CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 septembre 2010

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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 } .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 ISKANDAROV v. RUSSIA   (Application no. 17185/05)             JUDGMENT       STRASBOURG   23 September 2010   FINAL   21/02/2011   This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Iskandarov v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 2 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 17185/05) 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 Mukhamadruzi (also spelled Mahmadruzi) Iskandarov (“the applicant”), on 6 May 2005. 2.     The applicant was represented by Ms K.A. Moskalenko, 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 30 May 2008 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 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1954 and lives in Dushanbe. A.     The applicant's account of events 1.     Background of the case 5.     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. 6.     During the civil war in Tajikistan, the applicant was one of the leaders of the UTO. 7.     On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. The applicant was appointed as the head of the State Committee for Extraordinary Situations and Civic Defence of Tajikistan. While in office, he was awarded the rank of Major-General. 8.     In 1999 the President of Tajikistan appointed the applicant as the director of the unitary enterprise Tajikkommunservis. 9.     On 13 September 1999 the applicant was elected chairman of the Democratic Party of Tajikistan. 10.     On 4 June 2001 the applicant was appointed as the director of the unitary enterprise Tajikgaz. 11.     At some point the applicant openly criticised the President of Tajikistan. 12.     On 1 December 2004 the applicant moved to Russia. 2.     Charges against the applicant and extradition proceedings 13.     On 25 November 2004 the Tajik Prosecutor General's Office charged the applicant in his absence with terrorism, gangsterism, unlawful possession of firearms and embezzlement. 14.     On 26 November 2004 the Tajik authorities chose placement in custody as a preventive measure to be imposed on the applicant. 15.     On 29 November 2004 the applicant was put on an international “wanted” list. 16.     On 1 December 2004 the Russian Prosecutor General's Office received a request for the applicant's extradition from the Tajik Prosecutor General's Office. 17.     On 9 December 2004 the Russian authorities arrested the applicant on the basis of the request for his extradition. 18.     On an unspecified date the applicant was placed in remand prison no.   IZ-77/4 in Moscow. 19.     On 23 December 2004 the Babushkinskiy District Court of Moscow authorised the applicant's detention pending extradition. 20.     On 24 December 2004 the applicant appealed against the first ‑ instance decision. On an unspecified date the Moscow City Court dismissed the appeal. 21.     On 29 December 2004 and 18 January 2005 the applicant requested the Russian Prosecutor General's Office not to extradite him, arguing that the request for his extradition had been filed for purely political reasons. 22.     In January 2005 the applicant requested the Department for Migration Affairs of the Moscow Department of the Interior to grant him political asylum. 23.     On 1 April 2005 the Russian Prosecutor General's Office dismissed the extradition request by the Tajik authorities for the reason that the applicant had filed an asylum application. 24.     On 4 April 2005 the prosecutor's office of the Babushkinskiy District of Moscow ordered the applicant's release from custody. 3.     The applicant's abduction and transfer to Tajikistan 25.     Upon his release on 4 April 2005 the applicant stayed at his friend's flat in the town of Korolev, in the Moscow Region, awaiting examination of his asylum application. 26.     In the evening of 15 April 2005 the applicant and his friend, Mr L., were walking a dog. At some point the applicant saw two persons wearing uniforms of the Russian State Inspectorate for Road Safety ( «ГИБДД» , “GIBDD”). He assumed that those men intended to arrest him and told his friend to go home. Then the applicant noticed that the area had been surrounded by twenty-five or thirty men with Slavic features wearing civilian clothes. 27.     Without identifying themselves or giving any explanations, the two men in GIBDD uniforms, assisted by several men in civilian clothes, handcuffed the applicant. One of the men hit the applicant on the head and placed him in a car; it drove off. After 400 or 500 metres the car stopped; the men in the GIBDD uniforms took the applicant out and placed him in a minivan. 28.     They drove for a while. Eventually the minivan stopped and the applicant was taken outside. The surroundings were unknown to him. The applicant was escorted to a sauna and detained there. The guards beat the applicant. He asked for a lawyer, but in vain. 29.     On 16 April 2005 the applicant was taken to a forest. The men who had apprehended him met a group of people and conversed with them there. Having listened to them talking, the applicant assumed that the newly arrived people were servicemen of the Russian law-enforcement agencies. 30.     At some point the servicemen put a mask on the applicant's face. They did not identify themselves, nor did they give any explanations of their actions. They spoke unaccented Russian. 31.     Later they took the applicant with them and escorted him to an airport. The applicant's identity papers were not checked. While boarding the plane, the applicant heard the servicemen talking to a woman who apparently knew them. During the flight the applicant, still blindfolded, heard no instructions or other information usually conveyed in a civil aircraft. 32.     On the morning of 17 April 2005 the aircraft landed at Dushanbe Airport and the applicant was handed over to the Tajik law-enforcement agencies. 4.     The applicant's detention in Tajikistan 33.     On 17 April 2005 the applicant was placed in the remand prison of the Tajik Ministry of Security. He was kept in a cell measuring 2.3   x   2   metres. There was an iron bed with dirty bedding. 34.     For the first ten days of his detention the applicant was registered under a false last name, “Sobirov”. During that period officers of the remand prison regularly beat the applicant. He had no food except for two pieces of bread per day and some water. He was allowed to use the lavatory only once a day. The applicant was not permitted to go for a walk or to wash himself. 35.     On the tenth day of the applicant's detention, officers of the Tajik Prosecutor General's Office told him that he would be killed unless he confessed. The applicant made a self-incriminating statement under pressure. He was given some pills, allegedly of a psychotropic nature. 36.     On 25 April 2005 the Tajik Prosecutor General gave a press conference and announced that the applicant had been arrested in Tajikistan on 22 April 2005. 37.     On 30 April 2005 the applicant was allowed to see his lawyers for the first time since his arrest. He explained them that for thirteen days he had been kept incommunicado and had lived on bread and water. The lawyers' visits took place in the presence of the prison officials. Unsupervised visits were not permitted. 38.     On 5 October 2005 the Supreme Court of Tajikistan convicted the applicant and sentenced him to twenty-three years' imprisonment. 39.     On 18 January 2006 the Appeals Board of the Supreme Court of Tajikistan upheld the judgment of 5 October 2005. 5.     Complaints to the Russian authorities 40.     On 2 May 2005 the Presidium of the Democratic Party of Tajikistan requested the President of Russia, the Russian Prosecutor General's Office and the Russian Ombudsman to clarify the circumstances of the applicant's unlawful extradition. 41.     On 3 May 2005 the applicant's relatives requested the Russian Prosecutor General's Office to explain how the applicant had been transferred to Tajikistan. No reply was given. 42.     On 30 May 2005 the applicant's lawyers enquired of the Russian Prosecutor General's Office whether any measures had been taken in relation to the letter of 3 May 2005. 43.     On 14 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office that the applicant's abduction and extradition had been unlawful. 44.     On 22 June 2005 the applicant's lawyers complained to the Tverskoy District Court of Moscow about the inaction of the Russian Prosecutor General's Office. The court left the complaint unexamined. 45.     On 15 June 2005 the applicant's lawyers complained to the Russian Prosecutor General's Office about the allegedly ineffective investigation into the circumstances of the applicant's unlawful extradition. 46.     On 20 June 2005 the Korolev town prosecutor's office refused to institute criminal proceedings in relation to the applicant's kidnapping. 47.     On 6 July 2005 the Korolev town prosecutor's office quashed the decision of 20 June 2005 and instituted an investigation under Article 126 §   2 of the Russian Criminal Code (aggravated kidnapping). 48.     On 8 September 2005 the applicant's representatives lodged a second complaint with the Tverskoy District Court of Moscow. The complaint was dismissed on 28 September 2005. 49.     On 16 September 2005 the applicant's lawyer requested the Korolev town prosecutor's office to demand the Tajik authorities to transfer the applicant to Russia for questioning. On 19 September 2005 the request was dismissed. The applicant's lawyers challenged the prosecutor's decision before the prosecutor's office of the Moscow Region, but to no avail. 50.     The applicant himself requested the Korolev town prosecutor's office to question him as a victim in Russian territory. 51.     On 6 October 2005 the Korolev town prosecutor's office dismissed the applicant's request. The applicant's lawyers challenged the refusal before a court. 52.     On 24 April 2006 the Korolev Town Court dismissed the complaint on the ground that the applicant had not been permitted to join the proceedings as a victim. That decision was quashed. On 25 September 2006 the Moscow Regional Court dismissed the complaint at final instance on the ground that the applicant's rights had not been breached. 53.     On 12 December 2005 the Moscow City Court dismissed at final instance the complaint about the Russian Prosecutor General's inaction. 54.     On 27 March 2006 the Tverskoy District Court of Moscow dismissed at first instance the applicant's complaint about the Russian Prosecutor General's Office's inaction. On 23 May 2006 the Moscow City Court upheld the decision. 55.     On 6 April 2006 the applicant's lawyers challenged in court the investigators' decision. On 25 September 2006 their complaint was dismissed at final instance by the Moscow Regional Court. 6.     The proceedings before the UNHCHR 56.     In November 2004 two Tajik lawyers filed a complaint with the United Nations High Commissioner for Human Rights (UNHCHR) concerning alleged violations of the applicant's rights in the course of the criminal proceedings against him in Tajikistan. 57.     On 20 October 2005 the Working Group on Arbitrary Detention of the Office of the UNHCHR put questions on the applicant's detention to the Tajik Government. 58 .     On 24 November 2005 the Tajik Ministry of Foreign Affairs, in reply to the request by the Office of the UNHCHR, submitted a seventeen ‑ page document in Russian describing the charges against the applicant and the proceedings against him. The document read, in so far as relevant, as follows: “...[i]n accordance with the Minsk Convention, Mr Iskandarov was arrested by the Russian law-enforcement agencies in Moscow in December 2004. In reply to the Russian Prosecutor General's Office's requests, the Tajik Prosecutor General's Office produced the necessary documents concerning Iskandarov's extradition to the Tajik authorities within the time-limits laid down by the Minsk Convention, as well as comprehensive proof of Iskandarov's guilt in respect of the crimes he had been charged with. After that, the Russian Prosecutor General's Office informed the Tajik authorities that a favourable solution would be found to the question of Iskandarov's extradition. It is noteworthy that on 4 April 2005 the Russian law-enforcement agencies released Mr Iskandarov from custody prior to deciding on his extradition but did not officially notify the Tajik Prosecutor General's Office of the grounds and reasons for the release under the Minsk Convention. Mr Iskandarov was officially extradited to the Tajik authorities by the Russian law ‑ enforcement agencies and on 17 April 2005 he was placed in the remand prison of the Tajik Ministry of Security.” 59.     On 29 September 2006 the Office of the UNHCHR forwarded the letter from the Tajik Ministry of Foreign Affairs to the applicant's Tajik counsel and notified her that, in order to consider the applicant's case during its 47th session, its Working Group expected to receive her comments on it. 60.     It appears that the proceedings before the UNHCHR concerning the alleged violations of the applicant's rights in Tajikistan are still pending. B.     The Government's account of events 61.     On 1 December 2004 the Russian Prosecutor General's Office received a petition for the applicant's extradition from the Tajik Prosecutor General's Office. 62.     On 9 December 2004 the applicant was arrested in Moscow. 63.     On 17 December 2004 the Russian Prosecutor General's Office received an official request for the applicant's extradition, citing the charges of terrorism, gangsterism, unlawful possession of arms, embezzlement and unlawful hiring of bodyguards. 64.     On 1 April 2005 the Russian Prosecutor General's Office refused to extradite the applicant on the basis of Article 19 of the Minsk Convention owing to the fact that he had applied for asylum. 65.     On 4 April 2005 the applicant was released from custody. 66.     On 6 July 2005 the Korolev town prosecutor's office instituted criminal proceedings in relation to the applicant's abduction under Article   126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). The case was assigned number 27807. 67.     The investigation established that at about 11 p.m. on 15 April 2005 the applicant had been walking along a street in the vicinity of the house at 14 Sovetskaya Street, Korolev, and had presumably been kidnapped by unidentified persons. 68.     Later it became known that the applicant had been arrested in Dushanbe by the Tajik authorities. 69.     The investigators questioned Mr L. and his son and daughter, as well as police officers who had been on duty on the night of 15 April 2005 in the vicinity of Sovetskaya Street and the applicant's son. 70.     On 8 July 2005 Mr L. stated that the applicant, a friend of his daughter, had been staying in their home since 12 April 2005. On 15 April 2005 Mr L. had gone outside to walk his dog; the applicant had accompanied him to have a cigarette. Mr L., a non-smoker, had walked in the opposite direction to the applicant. At some point he had stumbled upon two men wearing police uniforms and talked to them for some fifteen minutes. Then he had returned home; the applicant was not there. Mr L. and his daughter, Ms L., had searched for the applicant and checked with police stations but in vain. After a while Ms L. had read on the Internet that the applicant had been arrested in Tajikistan. 71.     Ms L. and Mr L.'s son made identical depositions. 72 .     The investigators checked whether the applicant had been taken away by plane from Chkalovskiy Airport. No proof of this hypothesis was found. 73.     On 20 June 2005 the Korolev prosecutor's office granted the applicant victim status in criminal case no. 27807. 74.     On 18 July 2005 the Korolev prosecutor's office, pursuant to Articles 4, 5, 7 and 8 of the Minsk Convention, requested the Tajik Prosecutor General's Office to establish the applicant's whereabouts and to question him about his abduction and transfer from Russia. 75.     On 24 August 2005 the Russian authorities requested the Tajik Prosecutor General's Office to question the applicant and to allow him to study the decision to grant him victim status. On 29 December 2005 Mr   Kh., an investigator of the Tajik Prosecutor General's Office, replied that on several occasions he had visited the applicant in the remand prison of the Tajik Ministry of Security in connection with criminal case no. 27807 but that the applicant had refused to make any statements or to study the decision to grant him victim status. 76.     The investigation did not establish that any officers of the Russian law-enforcement agencies had been involved in the applicant's kidnapping. 77.     On 3 October 2008 the investigation was suspended for failure to identify those responsible. II.     RELEVANT DOMESTIC LAW A.     Constitution of the Russian Federation of 1993 78.     Everyone has the right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2). B.     Code of Criminal Procedure (CCP) 79 .     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). III.     INTERNATIONAL INSTRUMENTS AND OTHER DOCUMENTS A.     Council of Europe 80 .     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.” 81 .     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.” 82.     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) 83 .     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). 84.     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). 85.     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). 86 .     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 the general human-rights situation in Tajikistan issued prior to 15 April 2005 87 .     Amnesty International, in its document “Tajikistan – Impunity; Fear for Safety” describing alleged ill-treatment of three Tajikistani residents and released on 4 November 2004, stated as follows: “Amnesty International receives reports about torture and ill-treatment by police in Tajikistan on a regular basis. Those targeted have included alleged Islamists as well as suspects charged with ordinary crimes. Allegations persisted that in the large majority of cases no thorough and impartial investigations were conducted and the perpetrators enjoyed impunity.” 88 .     The US Department of State 2004 Country Report on Human Rights Practices: Tajikistan, released on 28 February 2005, reads as follows: “The [Tajik] Government's human rights record remained poor; although there were some improvements in a few areas, serious problems remained. ... Security forces tortured, beat, and abused detainees and other persons and were also responsible for threats, extortion, and abuse of civilians. Prison conditions remained harsh and life threatening. A few prisoners died of hunger. Impunity and lengthy pre-trial detention remained problems. Authorities used torture to obtain confessions, which were routinely accepted as evidence in trials without qualification. The law prohibits such practices; however, there were reports that government security officials employed them. Torture occurred during the year, though to a lesser extent than in 2003. Security officials, particularly from the Ministry of Interior (MOI), continued to use systematic beatings to extort confessions, torture, sexual abuse, and electric shock during interrogations. Beatings and mistreatment were also common in pre-trial detention facilities, and the Government took minimal action against those responsible for the abuses Prison conditions remained harsh and life threatening for an estimated 7,000 to 10,000 incarcerated persons. Prisons were generally overcrowded, unsanitary, and disease-ridden. The spread of tuberculosis was a serious problem, and there were reports that a few prisoners died of hunger. ... Arbitrary arrest and detention remained serious problems. The law, which is an amended holdover from the Soviet era, allows for lengthy pre-trial detention, and there are few checks on the power of prosecutors and police to make arrests. Impunity remained a serious problem, and officers who committed abuses were rarely prosecuted. The Government acknowledged that police and security forces were corrupt and that most citizens who were abused chose to remain silent rather than risk retaliation by authorities. ... The Constitution provides for an independent judiciary; however, courts and judges were subject to political pressure from the executive branch and criminal networks, and corruption and inefficiency were problems. There was little official information about criminal court procedures and the number of political prisoners; however, credible international and local sources estimated that approximately 100 former opposition fighters of the United Tajik Opposition remained in prison after the civil war despite two general amnesties in 1998. Controversy over which crimes the amnesties covered delayed resolution of the cases. However, following a government review of the cases, most were determined to be appropriately jailed for grave crimes; others were released. In January, following a partially closed trial, a closed session of the Military Board of the Supreme Court sentenced Shamsiddin Shamsiddinov, a deputy chair of the opposition IRP, to 16 years in prison for organizing an armed group and illegally crossing the border. Both crimes were covered under the 1998 post-war amnesties. While in pre-trial detention, he was allegedly abused and denied access to counsel (see Section 1.c.). The IRP maintained that the trial and sentencing were politically motivated to discredit the party.” 89 .     The Human Rights Watch World Report 2005 – Tajikistan, issued on 12 January 2005, reads as follows: “The human rights situation in Tajikistan is fragile. Despite reforms on paper – including a new election law and a moratorium on capital punishment – the government continues to put pressure on political opposition, independent media, and independent religious groups. The political climate has deteriorated as President Emomali Rakhmonov attempts to consolidate power in advance of 2005 parliamentary and presidential elections. Hizbi Demokrati-Khalkii Tojikston (the People's Democratic Party of Tajikistan), led by President Rakhmonov, dominates political life. Under 1997's power-sharing arrangement, opposition parties are guaranteed 30 percent of top government posts. In January 2004, Rakhmonov replaced senior government officials from other political parties with members of his own party, reducing the other parties' share of top posts to 5 percent. Rakhmonov's opponents are vulnerable to prosecution on politically-motivated charges. In January 2004, the Supreme Court sentenced Shamsuddin Shamsuddinov, deputy chairman of Nahzati Islomi Tojikiston (the Islamic Renaissance Party, IRP) – which participates in the power-sharing government - to sixteen years in prison on charges of polygamy, organizing an armed criminal group during the civil war, and illegally crossing the border. Three other IRP members were given lengthy prison terms for alleged complicity in Shamsuddinov's armed group. Shamsuddinov, who has maintained his innocence since his arrest in May 2003, alleges he was beaten and tortured with electric shocks while awaiting trial.” D.     Reports concerning the applicant's case 90.     The Ambassador of the United States to the Permanent Council of the OSCE delivered on 16 June 2005 a statement on the detention of Mahmadruzi Iskandarov in Dushanbe, which reads as follows: “The United States wishes to express its concern regarding the case of Mahmadruzi Iskandarov, the Chairman of the Democratic Party of Tajikistan, who was involuntarily returned to Dushanbe from Moscow on April 17, and who has been held in detention by Tajikistan's Ministry of Security since that date. We further note that Mr. Iskandarov has been denied regular and unobserved access to his legal counsel, and that his family has been unable to meet with him. The United States calls on the Tajik authorities to permit Mr. Iskandarov access to his legal counsel in accordance with Tajikistan's own laws and with international standards, and to pursue any court process in accordance with international law. Both local and international observers should be allowed to witness those proceedings. Once again, [the United States] urge[s] the Government of Tajikistan to demonstrate its commitment to comply with OSCE principles and with international law. The United States stands ready to provide whatever assistance might be required in helping Tajikistan to meet its obligations in that regard.” 91.     The Human Rights Watch World Report 2006 – Tajikistan, issued on 18 January 2006, reads as follows: “In December 2004, Russian police arrested Mahmudi Iskandarov in Moscow at the request of Tajik authorities. The government had implicated Iskandarov – a vociferous critic of President Rakhmonov, presidential hopeful, and leader of the Tajik Democratic Party – in an attack on two government offices in Tojikobod in August 2004. Russian authorities released him on April 3, 2005, but he disappeared just two days later and eventually turned up in custody in Tajikistan. Iskandarov claimed that he had applied for refugee status after his initial release from Russian custody, but said that Russian police had kidnapped him off the street and transferred him to agents who flew him to Dushanbe. On October 5, 2005, after a trial that lasted more than two months, Iskandarov was found guilty on six counts, including terrorism and illegal possession of weapons. He was sentenced to twenty-three years in prison and fined 1.5 million soms (approximately U.S.$ 470,000).” 92 .     The US Department of State 2005 Country Report on Human Rights Practices: Tajikistan, released on 8 March 2006, reads as follows: “Beatings and mistreatment were also common in pre-trial detention facilities, and the government took minimal action against those responsible for the abuses (see Section 1.d.). Yoribek Ibrohimov 'Shaykh' and Muhammadruzi Iskandarov both stated police beat them and subjected them to electric shocks while they were in custody. The International Committee of the Red Cross (ICRC) monitors were unable to investigate claims of torture against them and their associates and the government did not launch an official investigation. ... Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tajikgaz, was returned to the country in April after his December 2004 detention in Moscow, under circumstances that appeared to be an extrajudicial rendition; Iskandarov was charged with violating eight articles of the criminal code including: banditry, terrorism, illegal possession of weapons, having an unauthorized bodyguard, and embezzlement. At the request of the Tajikistan General Prosecutor's Office, Russian authorities had taken Iskandarov into custody on an international arrest warrant, but found insufficient evidence to extradite him. On April 3, the Russian general prosecutor turned down an extradition request and released Iskandarov. He was subsequently kidnapped by unknown forces and on April 26, the Tajik prosecutor general announced Iskandarov was in pre-trial detention in Dushanbe. Iskandarov was denied immediate access to his family and an attorney (see section 1.e.). Iskandarov reported that he was tortured, injected with drugs, and electrocuted while in detention. He was sentenced to 23 years in prison. He is appealing to the Supreme Court. No date was set for the appeal trial by year's end.” 93.     The Declaration by the Presidency of the Council of the European Union on behalf of the European Union on the case of Mr Iskandarov in Tajikistan, done in Brussels on 22 March 2006 (7656/06 (Presse 86) P 050), reads as follows: “The EU has closely followed the legal proceedings against Mr Mahmadruzi Iskandarov, leader of the opposition Democratic Party of Tajikistan, since his arrest in Moscow in December 2004. The EU has taken note of his conviction and sentence to 23 years in prison on multiple charges by Tajikistan's Supreme Court on 5 October 2005, and the rejection of his appeal by the Collegium on Criminal Cases on 18 January 2006. The EU is particularly concerned about the circumstances of Mr Iskandarov's transfer to and arrest in Tajikistan in April 2005, which remain unclear, and about the treatment Mr Iskandarov received during his pre-trial detention. Concerns were also raised by Mr Iskandarov's defence team about some aspects of the court proceedings themselves, and about the fact that the recent appeal procedure was not open to the press. The EU wishes to receive further information on these matters. The EU asks the Tajik authorities to ensure regular access of Mr Iskandarov's family and lawyers in accordance with Tajik law. The unclear circumstances of Mr Iskandarov's arrest and some aspects of his detention and trial send a mixed message about democratic reform and the respect of Human Rights in Tajikistan with respect to its OSCE and other international commitments.” 94.     The US Department of State 2006 Country Report on Human Rights Practices: Tajikistan, released on 6 March 2007, reads as follows: “There was no official investigation into the 2005 beating and electric shocks police allegedly administered to Yoribek Ibrohimov 'Shaykh' and Muhammadruzi Iskandarov while they were in custody. ... Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in detention following his April 2005 kidnapping and return to the country from Moscow by unknown forces. In October 2005 the Supreme Court sentenced Iskandarov to 23   years in prison as well as other penalties, including restitution of $434,782 (1.5   million somoni) allegedly embezzled from Tojikgaz. While most observers believed allegations of corruption and embezzlement were well-founded, local observers, human rights activists, and the political opposition charged that Iskandarov's arrest, trial, and verdict were politically motivated to intimidate future political challengers. Although Iskandarov was convicted, he remained in a pre-trial detention facility at year's end.” 95.     Amnesty International, in a document entitled “Central Asia: Summary of Human Rights Concerns, January 2006-March 2007”, released on 26 March 2007, described the applicant's situation as follows: “In June 2006, the opposition Democratic Party of Tajikistan (DPT) expressed concern that its leader, Mamadruzi Iskandarov, continued to be held in incommunicado detention in the Ministry of National Security. In 2005, Mamadruzi Iskandarov was abducted from Moscow, Russia, where he lived in exile, after the Russian authorities refused to extradite him to Tajikistan. He was sentenced to 23   years' imprisonment by the Supreme Court in October 2005 on charges of terrorism and corruption, which he denied. He should have been moved to a prison camp shortly after the verdict but this did not happen. Supporters claimed that he was not allowed to receive parcels or newspapers and that visits of relatives and his lawyers had been obstructed. An appeal against his sentence had been turned down in a closed hearing in January 2006. At the beginning of February 2007, Mamadruzi Iskandarov was finally moved to a high security prison camp to serve the remainder of his sentence.” 96 .     The US Department of State 2009 Country Report on Human Rights Practices: Tajikistan, released on 11 March 2010, reads as follows: “... Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in prison following his unlawful extradition from Russia and 2005 conviction for corruption.” THE LAW I.     ESTABLISHMENT OF THE FACTS A.     The parties' submissions 1.     The Government 97.     The Government insisted that the Russian authorities had not been involved in the applicant's kidnapping. The applicant had been released from custody following his detention pending extradition on 4 April 2005 and had never been detained in Russian territory again. 98.     The applicant's allegations that he had been arrested by State agents had been disproved in the course of the domestic investigation into his kidnapping. 99.     The witnesses questioned had not seen exactly how the applicant had been kidnapped. Mr L. had not informed the domestic investigation that the area in the vicinity of his home had been surrounded by twenty-five or thirty men in civilian clothes. The policemen, Mr T. and Mr S., had stated to the investigators that they had not arrested anyone on the night of 15 April 2005 and had not seen any men surrounding the building at 14 Sovetskaya Street. 100.     The applicant had refused to study the decision to grant him victim status and to be questioned as a victim. 101.     The Government commented on the letter from the Tajik Ministry of Foreign Affairs, a copy of which had been submitted by the applicant's representative, that its contents “[had] not correspond[ed] to the facts”. They also argued that the copy submitted was barely legible. They were later provided with other copies but made no further comments on the document. 102.     In sum, the Government asserted that the applicant's kidnapping had not been imputable to the State authorities. 2.     The applicant 103.     The applicant claimed that his allegation of State involvement in his transfer to Tajikistan had been proved by the following. The applicant had arrived in Tajikistan without a passport, which would be impossible unless he had been accompanied by State agents. The Tajik authorities had publicly confirmed that he had been extradited via official channels. Mr L.'s statements before the Russian investigators and the Court had not been contradictory. 104.     The applicant had indeed been unwilling to be questioned by the Tajik investigators in relation to criminal case no. 27807; however, he had requested the Russian investigators to question him in Russian territory. B.     The Court's assessment 105.     Given that the parties are in strong disagreement in their respective accounts of the circumstances of the present case, it is necessary for the Court to establish the facts concerning the applicant's transfer to Tajikistan. 106.     The Court notes at the outset that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000, and Altun v. Turkey , no. 24561/94, § 42, 1 June 2004). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see Mathew v. the Netherlands , no. 24919/03, § 155, ECHR 2005 ‑ IX). 107.     The Court further reiterates that, in assessing evidence, it applies the standard of proof “beyond reasonable doubt”. However, in the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties' submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, with further references, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII). 108.     The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no.   21986/93, § 100, ECHR 2000-VII, and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 179, ECHR 2007 ‑ XII). 109.     Turning to the circumstances of the present case, the Court points out that the applicant provided a generally clear and coherent descri