CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 décembre 2011

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RUSSIA   (Application no. 12106/09)               JUDGMENT     STRASBOURG   20 December 2011   FINAL   04/06/2012     This judgment has become final under Article   44 §   2 (c) of the Convention. It may be subject to editorial revision. In the case of Ergashev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 29 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 12106/09) 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 an Uzbek national, Mr Urinboy Ergashev (“the applicant”), on 3 March 2009. 2.     The applicant was represented by Ms O. Tseytlina, a lawyer practising in St Petersburg, who was assisted by lawyers of the EHRAC/Memorial Human Rights Centre, an NGO with offices in London and 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.     The applicant alleged that his detention by the Russian authorities with a view to his extradition to Uzbekistan, where he faced politically motivated persecution by the local authorities, gave rise to violations of his rights under Article 3, Article 5 and Article 6   §   2 of the Convention. 4.     On 22 June 2010 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Russia, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice. 5.     On 1 September 2010 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1957 and lives in St Petersburg. The circumstances of the case 1.     Information submitted by the applicant (a)     Background information 7.     In 1989 the applicant became a mullah in the mosque of Mamurobod in Uzbekistan. In 1999 he graduated as a qualified Arabic teacher from the Foreign Languages Institute in Andijan, Uzbekistan. From 1999 to 2007 he was not officially employed and provided religious consultations about Islam, as well as teaching Arabic and Koran studies. 8.     In May 2007 the applicant moved to Russia. On 6 June 2007 he was registered as a migrant in St Petersburg. (b)     Proceedings in Uzbekistan 9.     On 8 December 2007 the Andijan Region Investigations Department of the Uzbek Ministry of the Interior charged the applicant in absentia with a number of crimes including membership of an extremist organisation, attempting to overthrow the State’s constitutional order and dissemination of the views of a radical extremist movement. The applicant’s name was put on the wanted list; an arrest warrant was issued against him. 10.     On 25 September 2008 the Prosecutor General’s Office of Uzbekistan forwarded a request for the applicant’s extradition to the Russian Prosecutor General’s Office. 11.     On 23 January 2009 the Prosecutor General’s Office of Uzbekistan informed the Russian Prosecutor General’s Office that it “... guarantee[d] that the prosecution of U. Ergashev [would] be carried out in strict compliance with Uzbek legislation”. 12.     On 2 March 2009 the Andijan Town Court ordered the applicant’s arrest. The decision did not set any time-limits for the applicant’s detention. (c)     Proceedings in Russia (i)     Extradition proceedings 13.     On 1 September 2008 the applicant was arrested in St Petersburg on the basis of a letter from the Uzbek authorities and placed in a detention centre. 14.     On 22 June 2009 the Russian Prosecutor General’s Office issued an extradition order against the applicant. The text of the decision included the following: “... the Andijan Region Investigations Department of the Uzbek Ministry of the Interior is investigating a criminal case against U. Ergashev ... The charges against U. Ergashev state that between 22 May 1999 and 2007, in the Andijan region of Uzbekistan, being an active member of the prohibited religious extremist movement ... with the aim of overthrowing the State’s constitutional order, ... he actively participated in the criminal activities of the supporters of the extremist religious movement ... and publicly called for the overthrow of the constitutional order of the Republic of Uzbekistan by engaging in ‘jihad’ (holy war) and for the creation of an Islamic State ... ... The actions of U. Ergashev are punishable under Russian criminal law and correspond to paragraph 1 of Article 280 (public calls for extremist activities), paragraph 2 of Article 282 (incitement to hatred) and paragraph 2 of Article 282 ‑ 3 (membership of an extremist organisation) of the Russian Criminal Code; the penalties envisaged under those Articles entail deprivation of liberty for more than one year. The limitation period for the above crimes under Russian and Uzbek law has not expired ...” 15.     The applicant appealed against the extradition order to the St   Petersburg City Court (“the City Court”), stating, among other things, that he was being persecuted by the Uzbek authorities for his political and religious beliefs and that if extradited, he would be subjected to ill-treatment in Uzbekistan. 16.     On 14 August 2009 the City Court overruled the extradition order, stating that it had been issued prematurely – that is, before the examination of the applicant’s request for temporary asylum – and ordered the applicant’s release from detention. 17.     The prosecutor’s office appealed against that decision to the Supreme Court of the Russian Federation (“the Supreme Court”). On 30   September 2009 the Supreme Court overruled the decision of 14 August 2009 and remitted the case for a fresh examination. 18.     On 5 May 2010 the City Court again examined the applicant’s complaint and upheld the extradition order, referring, amongst other things, to the guarantees provided by the Uzbek Prosecutor General’s office to the effect that the applicant would not be subjected to ill-treatment in Uzbekistan. The applicant appealed against that decision to the Supreme Court. 19.     On 22 June 2010 the European Court of Human Rights granted a request by the applicant for the application of interim measures under Rule   39 of the Rules of Court entailing the suspension of his extradition to Uzbekistan. 20.     On 7 July 2010 the Supreme Court dismissed the applicant’s appeal and the extradition order became final. (ii)     The applicant’s detention with a view to extradition and his complaints on the matter ()     The first period of the applicant’s detention 21.     On 1 September 2008 the applicant was arrested. On 3 September 2008 the Smolninskiy District Court of St Petersburg (“the Smolninskiy District Court”) authorised the applicant’s detention on the basis of the arrest warrant issued by the Uzbek authorities on 8 December 2007 (see paragraph 12 above). In its decision the court referred to Article 108 of the Code of Criminal Procedure (“the CCP”). No time-limits were set for his detention. 22.     On 17 October 2008 the Smolninskiy District Court further authorised the applicant’s detention with a view to extradition without laying down any relevant time-limits. In its decision the court referred to Articles 108 and 466 of the CCP. 23.     On 29 January 2009 the applicant complained to the Smolninskiy District Court that his detention pending extradition was unlawful. On 2   February 2009 the court allowed his complaint in full and released him. The court’s decision stated, amongst other things, that the applicant’s detention had not been extended by court orders and its length was uncertain, in violation of Article 109 of the CCP and of Article 5 of the Convention. 24.     The prosecutor’s office appealed against that decision. On 12   February 2009 the St Petersburg City Court upheld the decision of 2   February 2009 on appeal and reaffirmed that the applicant’s detention during the above period had been unlawful. ()     The second period of the applicant’s detention 25.     On 3 March 2009 the applicant was arrested again. On 4 March 2009 (in the documents submitted the date was also referred to as 6 March 2009) the Tsentralniy district prosecutor’s office of St Petersburg (“the prosecutor’s office”) requested that the Dzerzhinskiy District Court of St   Petersburg (“the Dzerzhinskiy District Court”) authorise the applicant’s detention with a view to extradition. 26.     On 6 March 2009 the Dzerzhinskiy District Court refused to grant the prosecutor’s request, stating that the applicant had already been detained on the same grounds and that the authorities had failed to prove that he intended to abscond. In spite of the above decision, the applicant was not released from detention as on the same date the prosecutor’s office ordered his detention on the basis of the arrest warrant issued by the Andijan Town Court on 2 March 2009. 27.     On 18 March 2009 (in the documents submitted the date was sometimes given as 10 March 2009) the applicant complained to the Dzerzhinskiy District Court, stating, among other things, that in the absence of an extradition order his detention was unlawful, that he had already been detained with a view to extradition between 1 September 2008 and 2   February 2009 and that his further detention from 3 March 2009 was against the law as it was based on the same grounds. 28.     On 18 March 2009 the Dzerzhinskiy District Court examined the applicant’s complaint under Article 125 of the CCP (complaints against acts and decisions of officials involved in criminal proceedings) and dismissed it, stating that the prosecutor’s detention order of 6 March 2009 was lawful and substantiated as it had been based on the detention order issued by the Andijan Town Court on 2 March 2009. The court did not examine the applicant’s allegation that his continued detention from 3 March 2009 was against the law as it was based on the same grounds as his previous detention between 1 September 2008 and 2 February 2009. 29.     On 8 May 2009 the City Court upheld the decision of 18 March 2009 on appeal. It did not examine the applicant’s allegations concerning the use of the same grounds for his continued detention either. 30.     On 13 May 2009 the applicant again complained to the Dzerzhinskiy District Court, stating that his detention was unlawful and excessively lengthy as the two-month time-limit for the detention had expired and his further detention had not been authorised by the Russian courts. 31.     On 27 May 2009 the Dzerzhinskiy District Court allowed the applicant’s complaint and acknowledged the excessive length of his detention. However, the applicant remained in detention. The applicant appealed against that decision. 32.     On 3 August 2009 the City Court overruled the decision of 27   May 2009 on appeal and remitted the case for a fresh examination. The applicant remained in detention. 33.     On 25 August 2009 the Dzerzhinskiy District Court again allowed the applicant’s complaint of 13 May 2009. The court stated that the applicant’s detention as of 7   May 2009 had been unlawful as it had not been duly extended by the domestic courts. It ordered the applicant’s release from detention even though he had actually been released on 14   August 2009 following the decision of the City Court (see paragraph 16 above). The prosecutor’s office appealed against the decision. On 27 October 2009 the City Court upheld the decision of 25 August 2009 on appeal. ()     Further developments 34.     On 6 September 2010 the applicant was arrested by the National Interpol Bureau in St   Petersburg and the Leningrad Region and taken to the Viborgskiy district department of the interior in St Petersburg (the Viborgskiy ROVD), where he was detained from 11.35 a.m. to 5.30 p.m. before being released on an undertaking to visit the Viborgskiy district prosecutor’s office. 35.     On 8 September 2010 the Viborgskiy district prosecutor’s office placed the applicant under house arrest “pending extradition to Uzbekistan”. (iii)     Conditions of the applicant’s detention and transfer ()     Conditions of the applicant’s detention between 3 and 7 March 2009 36.     At about 10.30 a.m. on 3 March 2009 the applicant was arrested in the building of the Dzerzhinskiy District Court (see paragraph 25 above). He was taken to a police station (78th office of the St Petersburg department of the interior – 78-й отдел милиции ), where he was detained until 1   p.m. on 7 March 2009. 37.     During these four days the applicant was detained in an administrative-detention cell. The conditions of his detention were as follows: the cell, which measured 6   sq.   m, had a tiny window; it did not have ventilation; there was no bed or toilet; the applicant slept on a narrow wooden bench which was designed for seating; no food or drink was given to him throughout the detention; and he was allowed to use the toilet in the adjacent area only with the permission of the police officers. The applicant had to obtain drinking water from the toilet. ()     Conditions of the applicant’s detention between 7 March and 14   August 2009 38.     At about 1 p.m. on 7 March 2009 the applicant was transferred from the police station to remand prison IZ-47/4 in St Petersburg. 39.     Between 7 and 11 March 2009 the applicant was detained in cell no.   82, measuring 18 sq. m, with ten other inmates. There were only eight bunk beds; the applicant therefore had to sleep on the floor. The cell had neither a table nor hot water. No proper bedding was provided for the applicant. His personal space amounted to 1.6 sq. m. The inmates constantly smoked in the cell, which had an adverse effect on the applicant’s health. On 11 March 2009 the applicant was allowed to take his first five-minute shower since his arrest on 3 March 2009. 40.     On 12 March 2009 the applicant was transferred to cell no.   130/2 (tuberculosis cell) as it had been established that he was suffering from tuberculosis. The cell measured about 30 sq. m and had fifteen bunks. Between 12 and 15 March 2009 it held seven inmates; between 16 and 18   March it held eleven inmates; between 19 and 28 March it held twelve inmates; between 5 and 17 May thirteen inmates; on 18 May nine inmates; on 19   May ten inmates; and between 20 and 25 May eleven inmates. Depending on the number of inmates the applicant’s personal space varied from 4.6 to 2.5 sq. m. The table in the cell was a few metres from the toilet; no disinfectant was provided for the latter. The inmates had to do their laundry in the cell using a basin. Irrespective of the gravity of their medical condition and the degree of contagiousness, the inmates were kept together in the same cell. 41.     On 29 March 2009 the applicant was transferred to cell no.   130/3, which measured about 32 sq. m, had fourteen bunks and housed from eight to twelve other inmates. Between 29 and 31 March it held twelve inmates; between 1 and 8 April it held eleven inmates; between 9 and 13 April twelve inmates; between 14 and 19 April nine inmates; between 20 and 28   April ten inmates; on 29 and 30 April twelve inmates; and between 1 and 4 May thirteen inmates. Depending on the number of inmates, the applicant’s personal space varied from 3.6 to 2.5 sq. m. On 5   May 2009 the applicant was transferred back to cell no.   130/2. 42.     On 25 May 2009 the applicant was transferred to cell no. 158, which measured 20.3 sq. m and had twelve bunks. On 25 May it held twelve inmates; on 26 May eleven inmates; on 27 May ten inmates; and between 28   May and 9 June twelve inmates. Depending on the number of inmates the applicant’s personal space varied from 2 to 1.7 sq. m. On 9   June 2009 the applicant was transferred to another cell. 43.     On 10 June 2009 the applicant was placed in cell no. 160, which measured 20.9 sq. m and had eight bunks. Between 9 June and 14   August 2009 the cell held seven or eight inmates. The applicant’s personal space amounted to less than 3 sq. m. In addition, the inmates smoked in the cell, which had an adverse effect on the applicant’s health as the cell was not properly ventilated. 44.     The applicant substantiated his account of the conditions of detention in the remand prison by the following documents: a witness statement by Mr K. Petrov, who was detained with the applicant in cell no.   82, dated 16 February 2011; a witness statement by Mr Z. Elmuratov, who was detained with the applicant in cells no.   130/2 and no.   149, dated 16   February 2011; a witness statement by Ms E. Polyakova, head of a human rights NGO which monitored the conditions of detention in remand prison IZ 47/4, dated 8 February 2011; and a number of photographs of the applicant’s detention cells. ()     Conditions of the applicant’s transfer to the courthouse and conditions of his detention there 45.     On a number of occasions between 4 and 29   March 2009 the applicant was handcuffed and taken to the Dzerzhinskiy District Court in a lorry for transporting detainees (Avtozak). The lorry was equipped with three cages measuring 1.5 m by 3 m; each cage contained ten inmates, who were transported in cramped conditions. 46.     Upon arrival in the courthouse, the applicant was placed for several hours in a cell without windows, measuring 12 sq. m, with a narrow bench and without ventilation. He was usually detained there with two other men. No food or drink was given to him in the courthouse. ()     The applicant’s complaints about the conditions of detention and the lack of medical assistance 47.     On 18 March 2009 the applicant complained to the Dzerzhinskiy District Court, alleging, amongst other things, that the conditions of his detention were inadequate (see paragraph 27 above). 48.     In its decision of 18 March 2009 the Dzerzhinskiy District Court left the applicant’s complaint about the conditions of his detention unexamined. The applicant did not raise the issue of the conditions of his detention on appeal as he considered that an appeal would be ineffective. 49.     From the documents submitted it appears that the applicant neither applied for medical assistance while in remand prison IZ-47/4 nor complained about the lack of such assistance to the prison’s administration. (iv)     The applicant’s requests for refugee status and temporary asylum 50.     On 20 October 2008 the applicant applied to the St Petersburg Department of the Federal Migration Service (“the FMS”) for refugee status in Russia, referring to his politically motivated persecution in Uzbekistan and the risk of ill-treatment. 51.     On 22 December 2008 the FMS rejected the applicant’s request, stating that it had been motivated by an attempt to avoid lawful criminal prosecution in Uzbekistan and that his allegations of a risk of ill-treatment there were unsubstantiated. The applicant was informed of the refusal on 22   January 2009. 52.     On 4 March 2009 (in the documents submitted the date is sometimes given as 4 April 2009) the Dzerzhinskiy District Court upheld the refusal by the FMS. The applicant did not appeal against that decision and the decision of 22 December 2008 became final. 53.     On 8 April 2009 (in the documents submitted the date is sometimes given as 27 April 2009) the applicant applied to the FMS for temporary asylum in Russia. 54.     On 6 May 2009 the FMS rejected the request. The applicant appealed to the Russian FMS against the refusal. 55.     On 6 August 2009 the Russian FMS overruled the decision of 6   May 2009 and referred the applicant’s request back for a fresh examination. 56.     On 11 November 2009 the FMS again rejected the applicant’s request for temporary asylum. The applicant appealed to the Russian FMS. 57.     On 23 February 2010 (in the documents submitted the date is sometimes given as 28 February 2010) the Russian FMS overruled the decision of 11   November 2009 and again referred the applicant’s request back for a fresh examination. 58.     On 30 April 2010 the FMS rejected the applicant’s request for temporary asylum for the third time. 59.     On 24 May 2010 the applicant again appealed against the refusal to the Russian FMS. On 30 August 2010 the Russian FMS overruled the decision of 30 April 2010 and again referred the applicant’s request back for a fresh examination. 60.     On 16 December 2010 the FMS rejected the applicant’s request for temporary asylum for the fourth time. The applicant appealed against the refusal to the Russian FMS. The proceedings appear to be still pending. (v)     TV news broadcasts of 3 March 2009 61.     At 6 p.m. and 11 p.m. on 3 March 2009 the Russian television channel NTV broadcast its regular TV news bulletin in St Petersburg. News reports, quoting the press unit of the Main Department of the Interior of St   Petersburg and the Leningrad Region (the GUVD), displayed full-face and profile photographs of the applicant and contained the following information: Newscaster : “... a terrorist from Uzbekistan, who worked in St Petersburg as a driver of a KAMAZ lorry, was arrested today in the city centre by Interpol officers. The leading member of the Wahhabi extremist religious movement had moved to St   Petersburg two years ago and since then had worked as a driver for various companies. Having graduated from a foreign languages institute, he worked in Uzbekistan as a mullah. The 52-year-old Urinboy Ergashev has been on the authorities’ wanted list for two years; he has been charged with a number of serious crimes, including terrorism ...” Newscaster : “Mr D.R., the deputy head of the National Interpol Bureau in St   Petersburg and the Leningrad Region, commented ...” Mr D.R. : “... having studied the ideas of the political extremist movement ... [the applicant] had created the ‘Khalka’ group to spread the ideas of the Wahhabi movement in order to change the existing State order in Uzbekistan, seize power and remove lawfully elected officials ...” Newscaster : “... the law-enforcement bodies presume that the group headed by Ergashev was planning to create an Islamic State in the Fergana valley; it was financed by foreign organisations from Afghanistan and Pakistan prohibited by the Uzbek authorities. Currently the arrested man ... is in detention and after all the paper formalities he will be extradited to his homeland, where a trial is awaiting him ...” 2.     The Government’s submissions as to the facts (a)     Conditions of the applicant’s detention between 3 and 7 March 2009 in the 78th office of the St Petersburg department of the interior 62.     The applicant was detained in the 78th office of the St   Petersburg department of the interior from 10.30 a.m. on 3 March 2009 until an unspecified time on 7 March 2009. 63.     The applicant was detained in an administrative-detention cell measuring between 3 and 3.2 sq. m, which was not equipped for sleeping, and therefore no bed linen was provided. The applicant was allowed to use the toilet in the adjacent area of the police station with the permission of the police officers. The toilet was equipped with cold water. There were no shower facilities. The applicant’s cell was ventilated twice a day by the police officers. The applicant was not provided with food by the authorities, but the officers allowed his relatives to bring him food and drink. (b)     Conditions of the applicant’s transfer to the courthouse 64.     The applicant was transported from the detention centre to the courthouse on three occasions, on 17 and 18 March and on 27 May 2009, in specially equipped GAZ-3307 and GAZ-32594 vehicles. The vehicles have twenty-six seating places, which are divided between two shared cells and one solitary cell. 65.     On 17 March 2009 the applicant was transported in the same vehicle with twenty-three other detainees; on 18 March 2009 with twelve other detainees; and on 27 May 2009 with ten other detainees. 66.     On each occasion the applicant was provided with a daily ration of food as prescribed by the relevant regulations. (c)     Conditions of the applicant’s detention in remand prison IZ-47/4 in St   Petersburg 67.     From 7 March to 14 August 2009 the applicant was detained in seven different cells; in each cell the number of inmates matched the number of bunk beds, and therefore the applicant had an individual bed. He was provided with bed linen and cutlery. The applicant was detained: -              from 7 to 11 March 2009 in cell no. 82, measuring 18.1 sq. m, with three other inmates (capacity: four inmates); -              from 11 to 30 March 2009 in cell no. 130/2, measuring 32.3 sq. m, with seven other inmates (capacity: eight); -              from 30 March to 5 May 2009 in cell no. 130/3, measuring 32.2   sq.   m, with seven other inmates (capacity: eight); -              from 5 May to 25 May 2009 in cell no. 149, measuring 20.3 sq. m, with four other inmates (capacity: five); -              from 25 May to 9 June 2009 in cell no. 158, measuring 20.3 sq. m, with four other inmates (capacity: five); -              from 9 to 10 June 2009 in cell no. 163, measuring 9.8 sq. m, with one other inmate (capacity: two); -              from 10 June to 14 August 2009 in cell no. 160, measuring 20.9   sq.   m, with four other inmates (capacity: five). 68.     The Government substantiated their account of the amount of personal space afforded to the applicant in the remand prison with poor ‑ quality copies of several pages of a registration log “on transfers of inmates between cells” dated February 2009 to February 2010. The document did not contain any comprehensible information and included tables of numbers; no names or other information about the inmates were provided. The Government also furnished several statements by the remand prison’s staff confirming the number of bunk beds in each of the applicant’s cells. These statements neither provided information as to the actual number of inmates detained in each cell nor specified whether the number of detainees exceeded the cell’s capacity at the given period of time. 69.     According to the Government, the sanitary conditions in each cell complied with the relevant regulations. Medical staff of the remand prison checked the sanitary conditions of all cells on a daily basis and disinfected the cells at prescribed intervals. The ventilation in all cells was in working condition, and each cell was equipped with a cold water basin. On request the inmates could obtain hot water; they were also allowed to use electric kettles. The applicant was allowed a weekly fifteen-minute shower; his bed ‑ linen was changed weekly. The inmates’ laundry was collected for washing once a week; the inmates were also allowed to do their laundry in plastic buckets provided by the administration. 70.     According to the copies of documents enclosed with the Government’s submissions, from 11 March to 25 May 2009 the applicant was detained in the remand prison’s tuberculosis centre to receive medical treatment for the disease. (d)     The applicant’s detention pending extradition 71.     According to the Government, the applicant’s detention on remand was based on Article 466 §§ 1 and 2 of the CCP. 72.     On 3 September 2008 the Smolninskiy District Court authorised the applicant’s detention from 1 September 2008 to 2 February 2009. 73.     On 17 October 2008 the Smolninskiy District Court again authorised the applicant’s detention with a view to extradition. 74.     According to the Government, on 4 March 2009 the Dzerzhinskiy District Court authorised the applicant’s detention. However, from the documents submitted it appears that on 6 March 2009 the District Court actually refused to authorise the applicant’s detention (see paragraph   26 above). 75.     On 6 March 2009 the Tsentralniy district prosecutor’s office of St   Petersburg detained the applicant on the basis of the Andijan Town Court’s detention order of 2 March 2009. (e)     TV news broadcasts of 3 March 2009 76.     In their observations of 17 January 2011 the Government submitted that the text of the TV broadcast had been prepared on the basis of the official statement provided by the National Interpol Bureau in St   Petersburg and the international search warrant issued against the applicant. The broadcast had stated that the applicant had been charged with serious crimes by the Uzbek authorities, but not that he was guilty. The law-enforcement bodies had only suspected that the applicant was pursuing extremist goals. The expression “terrorist from Uzbekistan” had been used by the TV journalists and had not been part of the official information statement issued by the National Interpol Bureau in St   Petersburg. II.     RELEVANT INTERNATIONAL AND DOMESTIC LEGAL MATERIAL A.     Detention pending extradition and judicial review of detention 1.     The Russian Constitution 77.     The Constitution guarantees the right to liberty (Article 22): “1.     Everyone has the right to liberty and personal integrity. 2.     Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 2.     European Convention on Extradition 78.     Article 16 of the European Convention on Extradition of 13   December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1.     In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4.     Provisional arrest may be terminated if, within eighteen days of arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed forty days from the date of that arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 3.     The 1993 Minsk Convention 79.     The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2). 80.     A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest, containing a reference to the detention order and indicating that a request for extradition will follow, must be sent. A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61). 81.     A person arrested under Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1). 4.     The Code of Criminal Procedure 82.     The term “court” is defined by the Code of Criminal Procedure (“the   CCP”) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54). 83.     A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 84.     Chapter 13 of the CCP (“Preventive measures”) governs the use of preventive measures ( меры пресечения ), which include, in particular, placement in custody. 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 by 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 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 may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 85.     Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings (Article 125 § 1). The court must examine the complaint within five days of its receipt. 86.     Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1). Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 87.     An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6). 5.     The Code of Civil Procedure 88.     A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his or her rights or freedoms, hindering the exercise of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles   254   §   1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question (Article   258   §   1). 6.     Case-law of the Constitutional Court (a)     Constitutional Court decision no. 292-O of 15 July 2003 89.     On 15 July 2003 the Constitutional Court issued decision no. 292 ‑ O concerning a complaint by Mr Khudoyorov of ex post facto extension of his “detention during judicial proceedings” by the Vladimir Regional Court decision. It held as follows: “Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may ... once six months has passed since the case was sent to it, extend a defendant’s detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending a defendant’s detention once the previously authorised time ‑ limit has expired, in which event the person is detained for a period without a judicial decision. Nor do other rules of criminal procedure provide for such a possibility. Moreover, Article 10 § 2 and Article 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator ... to immediately release anyone who is unlawfully held in custody beyond the time-limit established in the Code. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention ... which is an integral part of the legal system of the Russian Federation, pursuant to Article   15   §   4 of the Russian Constitution ...” (b)     Constitutional Court decision no. 101-O of 4 April 2006 90.     Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its established 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. 91.     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 laid down in Ch