CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 mai 2010

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margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s308FBE0C { margin-top:0pt; margin-left:17.3pt; margin-bottom:12pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s82D7B801 { width:22.93pt; display:inline-block } .sF9287AF { width:174.97pt; display:inline-block }       FIRST SECTION             CASE OF KHODZHAYEV v. RUSSIA   (Application no. 52466/08)               JUDGMENT       STRASBOURG   12 May 2010   FINAL   04/10/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khodzhayev v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 22 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 52466/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tajikistani national, Mr Zikrullokhon Ismatulloyevich Khodzhayev (“the applicant”), on 31 October 2008. 2.     The applicant was represented by Mr D. Lomakin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin,   Representative of the Russian Federation at the European Court of Human Rights. 3.     On 3 November 2008 the President of the First Section decided to apply Rule   39 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Tajikistan until further notice. 4.     On 17 December 2008 the President of the First Section decided to apply Rule   41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1977 and lives in Khunzhand, Tajikistan. He is currently residing in Moscow. A.     The applicant's account of events 1.     Background to the case 6.     The applicant is a practising Muslim. He states that he has not been a member of any political organisations, including Hizb ut-Tahrir (“HT”), an Islamic organisation banned in Russia, Germany and some Central Asian republics, but has nonetheless been persecuted by the Tajikistani authorities on account of presumed membership of that organisation. 7.     By a decision of 22 June 2000 the Ministry of Security of Tajikistan instituted criminal proceedings against the applicant on account of his membership of “the illegal extremist-religious party 'Hizb ut-Tahrir'”. The decision stated that the applicant had committed a number of serious and particularly serious crimes, namely, incitement to overthrow the political regime in Tajikistan and dissemination of material containing incitement to religious hatred. On the same date the Ministry of Security of Tajikistan placed the applicant on a search list, drew up an arrest warrant in his name and suspended the investigation because the applicant's whereabouts were unknown. 8.     The applicant fled to Moscow in 2001. 9.     Between 27 October and 7 December 2001 the applicant was kept in detention in Russia with a view to his extradition. He was subsequently released because no formal request for his extradition was received. 10.     The applicant registered his place of residence in Russia with the relevant authorities. 2.     Extradition proceedings 11.     On 28 November 2007 the applicant was arrested by servicemen of the Moscow Department of the Federal Security Service and police of the Odintsovo District. 12.     In the morning of 30 November 2007 the applicant was questioned in the absence of a lawyer. The servicemen who carried out the interview threatened to use violence against the applicant and his family unless he voluntarily agreed to leave Russia for Tajikistan. According to the applicant, he was not informed of the reasons for his arrest in the course of the interview. Neither did he have access to a lawyer during the two following weeks in detention. 13.     On 30 November 2007 the Odintsovo Town Court of the Moscow Region (“the Town Court”) ordered the applicant's placement in custody pending his extradition. The term of detention was not specified. 14.     Between 30 November 2007 and 30 January 2008 the applicant was kept in a temporary detention facility of the Odintsovo District Department of the Interior. In the meantime his wife was expelled to Tajikistan. 15.     On 21 December 2007 the Prosecutor General of Tajikistan sent a request for the applicant's extradition to the Prosecutor General of Russia and enclosed a copy of the decision of 22 June 2000 to charge the applicant with membership of a proscribed organisation and copies of the search and arrest warrants. 16.     On 4 June 2008 the Deputy Prosecutor General of Russia ordered the applicant's extradition to Tajikistan to face criminal prosecution. The order stated that the applicant had been charged with membership of a proscribed religious-extremist organisation and dissemination of material containing incitement to religious hatred. 17.     The applicant challenged the extradition order of 4 June 2008 in court. 18 .     On 22 August 2008 the Moscow City Court upheld the order of 4   June 2008. It reasoned that there were no legal grounds impeding the applicant's extradition to Tajikistan because the applicant was a Tajik national and his request for political asylum had been rejected. The applicant's claims that he was not guilty of the crimes of which he had been charged had been examined and dismissed “on the ground that issues of falsification of charges in his respect by law-enforcement agencies of Tajikistan [were] not subject to examination in the course of [that] court hearing”. It further stated that allegations of persecution on religious grounds had not been confirmed by reliable evidence, and concluded as follows: “[Mr] Khodzhayev does not have refugee status in the Russian Federation, has not been and is not being persecuted on grounds of his race, religion, citizenship, nationality or association with a particular group [and] has not applied for Russian citizenship or political asylum.” 19 .     On 28 October 2008 the Supreme Court of Russia examined an appeal by the applicant against the judgment of 22 August 2008 and dismissed it, reproducing the reasoning of the Moscow City Court verbatim. 3.     Asylum proceedings 20.     On 11 January 2008 the applicant lodged a request for political asylum with the Moscow Department of the Federal Migration Service (“the Moscow FMS”). 21.     On 11 January 2008 the applicant requested protection from the Russian Office of the United Nations High Commissioner for Refugees (“the UNHCR Office”). It appears that UNHCR Office staff were not allowed to visit the applicant over the following months. 22.     On 16 May 2008 the Moscow FMS refused to grant the applicant political asylum. On an unspecified date the applicant was notified of that decision. 23.     The applicant challenged the Moscow FMS's decision of 16 May 2008 in court. On an unspecified date the Zamoskvoretskiy District Court of Moscow refused to admit the applicant's statement of claim because he had failed to pay the court fee. The applicant appealed. 24.     On 18 November 2008 the Moscow City Court quashed the decision of the Zamoskvoretskiy District Court of Moscow and ordered it to admit the applicant's statement of claim with no court fee. It appears that the proceedings challenging the Moscow FSM's decision are now pending before the Zamoskvoretskiy District Court of Moscow. 25.     On 26 November 2008 UNHCR Office staff interviewed the applicant. B.     The Government's account of events 1.     Background to the case 26.     On 22 June 2000 an investigator from the Tajik Ministry of Security, having obtained a prosecutor's approval, issued an arrest warrant in respect of the applicant. 27.     In July 2001 the applicant arrived in Russia illegally looking for well-paid employment. During the following six years the applicant filed no request to register himself as a temporary resident with Russian migration offices. Neither did he lodge a request for asylum. The applicant did not have a migration card. 28.     On 27 October 2001 the applicant was arrested in Moscow pursuant to Article 61 of the Minsk Convention as a person put on an international wanted list. 29.     On 7 December 2001 the applicant was released from custody because no request for his extradition had been received. 30.     On 19 February 2002 the Tajik Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant. 31.     On 27 February 2002 the Russian police were instructed to search for the applicant. 2.     Extradition proceedings 32.     On 28 November 2007 the applicant was arrested by servicemen of the Federal Security Service and the police. 33 .     On the same date the applicant was questioned by an official of the Odintsovo prosecutor's office. The written statement signed by the applicant certified that he was fluent in Russian and did not need an interpreter. The statement reads, in so far as relevant, as follows: “... I am aware of the fact that my name has been put on a wanted list in Tajikistan. I cannot give any details concerning the criminal case against me in Tajikistan. The investigative documents from Tajikistan that I have been provided with contain my personal data but I did not commit the crimes mentioned in them. I cannot submit more information on the substance of the criminal case against me. ... I am not being persecuted in Tajikistan for political reasons. I am a Tajik national and I have not applied for political asylum or refugee status to any agencies, consulates, embassies or representative offices.” 34 .     On 30 November 2007 the Town Court held the hearing and examined the Odintsovo prosecutor's office's request to authorise the applicant's placement in custody pending extradition. The request that mentioned the fact that the applicant had been suspected of serious and particularly serious crimes in Tajikistan was read out in the courtroom. In the document entitled “Decision concerning the choice of custodial detention as a preventive measure” the Town Court observed that the applicant was suspected of creating a criminal organisation, inciting to racial and religious hatred and calling for the overthrow of the Tajik constitutional regime and ordered the applicant's placement in custody pursuant to the Minsk Convention and Article 108 of the CCP. The Town Court reasoned that the applicant was a foreign national, had no permanent employment or place of residence and, unless detained, might abscond, continue his illegal activities or interfere with the course of criminal proceedings. The applicant was advised of his right to appeal against the decision before the Moscow Regional Court within three days. 35.     On 24 December 2007 the Tajik Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant as a person charged with terrorism-related crimes. 36 .     On 28 December 2007 the Town Court ordered the applicant's placement in custody pending extradition pursuant to Articles 108 and 466 of the CCP. The document was entitled “Decision concerning the choice of custodial detention as a preventive measure”. The applicant was advised of his right to appeal against the decision before the Moscow Regional Court within three days. 37.     The applicant did not appeal against the Town Court's decisions of 30 November and 28 December 2007. 38 .     On 11 January 2008 the applicant argued for the first time that in Tajikistan he had been persecuted on political grounds in his letters to the UNHCR Office and the Moscow FMS. 39.     On 4 June 2008 the Russian Deputy Prosecutor General granted the Tajik Prosecutor General's Office's request and ordered the applicant's extradition. The applicant was advised of his right to appeal against the order within ten days. 40.     On 28 July 2008 the applicant appealed against the extradition order. 41.     On 5 August 2008 the Moscow FMS received the applicant's request for temporary asylum. 42.     On 22 August 2008 the Moscow City Court dismissed the applicant's appeal against the extradition order. 43.     On 27 August 2008 the applicant appealed against the judgment of 22 August 2008. 44.     On 28 October 2008 the Russian Supreme Court dismissed the applicant's appeal and upheld the judgment of 22 August 2008. On 13   November 2008 the applicant was served with the appeal court's decision. 3.     Asylum proceedings 45.     On 24 January 2008 the Russian Prosecutor General's Office received the applicant's counsel's request to allow UNHCR Office staff to visit the applicant. A request made by the UNHCR Office reached the Russian Prosecutor General's Office only on 23 July 2008. The request did not contain the personal details of the staff in question. As soon as those details had been communicated by the UNHCR Office, the Russian Prosecutor General's Office issued a permit to visit the applicant. 46.     On an unspecified date the UNHCR Office informed the prosecutor's office of the Moscow Region that the applicant was eligible for international protection. 47.     On 26 February 2008 the applicant requested the Moscow FMS to grant him refugee status. 48.     On 20 March 2008 officials of the Moscow FMS visited the applicant in the remand prison and interviewed him. 49.     The applicant was provided with ample opportunities to substantiate his fears of persecution in Tajikistan. He was interviewed by State officials in this respect on several occasions. 50.     On 16 May 2008 the Moscow FMS, having thoroughly studied the applicant's request, dismissed it and refused to declare the applicant a refugee. The applicant appealed against that decision. 51.     On 3 July 2008 the Zamoskvoretskiy District Court of Moscow refused to admit the applicant's appeal against the Moscow FMS's decision of 16 May 2008 and invited the applicant to eliminate the discrepancies in his appeal by 18 July 2008. 52.     On 25 August 2008 the Zamoskvoretskiy District Court of Moscow ruled that the applicant's appeal against the Moscow FMS's decision should not be examined because the applicant had failed to eliminate the discrepancies referred to in the ruling of 3 July 2008. 53.     On 26 November 2008 the applicant's request for temporary asylum was dismissed. 54.     On 18 November 2008 the Moscow City Court quashed the ruling of 25 August 2008 and remitted the matter for fresh examination at first instance. 55.     On 12 March 2009 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's appeal against the Moscow FMS's decision of 16   May 2008. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Code of Criminal Procedure (CCP) 56 .     Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 108 § 3). The request should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article   108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 §   1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions up to twelve months may be granted on an investigator's request approved by a prosecutor of the Russian Federation only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 57 .     Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article   124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 58 .     Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the measure of restraint in respect of the person whose extradition is sought. The measure of restraint is to be applied in accordance with the established procedure (Article 466 § 1). B.     Decisions of the Constitutional Court 1.     Decision of the Constitutional Court no. 101-O of 4 April 2006 59.     The Constitutional Court examined the compatibility of Article 466 § 1 of the CCP with the Russian Constitution and reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 60 .     In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP, or in excess of the time-limits fixed therein. 2.     Decision of the Constitutional Court no. 158-O of 11 July 2006 on the Prosecutor General's request for clarification 61.     The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 62.     The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction. 3.     Decision of the Constitutional Court no. 333-O-P of 1 March 2007 63.     In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. C.     Decision of the Supreme Court 64 .     By a decision ( решение ) of 14 February 2003 the Supreme Court of the Russian Federation granted the Prosecutor General's request and classified a number of international and regional organisations as terrorist organisations, including HT (also known as the Party of Islamist Liberation), and prohibited their activity in the territory of Russia. It held in relation to HT that it aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States. III.     INTERNATIONAL INSTRUMENTS AND OTHER DOCUMENTS A.     Council of Europe 65 .     Recommendation No.   R (98) 13 of the Council of Europe Committee of Ministers to Member States on the rights of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights reads as follows: “Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No.   R (81) 16 of the Committee of Ministers..., 1.     An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2.     In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when:... 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief;... 2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 66 .     The Council of Europe Commissioner for Human Rights issued a Recommendation (CommDH(2001)19) on 19 September 2001 concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 67.     For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France , no. 25389/05, §§   36-38, ECHR 2007 ‑ ... B.       The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the Minsk Convention) 68 .     When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, a requested official body applies its country's domestic laws (Article 8 § 1). 69.     Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 70.     The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 71 .     The person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days from the date of placement in custody (Article   62 § 1). C.     Reports on Tajikistan 72 .     Conclusions and Recommendations: Tajikistan, issued by the UN   Committee Against Torture on 7 December 2006   (CAT/C/TJK/CO/1), refer to the following areas of concern regarding the human-rights situation in the country: “The definition of torture provided in domestic law ... is not fully in conformity with the definition in article 1 of the Convention, particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity. ... There are numerous allegations concerning the widespread routine use of torture and ill-treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings. Further, there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment. ... The Committee is also concerned at: (a) The lack of a legal obligation to register detainees immediately upon loss of liberty, including before their formal arrest and arraignment on charges, the absence of adequate records regarding the arrest and detention of persons, and the lack of regular independent medical examinations; (b) Numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest, due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials; (c) Reports that unlawful restrictions of access to lawyers, doctors and family by State agents are not investigated or perpetrators duly punished; (d) The lack of fundamental guarantees to ensure judicial supervision of detentions, as the Procuracy is also empowered to exercise such oversight; (e) The extensive resort to pretrial detention that may last up to 15 months; and (f) The high number of deaths in custody. ... There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the Convention by both law enforcement officials and investigative bodies. ... There are reports that there is no systematic review of all places of detention, by national or international monitors, and that regular and unannounced access to such places is not permitted.” 73 .     Amnesty International in its document “Central Asia: Summary of Human Rights Concerns: March 2007 – March 2008” describes the situation regarding freedom of religion in Tajikistan as follows: “Members of religious minorities and human rights defenders were concerned that decisions taken by the authorities restricted freedom of religion and belief. During the second half of 2007 unregistered mosques were closed down or demolished in the capital, Dushanbe. ... A proposed new law on religion raised fears that unregistered religious activity would be banned. The draft law proposed stringent registration requirements which would make it very difficult for religious minorities to apply or re-apply for legal status. It also proposed to limit the number of registered places of worship and to ban missionary activity. Pending the adoption of the new law the government was not accepting new applications for legal status from religious groups. ... In November [2007] the UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, published a report on her visit to Tajikistan earlier in the year. The report's conclusions emphasized the “need to devise educational policies aimed at strengthening the promotion and protection of human rights and eradicating prejudices, which are incompatible with the freedom of religion or belief”. The conclusions also stressed that registration procedures for religious groups should be straightforward and that “[r]egistration should not be a precondition for practising one's religion”. The Special Rapporteur recommended that the Tajikistani authorities ensure that “any measure taken to combat acts of terrorism complies with their obligations under international law, in particular international human rights law, refugee law and humanitarian law.” She stressed that “an independent, neutral and impartial judiciary and prompt access to a lawyer [were] vital to safeguarding also the freedom of religion or belief of all individuals and religious communities”. 74 .     The World Report Chapter: Tajikistan by Human Rights Watch, released in January 2009, describes the human-rights situation in the country as follows: “ Religious Freedom At this writing, the government had not yet sent to parliament a controversial draft law on religion that had been sharply criticized in 2007. Under the draft law, all religious groups must reregister and meet such onerous conditions as providing the address of any person who, at any point during the past 10 years, has been a member. The draft also prohibits foreigners from chairing religious organizations. ... Actions in the Name of Countering Terrorism and Extremism Following a recommendation by the prosecutor general, the Supreme Court of Tajikistan designated Hizb ut-Tahrir, a group that supports the reestablishment of the Caliphate, or Islamic state, by peaceful means, an "extremist" organization. The government continued to arrest alleged Hizb ut-Tahrir members and convict them either of sedition or incitement to racial, ethnic, or religious hatred, often simply for possessing the organization's leaflets. ... Torture and Deaths in Custody Tajikistan's definition of torture does not comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. In a positive move, in March 2008 the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings. Experts agree that in most cases there is impunity for rampant torture in Tajikistan. In one of the few cases that reached the courts, two policemen in Khatlon province were convicted in August 2008 for ill-treating minors; one of the two received a four-year prison sentence, and the other a suspended sentence. NGOs and local media reported at least three deaths in custody in 2008, including the death from cancer of the ex-deputy chair of the Party of Islamic Revival Shamsiddin Shamsiddinov. The party alleged his arrest in 2003 was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery. In an April 1, 2008 decision ( Rakhmatov et al. v. Tajikistan ) the UN Human Rights Committee found that Tajikistan violated the rights, including freedom from torture, of five applicants, two of them minors when they were arrested. Tajikistan failed to cooperate with the committee's consideration of the complaint. Similar violations were established in an October 30, 2008 decision ( Khuseynov and Butaev v.   Tajikistan )”.   75 .     The 2008 US Department of State Country Report on Human Rights Practices, released on 25 February 2009, provides the following information in relation to Tajikistan: “Tajikistan ... is an authoritarian state, and political life is dominated by President Emomali Rahmon and his supporters... The government's human rights record remained poor, and corruption continued to hamper democratic and social reform. The following human rights problems were reported: ... torture and abuse of detainees and other persons by security forces; threats and abuse by security forces; impunity of security forces; lengthy pretrial detention; denial of right to fair trial; harsh and life-threatening prison conditions; prohibited international monitor access to prisons; ... restrictions on freedom of religion, including freedom to worship; ... The law prohibits ... practices [of torture and other cruel, inhuman, or degrading treatment or punishment]; however, security officials reportedly employed them. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture. Security officials, particularly from the Ministry of Interior (MOI), continued to use beatings or other forms of coercion to extract confessions during interrogations. Beatings and other mistreatment were common also in detention facilities. A 2008 study by the Bureau for Human Rights and Rule of Law, a local NGO, credibly found a bias in the criminal justice system toward law enforcement officials exacting confessions from those who are arrested. Articles in the criminal code do not specifically define torture, and the country's law enforcement agencies have not developed effective methods to investigate possible violators. ... The Ministry of Justice (MOJ) continued to refuse access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions. Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions, but their representatives were limited to administrative or medical sections, and they were accompanied by ministry of justice personnel. The government has not signed an agreement with the International Committee for the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centers, and ICRC's international monitoring staff has not returned to the country since departing in 2007. During the year detainees and inmates complained of harsh and life-threatening conditions, including overcrowding and lack of sanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because of lack of access. Organizations that work on prison issues reported that infection rates of tuberculosis and HIV was significant, and that the quality of medical treatment was low. ... The government has not substantially altered the Criminal Procedure Code (CPC) since the Soviet period, and the criminal justice system failed to protect individuals from arbitrary arrest or detention. There were few checks on the power of prosecutors and police to make arrests . ... Victims of police abuse may submit a formal complaint in writing to the officer's superior. However, most victims chose to remain silent rather than risk retaliation by the authorities. ... Prosecutors are empowered to issue arrest warrants, and there is no requirement for judicial approval of an order for pretrial detention. The law allows police to detain a suspect without a warrant in certain circumstances, but a prosecutor must be notified within 24 hours of arrest. Pretrial detention may last up to 15 months in exceptional circumstances. Local prosecutors may order pretrial detention for up to two months; subsequent detentions must be ordered by progressively higher level prosecutors. A defendant may petition for judicial review of a detention order. However, judges rarely questioned detention decisions, and observers regarded this review as a formality. Individuals have the right to an attorney upon arrest, and the government must appoint lawyers for those who cannot otherwise afford one. In practice the government did not always provide attorneys, and those it did provide generally served the government's interest, not the client's. There is no bail system, although criminal case detainees may be released conditionally and restricted to their place of residence pending trial. According to the law, family members are allowed access to prisoners only after indictment; officials occasionally denied attorneys and family members access to detainees. The authorities held many detainees incommunicado for long periods without formally charging them. ... Although the law provides for an independent judiciary, in practice the executive branch and criminal networks exerted pressure on prosecutors and judges. Corruption and inefficiency were significant problems. The C[ode of Criminal Procedure] gives the prosecutor a disproportionate degree of power in relation to judges and defense advocates. This power includes control of the formal investigation and oversight of the entire case proceedings. "Supervisory powers" provided by law allow prosecutors to protest a court decision outside of normal appeal procedures. Prosecutors effectively can cause court decisions to be annulled and reexamined by higher courts indefinitely after appeal periods have expired. These powers are an impediment to establishing an independent judiciary. The president is empowered to appoint and dismiss judges and prosecutors with the consent of parliament. Judges at all levels often were poorly trained and had extremely limited access to legal reference materials. Low wages for judges and prosecutors left them vulnerable to bribery, which remained a common practice. Judges were subject to political influence. Trials are public, except in cases involving national security. The authorities have denied access to monitoring organizations to trials without cause. A panel consisting of a presiding judge and two "people's assessors" determines guilt or innocence. Qualifications of the assessors and how they are determined is unclear, but their role is passive, and the presiding judge dominates the proceedings. According to the law, cases should be brought before a judge within 28 days after indictment; however, most cases were delayed for months. Under the law, courts appoint attorneys at public expense; however, in practice authorities often denied arrested persons access to an attorney. Those who were indicted were invariably found guilty. Judges often gave deference to uncorroborated testimony of law enforcement officers, especially members of the [Ministry of Security], and often discounted the absence of physical evidence. According to the law both defendants and attorneys have the right to review all government evidence, confront and question witnesses , and present evidence and testimony. No groups are barred from testifying, and, in principle, all testimony receives equal consideration. The law provides for the right to appeal. The law extends the rights of defendants in trial procedures to all citizens. ... The constitution provides for freedom of religion; however, in practice the government continued to impose restrictions and respect for religious freedom continued to deteriorate. The Council of Ulamo, a committee of Islamic clergy, provides interpretations of religious practice that imams throughout the country are required to follow. While the council is officially an independent religious body, in practice it is heavily influenced by the government. The Department of Religious Affairs (DRA) at the Ministry of Culture is responsible for general regulation of all religious organizations. The DRA, in consultation with local authorities, registers and approves all religious places of worship. For Muslims, the DRA controls all aspects of participation in the hajj, including choosing participants. President Rahmon established a Center for Islamic Studies during the year to guide religious policy. The government continued to impose limitations on personal conduct and to restrict activities of religious groups that it considered "threats to national security." ... Government officials visited mosques on a regular basis to monitor activities, observe those who attended the mosques, and examined audio and video materials for evidence of extremist and antigovernment material. The DRA continued to test imams on their religious knowledge and to ensure they followed official positions on religious issues. ... Government concerns about foreign influence resulted in restrictive measures against minority religious groups. The government continued its ban on HT [Hizb   ut ‑ Tahrir], which it classified as an extremist Islamic political movement, and authorities introduced restrictive measures against another Islamic group, the Salafis. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 76.     The applicant alleged that, if extradited to Tajikistan, he would be subjected to ill-treatment in breach of Article 3 of the Convention. He also claimed that the Russian authorities had failed to assess risks of ill-treatment that he would run in the requesting country. Article 3 of the Convention reads as follows:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     The parties' submissions 1.     The Government 77.     The Government contested the applicant's arguments. 78.     In their submissions, the Tajik authorities had argued that in 1998   ‑   2000 the applicant had participated in an illegal criminal group created in order to violently overthrow the Tajik constitutional regime and, as a member of Hizb ut-Tahrir, had disseminated information aimed at inspiring racial and religious hatred and had recruited new members of the illegal group. 79.     On 14 February 2003 the Russian Supreme Court had proclaimed Hizb ut-Tahrir a terrorist organisation and declared its activities prohibited on the territory of the Russian Federation. 80.     When asked whether he had been persecuted for political reasons during the first interview with the Odintsovo prosecutor's office on 28   November 2007, the applicant had replied in the negative and stated that he had come to Russia to find employment. 81.     On 20 March 2008 the applicant had stated that he had fled Tajikistan because he had been persecuted by the Tajik Ministry of Security but had not furnished any evidence in support of his statement. Instead, he had claimed that his brother had been sentenced to nine years' imprisonment because he had been a Hizb ut-Tahrir member. In the Government's view, the applicant had been bound to be aware of Hizb   ut ‑ Tahrir activities. 82.     The applicant could not be persecuted for his religious practices because Islam was the official religion of Tajikistan. Moreover, none of the numerous religious groups in Tajikistan had been persecuted. 83.     The applicant had not applied for refugee status upon his arrival to Russia or during the following six years. The Moscow FMS had reached the conclusion, upon careful exami