the deliberations and looking at the defendants”. 39.     The dates proposed by the Court were rejected by the Russian Government on the ground that the period between 1 and 11 May coincided with Russian public holidays to commemorate victory in the Second World War; they also stated that they were taking all necessary measures to ensure the proper conduct of the visit. The idea of transferring the applicants to another location was also dismissed on security grounds. 40.     In their next letter of 5 February 2004, the Russian Government claimed that they had taken all the security measures necessary for the Court’s delegation, including an air escort, but that they could not, however, exclude the possibility of a terrorist attack. In response, the Court suggested to the Russian Government that the fact-finding visit be conducted after 12   May 2004, in other words after the public holidays in Russia, on condition that they gave a prior unconditional assurance that the delegation would have unhindered access to the applicants on that occasion. Once such an undertaking had been given, the Court would assess the risks connected with the potential terrorist attack mentioned in the letter. 41.     On 2 and 11 February 2004 the Russian Government asked that the fact-finding visit to Georgia be adjourned in view of the Russian presidential election, due to be held on 14 March 2004. On 5 and 13   February 2004 respectively, the Court dismissed these requests. 42.     On 31 October 2003 and 9 February 2004 the Georgian Government listed the witnesses whom they considered it necessary for the Court to hear. The Russian Government did the same on 23 January 2004, but on 19   February 2004 they withdrew their list of witnesses on the ground that the Court had not acceded to their various procedural requests (see paragraphs   36 and 41 above and 243 below). The applicants did not call any witnesses. 43.     From 23 to 25 February 2004 six of the non-extradited applicants and twelve witnesses were heard at the Georgian Supreme Court in Tbilisi. Ms Mukhashavria, Ms Kintsurashvili and delegations from both Governments took part in these proceedings. Two applicants – Mr Khashiev and Mr Baymurzayev – did not appear, as they had been reported missing since 17 February 2004 by the Georgian authorities. Two witnesses – Mr   R.   Markelia and Mr A. Tskitishvili – failed to appear because they were out of the country. 44.     On the last day of the proceedings, the Court considered that it was necessary to hear Mr Arabidze, Mr R. Khidjakadze and Mr G. Gabaydze, the applicants’ representatives before the domestic courts, but the lawyers were unable to appear immediately. Questions were accordingly put to them in writing, to which the Court received replies on 17 April 2004 (see paragraph   212 below). 45.     On 8 March 2004 the Court asked the two Governments to provide information on the disappearance of Mr Khashiev and Mr Baymurzayev and, if applicable, on their health and place of detention in Russia. On 13   and 29 March 2004 the Governments submitted information about those disappearances (see paragraph 101 below). 46.     On 17 March 2004 the Court informed the Russian Government of the exact dates of its fact-finding visit (5-8 June 2004). Reminding them that the previous attempts to conduct the visit had met with failure, it invited the Government to inform it by 8 April 2004 whether, on this occasion, they undertook to guarantee that the delegation would have free and unhindered access to the four applicants who had been extradited on 4 October 2002 (Mr Adayev, the fifth applicant, having been released in the meantime – see paragraph 107 below), and to the two applicants who had been arrested in Russia following their disappearance in Tbilisi (see paragraphs 100 et seq. below). Drawing the Government’s attention to Article 38 § 1 (a) of the Convention, the Court also reminded them that, in the absence of unconditional confirmation and the necessary resources to carry out the visit, it would be obliged to abandon its attempt to obtain access to the applicants and to prepare the judgment on the basis of the evidence in its possession. 47.     On 21 April 2004 the Stavropol Regional Court decided to deny the Court access to Mr Aziev. This decision was based on the same grounds as the ruling of 14 October 2003 (see paragraph 29 above). 48.     On 8 April 2004 the Russian Government informed the Court that, in spite of their determination to cooperate with it, the Court would not be able to hear Mr Shamayev, Mr Khadjiev, Mr Adayev and Mr Vissitov, since proceedings were pending before the appeal court. They made no reference to Mr   Aziev or to the two applicants who had disappeared (see paragraph 43 above) and subsequently been arrested in Russia on 19 February 2004. 49.     Given its unsuccessful attempts to persuade the Russian Government to adopt a more cooperative attitude, the Court decided on 4 May 2004 to cancel its fact-finding visit to Russia and to proceed with preparation of the judgment on the basis of the evidence before it (see, by analogy, Cyprus v. Turkey , no. 8007/77, Commission’s report of 4 October 1983, Decisions and Reports 72, p. 73, § 52). 50.     Also on 4 May 2004 it invited the parties to send it their final submissions on the merits of the case (Rule 59 § 1), together with their corrections to the verbatim record of the proceedings in Tbilisi (Rule A8 § 3 of the Annex to the Rules). On 11 June 2004 the Georgian Government filed its written observations on the merits of the case. After two extensions of the relevant deadlines, the Russian Government and the applicants also filed their observations, on 20 July and 9 August 2004 respectively. On 11   June and 9 August 2004 the Governments submitted their corrections to the verbatim record of the proceedings. 51.     On 7 and 13 September 2004 the Governments submitted their respective comments on the applicants’ claims for just satisfaction, in accordance with Rule 60 § 3. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 52.     The applicants, Mr Abdul-Vakhab Shamayev, Mr Rizvan (or Rezvan) Vissitov, Mr Khusein Aziev, Mr Adlan (or Aslan) Adayev (or Adiev), Mr Khusein Khadjiev, Mr Ruslan Gelogayev, Mr Akhmed Magomadov, Mr Khamzat Issayev, Mr Robinzon Margoshvili, Mr Giorgi Kushtanashvili, Mr Aslambek Khanchukayev, Mr Islam Khashiev alias Rustam Elikhadjiev alias Bekkhan Mulkoyev and Mr Timur (or Ruslan) Baymurzayev alias Khusein Alkhanov (see paragraphs 54 and 55 below) [2] , are thirteen Russian and Georgian nationals who were born in 1975, 1977, 1973, 1968, 1975, 1958, 1955, 1975, 1967, 19... [3] , 1981, 1979 (or 1980) and 1975 respectively. 53.     On 17 and 18 October 2002 Mr Shamayev, Mr Vissitov, Mr Aziev, Mr Adayev and Mr Khadjiev, namely the applicants who had been extradited from Georgia to Russia on 4 October 2002, were placed in a pre-trial detention centre (“SIZO”) in A, a town in the Stavropol region, in the North Caucasus (see paragraph 17 above). Their place of custody between 4 and 17/18 October 2002 remains unknown. On 26 July 2003 Mr Shamayev, Mr Khadjiev, Mr Vissitov and Mr Adayev were transferred to a SIZO in town B, in the Stavropol region. Following the Court’s request, on 7   October 2003 the Russian Government communicated the address of this SIZO and confirmed that Mr Aziev was also detained there (see also paragraph 242 below). They did not specify the date on which he had been transferred. 54.     Having been unable to hear the applicants extradited to Russia (see paragraph 49 above), the Court has used the surnames provided by Ms   Mukhashavria and Ms Dzamukashvili for four of them. The name of Mr   Khusein Khadjiev, the fifth applicant, is that mentioned on his application form, which reached the Court on 27 October 2003 (see paragraph 235 below). 55.     As to the non-extradited applicants, Mr Margoshvili has been free since his acquittal on 8 April 2003 (see paragraph 94 below); Mr Gelogayev was released following a judgment of 6 February 2004 (see paragraph 99 below); Mr Khanchukayev, Mr Issayev, Mr Magomadov and Mr Kushtanashvili were released on 5 and 6 January 2005 and 18 February 2005 (see paragraph 98 below). The identity of those six applicants has been established by the Court (see paragraphs 110-15 below). After disappearing in Tbilisi on 16 or 17 February 2004, Mr Khashiev and Mr Baymurzayev were arrested by the Russian authorities on 19 February 2004. They are apparently detained at present in the Essentuki pre-trial detention centre (see paragraph 101 below). Having been unable to hear them in Russia (see paragraphs 46 et seq. above), the Court will refer to them by the surnames communicated by their representatives when lodging the application. 56.     The facts of the case, as submitted by the parties and established by the Court during its fact-finding visit to Tbilisi, may be summarised as follows. A.     Events concerning the extradition proceedings 1.     Period prior to the application to the Court 57.     Between 3 and 5 August 2002 the applicants crossed the Russo-Georgian border near the Guirevi checkpoint (Georgia). Some of them were injured and were carrying sub-machine guns and grenades. Having asked the Georgian border guards for help, they apparently handed over their weapons voluntarily. An identity check was carried out. As a result, the names of the individuals claiming to be Abdul ‑ Vakhab Shamayev, Rizvan (or Rezvan) Vissitov, Khusein Aziev, Adlan (or Aslan) Adayev (or Adiev), Khusein Khadjiev (or Khosiin Khadjayev, Khajiev), Ruslan Mirjoyev, Adlan (Aldan) Usmanov, Khamzat Issiev, Ruslan Tepsayev, Seibul (or Feisul) Bayssarov, Aslan Khanoyev, Timur (or Ruslan) Baymurzayev (or Baemurzayev) and Islam Khashiev were recorded. Only the first five applicants would appear to have been in possession of Russian passports. 58.     The applicants were immediately transferred by helicopter to Tbilisi; they were initially placed in a civilian hospital, where those who were injured were operated on. On 5 August 2002 Mr Tepsayev (Margoshvili), Mr Vissitov, Mr Baysarov (Kushtanashvili), Mr Aziev, Mr Shamayev, Mr   Khadjiev and Mr Issiev (Issayev) were charged with importing weapons in breach of the customs regulations (Article 214 § 4 of the Criminal Code), illegally carrying, handling and transporting weapons (Article 236 §§ 1, 2 and 3 of the Code) and crossing the border illegally (Article 344 of the Code). On 6 August 2002, further to an application by the Ministry of Security’s investigating body, the Vake-Saburtalo Court of First Instance, in Tbilisi, ordered that they be placed in pre-trial detention for three months. According to the orders of 5 and 6 August, Mr Shamayev was arrested on 3   August and six other applicants on 6 August 2002. 59.     On 6 August 2002, Mr Khanoyev (Khanchukayev), Mr   Baymurzayev, Mr Khashiev, Mr Usmanov (Magomadov), Mr Mirjoyev (Gelogayev) and Mr Adayev were placed under investigation on the same charges. On 7 August 2002 the Vake-Saburtalo Court of First Instance ordered that they be placed in pre-trial detention for three months. It appears from those orders that Mr Usmanov (Magomadov) and Mr Mirjoyev (Gelogayev) were arrested on 7 August, Mr Adayev on 5 August and the three other applicants on 6 August 2002. 60.     On the basis of those orders, on 6 and 7 August 2002 the applicants were transferred to Tbilisi Prison no. 5, with the exception of Mr   Margoshvili, who was placed in the central prison infirmary. On an unspecified later date Mr Adayev was also hospitalised (see paragraph 142 below). According to the detention orders, all the applicants have Russian nationality. 61.     On 1 November 2002 the pre-trial detention orders in respect of Mr   Margoshvili, Mr Issayev and Mr Kushtanashvili were extended for three months by the Tbilisi Court of Appeal. On 4 November 2002 the same court also extended by three months the pre-trial detention orders in respect of Mr   Khanchukayev, Mr Gelogayev, Mr Khashiev, Mr Magomadov and Mr   Baymurzayev. 62.     On 6 August 2002 Mr V.V. Ustinov, Procurator-General of the Russian Federation, travelled to Tbilisi and met his Georgian counterpart. He handed over the extradition request for the applicants. As the latter had been placed under investigation in Georgia and the documents submitted in support of the extradition request were considered inadequate in the light of Georgian legislation and international law, Mr N. Gabrichidze, the Georgian Procurator-General, declined verbally to extradite the applicants (see paragraphs 182 et seq. below). At the same meeting the Georgian Procurator-General’s Office asked its Russian counterpart to submit the relevant documents in support of the extradition request, together with assurances as to the treatment the applicants would receive in the event of extradition and confirmation that their rights would be respected. 63.     It appears from the file that the Georgian Procurator-General transmitted those demands on the same date in writing. He informed his Russian counterpart that on 6 August 2002 criminal proceedings had been instituted in Georgia against all of the applicants, that seven were being held in pre-trial detention and that the six others would soon be brought before a court for a ruling on their detention. He noted that the extradition request did not contain information on the identity, nationality and home addresses of the persons concerned or documents or the statutory provisions concerning the offences with which they were charged in Russia or duly certified detention orders. The Georgian Procurator-General concluded that, in view of those circumstances, “he [was] unable to examine the extradition request in respect of those individuals”. 64.     On 12 and 19 August and 30 September 2002 the Russian authorities sent their Georgian counterparts the required documents, namely: (i)     the investigation orders in respect of each of the applicants, issued by the decentralised service of the federal Procurator-General’s Office in Chechnya, dated 8 August 2002; (ii)     the international search warrant in respect of the applicants, issued by the Russian authorities on 15 August 2002; (iii)     certified copies of the provisional detention orders in respect of each of the applicants, issued on 16 August 2002 under Article 108 of the new Code of Criminal Procedure by the Staropromislovsk Court of First Instance (Grozny) on an application by the investigator responsible for the case; (iv)     extracts from the case file of the criminal proceedings brought against the applicants in Russia, setting out the charges against them; (v)     photographs; (vi)     copies of passports, with photographs; (vii)     copies of Form no. 1 [4] ; (viii)     other information on the applicants’ nationality and identity. 65.     The Georgian Government submitted to the Court only copies of the documents listed under items (i), (ii) and (iii). The documents listed in item   (iv) had apparently been classified as “confidential” by the Russian authorities in the interest of the proper administration of justice. 66.     According to the orders of 8 August 2002, which were submitted to the Court by the Georgian Government, the applicants were under investigation in Russia for causing bodily harm to employees of the police and security forces (a crime punishable by life imprisonment or the death penalty – see Article 317 of the Criminal Code, paragraph 260 below); organising illegal armed groups and participation in such groups, with aggravating circumstances (punishable by a sentence of up to five years’ imprisonment under Article 208 § 2 of the Criminal Code); gunrunning with aggravating circumstances (punishable by two to six years’ imprisonment under Article 222 § 2 of the Criminal Code); and illegal crossing of the Russian Federation’s border in July 2002, with aggravating circumstances (punishable by up to five years’ imprisonment under Article   322 § 2 of the Criminal Code). (The same documents, submitted by the Russian Government, are dated 13 August 2002 with regard to Mr   Adayev and Mr Vissitov.) 67.     As Article 6 of the Georgian Criminal Code prohibits the extradition of an individual to a country in which the crime with which he or she is charged is punishable by the death penalty (see paragraph 256 below), the Georgian Procurator-General’s Office asked the Russian authorities to guarantee that that penalty would not be imposed on the applicants. 68.     In his letter of 26 August 2002, Mr V.V. Kolmogorov, Russian Acting Procurator-General, informed his Georgian counterpart that an investigation had been opened in Russia after an attack on Russian army units by illegal armed groups in a border area on 27 July 2002. Having learned that thirteen individuals who illegally crossed the border shortly after this attack had been arrested in Georgia, and having questioned three witnesses, the Russian authorities had placed those individuals under investigation. Given that the individuals concerned had been armed when they crossed the border, and having regard to other evidence, the Russian authorities believed that they were the perpetrators of the above attack. Mr   Kolmogorov pointed out that the Georgian authorities had stated that they would be prepared to extradite the applicants if the Russian side submitted the necessary documents. Since all of those documents had been handed over on 19 August 2002, the Russian authorities repeated their request for extradition of the individuals concerned on the basis of the Minsk Convention, concluded under the auspices of the Community of Independent States (CIS – see paragraph 266 below). Mr Kolmogorov provided assurances that, given the moratorium on the death penalty in force in Russia since 1996, the individuals concerned would not be sentenced to death. At the same time, he asked that the case file in the criminal proceedings brought against the applicants in Georgia be sent to the Russian authorities, who would take responsibility for the subsequent proceedings. 69.     On 27 August 2002 Mr V.I. Zaytsev, Russian Deputy Procurator-General, informed the Georgian authorities that a moratorium on the death penalty was in force in Russia and that, pursuant to a judgment of the Constitutional Court of 2 February 1999 (see paragraph 262 below), no one could be sentenced to death by any court in a subject of the Federation. 70.     On 22 September 2002 the charges against the applicants in Russia were redefined and extended. The applicants were also placed under investigation for terrorism. The texts of the relevant or