CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 mai 2010

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margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; 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 } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION             CASE OF KHAYDAROV v. RUSSIA   (Application no. 21055/09)                 JUDGMENT       STRASBOURG   20 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 Khaydarov v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 29 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 21055/09) 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 Mamurdzhon Rakhimdzhonovich Khaydarov (“the applicant”), on 22 April 2009. 2.     The applicant was represented by Ms R. Magomedova and Ms   E.   Ryabinina, lawyers 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 23 April 2009 the President of the First Section decided to apply Rules   39 and 41 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Tajikistan until further notice and granting priority treatment to the application. 4.     On 3 July 2009 the President of the First Section decided 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 1958 and lives in Dushanbe, Tajikistan. He is currently detained in a remand prison in Moscow. A.     Background of the case 1.     Civil war in Tajikistan 6.     In May 1992 a civil war erupted in Tajikistan when ethnic groups under-represented in the ruling elite rose up against the national government of President Nabiyev. Politically, the discontented groups were represented by liberal democratic reformists and Islamists, who fought together and later organised themselves under the banner of the United Tajik Opposition (“UTO”). By June 1997 fifty to one hundred thousand people had been killed. On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. However, in August 1997 fighting again erupted in several regions of Tajikistan, incited by an opposition group. Government forces retaliated and drove the armed faction of the opposition group to seek sanctuary in Uzbekistan. 2.     The applicant's account of the events of August 1997 7.     The applicant, an ethnic Uzbek, lived in the village of Tajikistan in the Shakhrinavskiy District of Tajikistan. The village was mainly populated by ethnic Uzbeks. In the late 1990s large-scale persecution of ethnic Uzbeks commenced in Tajikistan. There were several armed attacks on the applicant's village; some of his acquaintances were killed. 8.     The local administration of the applicant's village decided to create a number of checkpoints on the way to the village to protect the inhabitants and provided those who manned those checkpoints with firearms. The applicant himself was not given any firearms. 9.     In August 1997 the village was attacked once again; after that, several members of the local militia and the applicant fled to Uzbekistan. 3.     Subsequent events 10.     In February 1998 the applicant moved to Russia. 11.     On several occasions the applicant travelled from Russia to Tajikistan. He obtained internal Tajik identity papers and a foreign passport in 2002 and 2004 respectively. His last visit to Tajikistan took place in September 2005. 12.     On 6 February 2001 the Tajik Prosecutor General's Office instituted criminal proceedings against Mr M., a fellow villager of the applicant who had participated in the militia and fled to Uzbekistan in August 1997, charging him with banditry and organisation of an illegal armed group. The applicant was listed as one of the members of the group. B.     Criminal proceedings against the applicant 13.     On 16 January 2006 the Tajik Prosecutor General's Office decided to bring charges against the applicant, stating that in August 1997 he had been a member of Mr M.'s illegal armed group and that such actions constituted an act of banditry punishable under Article 74 of the Tajik Criminal Code. It was also decided that the applicant should be put on a wanted list. 14.     On 17 February 2006 the Tajik Prosecutor General's Office decided, in the absence of the applicant, to place him in custody. 15.     On 15 April 2006 the applicant was put on an international wanted list. 16.     On 19 July 2006 the investigation in the applicant's case was suspended as the applicant was at large. 17 .     On 13 March 2008 the Tajik Prosecutor General's Office severed the applicant's case from Mr M.'s criminal case. The decision read, in so far as relevant, as follows: “At the beginning of August 1997 [Mr M.], taking advantage of the unstable situation in Tajikistan, created an illegal armed group to attack legal entities and private individuals; the group was active until the end of August 1997. ... At the beginning of August 1997 Mr Khaydarov was a voluntary member of the illegal armed group and participated in armed hostilities. On 9 and 10 August 1997, after officers of law-enforcement agencies had entered the territory of the Shakhrinavskiy District, Mr M.'s armed group fled the district territory and left Tajikistan.” C.     Extradition proceedings 18.     On 18 April 2008 the Tajik Prosecutor General's Office sent a request for the applicant's extradition to the Russian Prosecutor General's Office, stating that in August 1997 the applicant had been a member of Mr   M.'s illegal armed group. 19.     On 24 April 2008 the Russian Prosecutor General's Office received a request by the Tajik Prosecutor General's Office to extradite the applicant. 20.     On 13 June 2008 the Tajik Prosecutor General's Office sent the Russian Prosecutor General's Office additional documents stating that the applicant had participated in Mr M.'s group which had fought the government troops, and that he had borne arms and had manned the checkpoint in the village of Tajikistan. 21 .     On 20 November 2008 the Russian Prosecutor General's Office ordered the applicant's extradition to Tajikistan. The decision read, inter alia , as follows:   “The actions of [Mr] M. Khaydarov are punishable under the Russian criminal law and correspond to Article 209 § 2 of the Russian Criminal Code (participation in a gang), which provides for a sanction in a form of imprisonment for more than one year. ... No [legal] impediments to [Mr] M. Khaydarov's extradition under treaties and Russian laws have been established.” 22.     On 3 December 2008 the applicant was notified of the extradition order of 20 November 2008. 23.     The applicant and his counsel lodged appeals against the decision of 20 November 2008 on 4 and 5 December 2008 respectively. In his appeal the applicant alleged that he was being persecuted in Tajikistan for political reasons related to the civil war. 24.     On 23 December 2008 the Moscow City Court, at the applicant's counsel's request, included in the case file reports by international NGOs on the political climate in Tajikistan and postponed the examination of the appeals because the applicant's appeal against the refusal to grant his asylum request had not yet been examined. 25.     On 21 January 2009 the Moscow City Court again postponed the hearing pending examination of the appeal against the refusal to grant the applicant asylum and requested additional documents from the Russian Prosecutor General's Office concerning the charges brought against the applicant in Tajikistan. 26.     On 4 February 2009 the Moscow City Court sent requests for information to the Russian and Tajik Ministries of Foreign Affairs concerning the applicant's allegations of a risk of ill-treatment, as well as to the Russian Prosecutor General's Office concerning the possibility of amnesty being granted to the applicant in Tajikistan, and postponed a hearing on the appeal against the extradition order pending the completion of the asylum proceedings. 27.     On 17 February 2009 the Russian Prosecutor General's Office informed the City Court that the applicant could not benefit from acts of amnesty in Tajikistan. 28.     On 26 February and 12 March 2009 the Moscow City Court again sent requests for information concerning the applicant's allegations of a risk of ill-treatment to the Russian and Tajik Ministries of Foreign Affairs. 29.     On 27 February 2009 the Moscow City Court again postponed a hearing. 30.     On 24 March 2009 the Russian Ministry of Foreign Affairs informed the Moscow City Court that it had no information concerning any political motives for the applicant's prosecution and noted that Tajikistan had ratified nearly every major international human-rights instrument, including the International Covenant on Civil and Political Rights (ICCPR) and the United Nations (UN) Convention against Torture. 31.     On 1 April 2009 the Moscow City Court questioned Ms Ryabinina, a member of the Expert Council for the Russian Ombudsman, who stated that torture and ill-treatment were frequently practised in Tajikistan. 32.     On the same day the Moscow City Court dismissed at first instance the appeals lodged by the applicant and his counsel against the extradition order of 20 November 2008. The court reasoned, in particular, that the applicant had voluntarily left Tajikistan in 1997 and had been able to freely enter the country since then, that the Tajik Prosecutor General's Office had guaranteed that the applicant had not been prosecuted for political or religious reasons, and that Tajikistan had ratified nearly every major international human-rights instrument. The applicant's allegation that he had been prosecuted in relation to the civil war remained unanswered. 33.     On 6 April 2009 the applicant's counsel appealed against the Moscow City Court's judgment. 34 .     On 10 April 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office of the following: “The criminal proceedings against [Mr] Khaydarov are not inspired by any political motives and the Tajik Prosecutor General's Office guarantees that [Mr] Khaydarov will be prosecuted only in respect of the act he was charged with; he will be able to freely leave the territory of Tajikistan after completion of the court proceedings and having served any sentence; he will not be extradited to a third State without the Russian authorities' consent and will not be persecuted on political and religious grounds.” 35 .     On 14 May 2009 the Supreme Court of Russia (“the Supreme Court”) quashed the judgment of 1 April 2009 because the Moscow City Court had failed to thoroughly examine the applicant's counsel's claim that the crime that the applicant had been charged with was of a political nature. Moreover, the Supreme Court stated that the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) had confirmed that the applicant's fears of political persecution had been well-founded. The case file was returned to the Moscow City Court for a fresh examination. 36 .     On 26 May 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office that Tajikistan had ratified the UN   Convention against Torture. 37 .     On 3 June 2009 the Moscow City Court re-examined the appeals against the extradition order and upheld it. It reasoned that the applicant was a Tajikistani national, held no refugee status and, according to the Tajik Prosecutor General's Office, had not been prosecuted for political or religious reasons. The court also pointed out that the applicant had applied for temporary asylum only on 6 April 2009 and concluded that his application could not impede the examination of the appeals against the extradition order. It further referred to the guarantees of 10 April and 26   May 2009 provided by the Tajik Prosecutor General's Office that the applicant would not be persecuted on political and religious grounds and dismissed the report by Ms   Ryabinina as unsubstantiated, arguing that the assurances in question sufficed to exclude the risk of ill-treatment in the applicant's case. The applicant's allegations that the criminal proceedings against him had been linked to the events surrounding the civil war remained unanswered. 38 .     On 30 July 2009 the Supreme Court upheld the Moscow City Court's decision of 3 June 2009. It reasoned that Tajikistan had ratified the UN Convention against Torture and referred to the guarantees given by the Tajik Prosecutor General's Office. On the same date the extradition order became final. D.     Asylum proceedings 39.     On 17 June 2008 the applicant applied to the Moscow Office of the Federal Migration Service (“the Moscow FMS”) for asylum, claiming that the Tajik authorities had persecuted him on the ground of his ethnic origin. 40.     On 6 October 2008 the asylum request was dismissed; on 1   November 2008 the applicant was notified accordingly. 41.     On 28 January 2009 the Zamoskvoretskiy District Court of Moscow dismissed an appeal by the applicant against the decision by the Moscow FMS. 42.     On 26 March 2009 the Moscow City Court upheld the judgment of 28 January 2009 on appeal. 43.     On 6 May 2009 the UN High Commissioner for Refugees declared the applicant a person requiring international protection. 44.     On 22 September 2009 the Moscow FMS rejected the applicant's request for temporary asylum and notified him accordingly on 5 October 2009. 45.     The applicant appealed against the refusal of 22 September 2009 to the Federal Migration Service of Russia (“the Russian FMS”). 46 .     On 13 November 2009 the Russian Office of the UNHCR sent the Russian FMS a report in support of the applicant's request for temporary asylum, stating that he ran a real risk of being ill-treated in Tajikistan. The report read, in particular, as follows: “Mr Khaydarov's allegations [of a risk of ill-treatment] are supported by numerous documents concerning the events of 1997-98 in Tajikistan. ... [E]thnic Uzbeks were subjected to oppression and persecution; in particular, there were reports of numerous killings of civilians before and during the armed conflict in August 1997, which led to a mass exodus of ethnic Uzbeks from northern areas of Tajikistan, in particular to Uzbekistan. Having examined Mr Khaydarov's application and having assessed his fears regarding his return to [Tajikistan], the UNHCR has established that Mr Khaydarov's application and his fears of being subjected to persecution, on the grounds of political convictions attributed to him, in the form of arrest, torture with a view to obtaining a self-incriminating deposition, unlawful and unfair trial and lengthy imprisonment for acts that he had not committed are well-founded. ... There are strong reasons to believe that the criminal proceedings against the applicant instituted by the Tajik authorities amount to persecution on the grounds of political views attributed to the applicant, since [the Tajik authorities] associate the applicant with anti-governmental activities because he had been a member of militia groups suspected of involvement in the armed conflict of August 1997. ... The UNHCR considers that there are serious concerns that Mr Khaydarov will be subjected to torture and other violations of basic human rights, which mean that there is an even greater risk of his being persecuted on the grounds of political views attributed to him. ...[Mr Khaydarov's] case corresponds to the definition of a 'refugee' within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees and the Russian Refugees Act. ... Mr Khaydarov is charged with ... banditry. However, it is noteworthy that the criminal case in which Mr Khaydarov is charged was opened in 2001 and the preliminary investigation concerning Mr Khaydarov was suspended in 2006, which shows that during such a lengthy period of investigation no proof of his guilt had been found and that the requesting State has no such proof. The Tajik authorities have not provided a single piece of factual evidence of Mr   Khaydarov's criminal activity in his country of origin, and the documents provided by the Tajik counterparty as a basis for extradition are contradictory. ... [t]he UNHCR concludes that there is no reliable evidence of the fact that Mr   Khaydarov committed criminal acts, such as banditry, while in Tajik territory.” E.     The applicant's detention 47.     On 17 April 2008 the applicant was arrested in Moscow as a person wanted by the Tajik authorities. Upon his arrest the applicant learned for the first time that there had been criminal proceedings against him. On the same date the Tajik Ministry of the Interior requested the Russian police to keep the applicant in custody pursuant to the Minsk Convention. 48.     The applicant was then placed in remand prison IZ-77/4 in Moscow. 49 .     On 19 April 2008 the Taganskiy District Court of Moscow ordered the applicant's placement in custody pending extradition pursuant to Articles 97, 99 and 108 and Article 466 § 1 of the Russian Code of Criminal Procedure (CCP). The court stated that on 19 July 2006 the applicant had been put on a wanted list and that he had no permanent place of residence in Russia and concluded that, if not in custody, he could escape and impede his extradition to Tajikistan. The term of the detention was not specified. 50 .     On 18 June 2008 the Taganskiy District Court again ordered the applicant's placement in custody pursuant to Articles 108 and 466 of the CCP for an unspecified period of time. The court reasoned that less severe preventive measures could not be applied because the applicant had been at large since 1996, was a Tajikistani national, had no registered place of residence in Russia and was charged with a crime that was punishable by imprisonment for more than two years. 51.     On 6 October 2008 the applicant's counsel applied to the governor of remand prison IZ-77/4 for the applicant's release, claiming that the maximum detention period permitted by domestic law had expired. On 16   October 2008 the governor of the remand prison replied that the applicant had not appealed against the decision of 18 June 2008 authorising his detention and that the question of his release should be decided upon by the Russian Prosecutor General's Office. 52.     On 1 December 2008 the applicant's counsel complained to the Babushkinskiy District Court of Moscow that the applicant's detention was unlawful. 53.     On 10 December 2008 the Babushkinskiy District Court informed the applicant's counsel that it had no jurisdiction to examine the complaint. 54.     On 23 January 2009 the applicant's counsel complained to the Tverskoy District Court of Moscow, under Article 125 of the CCP, that the Russian Prosecutor General's Office had unlawfully failed to apply for an extension of the term of the applicant's detention as required by Article 109 of the CCP. On 27 January 2009 the President of the Tverskoy District Court returned the complaint for elimination of discrepancies. 55.     On 4 May 2009 the applicant's counsel lodged another complaint under Article 125 of the CCP with the Zamoskvoretskiy District Court of Moscow, alleging inaction on the part of the Russian Prosecutor General's Office. 56 .     On 7 May 2009 the Zamoskvoretskiy District Court refused to examine the applicant's complaint of 4 May 2009 for the reason that its subject matter did not fall within the ambit of Article 125 of the CCP. 57 .     On 14 May 2009 the Supreme Court ruled that the preventive measure applied to the applicant should remain unvaried until 4 June 2009. 58 .     On 3 June 2009 the Moscow City Court ruled that the preventive measure applied to the applicant should remain unvaried. 59.     On 27 July 2009 the Moscow City Court quashed the decision of the Zamoskvoretskiy District Court of 7 May 2009 and remitted the matter to the first-instance court for a fresh examination. 60 .     On 4 September 2009 the Zamoskvoretskiy District Court again dismissed the applicant's complaint, arguing that Article 125 of the CCP was inapplicable since there had been no criminal proceedings pending against the applicant in Russia. It reasoned as follows: “The [applicant's] requests to declare unlawful the inaction of the Moscow prosecutor's office on account of its failure to perform its function of supervising compliance with the law in custodial institutions could not be examined under Article   125 of the CCP because the prosecutors' supervision of the custodial system is not related to the criminal proceedings against [Mr] Khaydarov. Acts and inaction of agents of the prosecutor's office can be challenged by way of another procedure which is not provided for in Article 125 of the CCP. The request for extension of the term of custodial detention is an exclusive right of the competent bodies and a court is not entitled to impel [those bodies] to bring such requests.” 61.     On 11 September 2009 the applicant's counsel appealed against the decision of 4 September 2009. 62.     On 14 September 2009 the applicant's counsel complained to the Taganskiy District Court that the applicant's detention was unlawful. Referring to Article 5 § 4 of the Convention, she argued that Article 109 of the CCP had been breached in the applicant's case as his term of detention had not been extended and that there had been no judicial review of the lawfulness of the detention. 63.     On 16 September 2009 a judge of the Taganskiy District Court sent the applicant's counsel a letter explaining that it was open to the applicant to appeal against the decision on choosing the preventive measure and that there were no other avenues of complaining of the alleged unlawfulness of detention. 64.     On 5 October 2009 the applicant's counsel appealed against the refusal to examine her complaint. On 13 October 2009 the judge of the Taganskiy District Court sent her a letter explaining that the previous letter could not be appealed against. 65.     On 26 October 2009 the Moscow City Court dismissed the appeal against the decision of 4 September 2009. 66.     On 8 December 2009 the applicant's counsel requested the Russian Prosecutor General's Office to release the applicant. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Code of Criminal Procedure (CCP) 67 .     Chapter 13 of the CCP governs the application of preventive measures. Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond, continue to be engaged in criminal activities, threaten witnesses or impede the investigation (Article 97). When deciding on the necessity to apply a preventive measure, it is necessary to take into account the gravity of the charges and the various personal details of the person concerned (Article 99). 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 further to a request lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (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). 68 .     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. 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). 69 .     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 preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). B.     Decisions of the Constitutional Court of Russia 1.     Decision no. 101-O of 4 April 2006 70.     Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect 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. 71.     In the Constitutional Court's view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the CCP. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. 72.     The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution 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 in the Code. 2.     Decision no. 333-O-P of 1 March 2007 73.     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. 3.     Decision no. 158-O of 11 July 2006 on the Prosecutor General's request for clarification 74.     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. 75.     The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction. 4.     Decision no. 333-O of 1 March 2007 76 .     The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified. 77 .     The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours, on the basis of a request for his or her extradition, without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code. III.     INTERNATIONAL INSTRUMENTS AND OTHER DOCUMENTS A.     Council of Europe 78 .     Recommendation No.   R (98) 13 of the Council of Europe Committee of Ministers to Member States on the right 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.” 79 .     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.” 80.     For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France , no. 25389/05, §§   36-38, ECHR 2007 ‑ V. B.       The 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the Minsk Convention) 81 .     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). 82.     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). 83.     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). 84 .     A 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 85 .     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.” 86 .     Minority Rights Group International in its document “Tajikistan: Overview”, updated in January 2008, describes the situation of the Uzbek minority in Tajikistan as follows: “The situation in Tajikistan is similar in many respects to that of its neighbours. ... Since independence, Tajiks have attempted to assert their dominance by linguistic and other preferences that tend to discriminate against and exclude minorities, often leading to resentment or even an exodus. While they were close to a quarter of the population at the time of independence, many Uzbeks fled during the period of the civil war. They remain the largest minority at over 15 percent of the population according to a 2000 census, and are concentrated in areas usually associated with opposition to the government. This has led to a general distrust of Uzbeks, and in turn discriminatory treatment towards them in many institutions of the state. Once again, oppressive measures have been presented as necessary in the name of the fight against 'terror' and 'separatism'. The degree of under-representation of minorities in public life is startling: only two members of Parliament are Uzbeks, despite this minority's very substantial numbers. ... Despite constitutional provisions that initially appear to guarantee the use of minority languages, and despite the large percentage of minorities in the country, in particular Uzbeks, minorities are largely excluded from employment in public service.” 87 .     The World Report Chapter: Tajikistan by Human Rights Watch, released in January 2009, describes the human-rights situation in the country as follows: “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 ).”   88 .     The 2009 US Department of State Country Report on Human Rights Practices, released on 11 March 2010, provides the following information in relation to Tajikistan:   “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; impunity of security forces; denial of right to fair trial; harsh and life-threatening prison conditions; prohibition of international monitor access to prisons; ... The law prohibits [cruel, inhumane or degrading treatment or punishment], but some security officials used beatings or other forms of coercion to extract confessions during interrogations, although the practice was not systematic. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture. ... The Ministry of Justice (MOJ) continued to deny 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 MOJ personnel accompanied them. The government did not sign an agreement with the International Committee of the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centres, and the ICRC's international monitoring staff has not returned to the country since 2007. Detainees and inmates described harsh and life-threatening prison conditions, including extreme overcrowding and unsanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons. Organizations such as the UN Human Rights Council reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor. ... Victims of police abuse may submit a formal complaint in writing to the officer's superior or the Office of the Ombudsman. Most victims chose to remain silent rather than risking retaliation by the authorities. ... Trials are public, except in cases involving national security. There is a presumption of innocence by law, but in practice defendants were presumed guilty. ... In national security cases, a panel consisting of a presiding judge and two 'people's assessors' determines the guilt or innocence of the accused. Qualifications of the assessors and how those qualifications are determined are not known, but their role is passive, and the presiding judge dominates the proceedings. ... Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests. Opposition parties and local observers claimed the government selectively prosecuted political opponents. There was no reliable estimate of the number of political prisoners, but former opposition leaders claimed there were several hundred such prisoners held in the country, including former fighters of the UTO.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 89.     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 t