CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 juin 2012

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RUSSIA   (Application no. 55822/10)               JUDGMENT     STRASBOURG   5 June 2012     FINAL   22/10/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shakurov v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 15 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 55822/10) 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 Askhat Askhatovich Shakurov (“the applicant”), on 19   July   2010. 2.     The applicant was represented by Ms   Y.   Ryabinina and Ms   N.   Yermolayeva, 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 12 October 2010 the President of the First Section, acting upon the applicant’s request of 11 October 2010, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Uzbekistan until further notice and granting priority treatment to the application. 4.     On 4 January 2011 the application was communicated 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 5.     The applicant was born in 1972 and lives in Yasnogorsk, the Tula Region (Russia). A.     The applicant’s arrival in Russia 6 .     In March 2002 the applicant, an officer in the Uzbek Armed Forces, left his military unit in Uzbekistan and went to Russia for employment-related reasons. He settled in the town of Yasnogorsk, in the Tula Region, some thirty kilometres to the north of Tula. Two years later his spouse and their two children, born in 1994 and 2000, moved over from Uzbekistan and subsequently obtained Russian citizenship. In 2007 the applicant’s spouse bought a house in Yasnogorsk. 7.     Until 2007, for unspecified reasons, the applicant lived separately from his spouse and children. 8.     On 30 July 2009 the Uzbek Ministry of Health recommended, at the applicant’s spouse’s request, that their elder daughter be admitted to a neurological hospital in Moscow in order to treat her neurological condition. The certificate stated that the child should be accompanied by her mother. 9.     The applicant did not apply for Russian citizenship, as he explained, because he had lost his Uzbek national passport in 2002. Neither did he make any attempts to regularise his stay in Russia or to register his residence in the country between 2002 and 2010. B.     Criminal proceedings against the applicant in Uzbekistan 10.     In the meantime, on 24 June 2002 the Uzbek authorities instituted criminal proceedings against the applicant under Article 287-3 of the Uzbek Criminal Code (“the UCC”) for desertion. The offence was punishable by up to five years’ imprisonment. 11 .     On 29 July 2002 the military prosecutor’s office of the Tashkent Command (“the military prosecutor’s office”) issued a bill of indictment and an arrest warrant against the applicant. On the same day the military prosecutor’s office suspended the investigation on account of the failure to establish the applicant’s whereabouts and put his name on a wanted list. 12.     On 6 September 2002 the military prosecutor’s office issued a search warrant for the applicant. 13.     On 9 November 2009 the military prosecutor’s office re-classified the charges against the applicant as aggravated desertion, punishable by five to ten years’ imprisonment, and charged him in absentia under Article 228-2 of the UCC. C.     Proceedings against the applicant in Russia 1.     Criminal proceedings and the applicant’s detention   14.     On 27 October 2009 the Yasnogorsk District Department of the Interior (“the ROVD”) brought criminal proceedings against the applicant on suspicion of having threatened his spouse with death (Article 119-1 of the Russian Criminal Code, “the RCC”). On the same day the applicant was arrested and placed in remand centre no. 71/1. 15 .     On 29 October 2009 the Yasnogorsk District Court of the Tula Region (“the district court”) authorised the applicant’s detention at the request of the ROVD. The Yasnogorsk District Prosecutor’s Office (“the district prosecutor’s office”) backed up the request, referring, in particular, to the fact that the applicant was wanted for a crime committed in Uzbekistan. The district court ordered the applicant’s detention on the basis of Articles 99, 100 and 108 of the Russian Code of Criminal Procedure (“the CCrP”), stating as follows: “It can be seen from materials submitted to the Court that Mr Shakurov is suspected of a minor criminal offence carrying a penalty of up to two years’ imprisonment. He is unemployed, that he has no permanent income, and has not registered his residence in Russia. Therefore, the court agrees with the investigator that there are grounds to believe that, if at large, he, understanding the nature of the penalty he could face, may flee investigation and prosecution, continue criminal activities and put pressure on the victim and witnesses so that they alter their testimony, thus hindering the criminal proceedings”. The applicant did not appeal. 16.     On 16 December 2009 the district court extended the applicant’s detention to 16 January 2010 on similar grounds, with reference to Articles   108 § 3 and 109 §§ 1 and 2 of the CCrP. The applicant did not exercise his right of appeal. 17.     On 11 January 2010 the Justice of the Peace of the Yasnogorsk District discontinued the criminal proceedings against the applicant because of reconciliation between the parties, and ordered his immediate release. It is unclear whether the applicant was indeed released. On the same day he was placed in custody with a view to extradition (see paragraph 37 below). 2.     Extradition proceedings 18.     In the meantime, on 27 October 2009 the ROVD received information concerning the criminal proceedings initiated against the applicant in Uzbekistan from their Uzbek counterparts. 19 .     On 4 November 2009 the district prosecutor interviewed the applicant. As can be seen from the questioning record, signed by the applicant, the applicant explained that he had left Uzbekistan in March 2002 as he had faced workplace discrimination “on account of his origins” from his commanding officers, who had refused to consider his resignation requests. He had arrived in Russia with a view to obtaining Russian citizenship and getting employment. He had applied neither for Russian citizenship, as he had lost his Uzbek passport, nor for political asylum or refugee status, as he had not been subjected to persecution on political grounds in Uzbekistan. He considered himself a Russian citizen. The applicant understood that the Uzbek authorities wanted him for military desertion. The prosecutor concluded as follows: “Presently, Mr Shakurov’s extradition to the law-enforcement authorities of Uzbekistan is precluded by the criminal proceedings brought under Article 119 § 1 of the RCC, which are pending against him in Russia”. 20.     On 5 November 2009 at an interview with a deputy district prosecutor the applicant added that he had left the military service also because of the very low wages and discrimination from his senior colleagues due to his poor command of Uzbek. Discrimination on that ground had been very common at his workplace. Thus, the commanding officers had “fabricated” criminal cases against fifteen servicemen. The applicant feared that he would be tortured by Uzbekistan security forces in the event of extradition, since it was common practice. He intended to submit an asylum request as he feared persecution on the grounds of his nationality and language skills. He considered that the criminal proceedings pending against him in Russia and the fact that his spouse and children lived in Russia and were Russian citizens were obstacles to his extradition to Uzbekistan. 21.     On 6 November 2009 the prosecutor’s office of the Tula Region (“the regional prosecutor’s office”) forwarded the extradition material to the International Legal Cooperation Unit of the Prosecutor General’s Office, stating as follows: “The measure of restraint with a view to ensuring Mr Shakurov’s possible extradition has not been applied to him because it is not necessary.” 22 .     On 23 or 25 November 2009 the Prosecutor General’s Office received a request for the applicant’s extradition from its Uzbekistan counterpart, dated 13   November 2009. The request was reasoned by the charges brought against the applicant under Article 288-2 of the UCC. Relying on Article 66 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”), the Uzbek authority assured its Russian counterpart that the applicant would not be extradited to a third country without the consent of the Russian Federation, that no criminal proceedings would be initiated and he would not be tried or punished for an offence which was not the subject of the extradition request and he would be able to freely leave Uzbekistan once the court proceedings had terminated and the punishment served. 23.     On 30 November 2009 the Russian Prosecutor General’s Office asked the Prosecutor General’s Office of Uzbekistan to provide diplomatic assurances and conduct a check as to the applicant’s allegations of workplace discrimination and torture in the event of his extradition to Uzbekistan. 24.     On 7 December 2009 the Russian Federal Migration Service (“the FMS”) stated that the applicant had neither applied to register his residence in the Tula Region nor to obtain migrant status or Russian citizenship. 25.     On 10 December 2009 the Federal Security Service (“the FSB”) wrote to the regional prosecutor’s office stating that it saw no obstacles to the applicant’s extradition. 26.     On 15 December 2009 a district military prosecutor of the Tashkent Command of Uzbekistan issued a statement in connection with the criminal proceedings pending against the applicant in Uzbekistan, which read as follows: “Following Mr Shakurov’s statement at the interview of 4 November 2009 [...], military prosecutors of the Tashkent command questioned the former commanding officer Mr S., the head of the human resources Mr K. and [some other] officers. They clarified that the unit servicemen had mainly spoken Russian. Servicemen who had not mastered Uzbek had not been subjected to discrimination. Mr Shakurov had spoken good Russian and Uzbek. During the period of his service, he had submitted only one request, dated 25 August 2000, whereby he had asked to extend his term of office until 24 November 2003. That request had been granted.” 27.     On 21 December 2009 the Uzbek Prosecutor General’s Office assured its Russian counterpart that the criminal proceedings against the applicant had been conducted without discrimination on account of his ethnic origin, religion, language or social status and that, if extradited, the applicant would not be subjected to ill-treatment and his right to defend himself, including through legal assistance, would be secured. The criminal proceedings would be carried out in strict compliance with the Uzbek Code of Criminal Procedure and international treaties. 28.     On 11 January 2010 the Yasnogorsk District Court ordered the applicant’s placement in custody with a view to extradition (see paragraph 37 below). 29.     On 19 January and 3 February 2010 the Ministry of the Interior and the FSB informed the Prosecutor General’s Office that there were no obstacles to the applicant’s extradition to Uzbekistan. 30.     On 24 June 2010 the Deputy Prosecutor General granted the extradition request. The prosecutor decided to extradite the applicant under charges of desertion, a crime punishable under Article 338-1 of the RCC. He noted that the statute of limitations for the offence had not expired either in Russia or in Uzbekistan. He further pointed out that, in line with the Minsk Convention and the CCrP, differences in the classification of the offence and its elements under the Russian and the Uzbek criminal law were not sufficient grounds for refusing extradition. The prosecutor also referred to the information provided by the FMS that the applicant was an Uzbek national who had not applied for Russian citizenship. The prosecutor concluded that there were no obstacles to his extradition to Uzbekistan. 31 .     On 6 and 14 July 2010 the applicant sought judicial review of the extradition decision. He stated, in particular, that his decision to leave the Uzbek army had been wrongly classified as desertion; that the statute of limitations for desertion had expired; that, since he had not mastered the Uzbek language, he had been discriminated against in Uzbekistan, in particular by superior colleagues who had told him he should learn Uzbek; that, if extradited, he ran the risk of being subjected to torture, a widespread practice in Uzbekistan, along with other human rights violations; that he had been permanently residing in Russia for over eight years and had no intention to return to Uzbekistan; that his spouse and children were Russian citizens and that his disabled daughter needed costly medical treatment, unavailable in Uzbekistan. 32 .     From 6 to 9 August 2010 the Tula Regional Court (“the regional court”) heard the applicant’s case in the presence of his lawyer. The applicant specified that he had left Uzbekistan for Russia in order to ensure his family’s well-being. He considered that after his departure, the Uzbek authorities had launched a search for him with a view to bringing him to justice for desertion. Uzbek policemen had threatened his spouse. He clarified that he would risk political persecution in the event of extradition for the reason that he had not mastered Uzbek, although he had studied it at school, and that he generally disapproved of the politics of Uzbekistan, although neither he nor his family had been politically or religiously active or persecuted. While in Russia, the applicant had used his USSR military officer’s professional card (удостоверение офицера СССР) as an identity document and, consequently, had had no need to apply for asylum or refugee status there. 33 .     On 9 August 2010 the regional court upheld the extradition decision and, relying on Articles 462 § 1 and 464   §§   1-2 of the CCrP and Article 57 of the Minsk Convention, rejected the applicant’s appeal. The court established that the applicant had left Uzbekistan for purely economic reasons. Neither the applicant nor his extended family had been discriminated against or persecuted for political reasons in the requesting country. The alleged police threats towards his spouse were unsubstantiated. The Uzbek authorities had provided sufficient assurances that the applicant’s rights would be fully respected in the event of extradition. The statute of limitations for desertion had not expired either under the Uzbek or the Russian law. The applicant’s health was in a satisfactory condition and, as such, did not preclude him from being extradited. As regards the applicant’s family situation, the court stated the following: “Mr Shakurov’s argument that his departure from Uzbekistan in 2002 was motivated by the necessity to provide medical treatment for his child is unsubstantiated. As can be seen from medical certificate no. 490 appended to the case file, the Ministry of Health of Uzbekistan recommended the treatment [in Moscow] only on 30 July 2009 at the relatives’ request. Mr Shakurov’s children have been living with his spouse, who has been taking care of them”. 34.     On 12, 16 and 31 August and 10 September 2010 the applicant and his legal counsel appealed against the first-instance judgment. They challenged the charges against the applicant, argued that the regional court had failed to take into account the circumstances which had prompted his departure from Uzbekistan, underlined that his spouse and children were Russian citizens and expressed a fear for his life in case of extradition. As to the applicant’s family life, the applicant’s lawyer argued as follows: “The first-instance court did not properly take account of the difficult family circumstances of [the applicant]: his daughter’s illness and disability status, the recommendation that her health care be sought in Russia, and the futility of [the applicant’s] retirement applications to the military command and insufficiency of the emoluments...” 35 .     On 30 September 2010 the Supreme Court of the Russian Federation (“the Supreme Court”) dismissed the points of appeal and upheld the first-instance judgment. The hearing was held by video link and the applicant was legally represented. The appeal court found that the lower court had issued a lawful and reasoned decision. It pointed out that the applicant had been prosecuted for the crime of desertion punishable both in Uzbekistan and Russia, that the statute of limitations had not expired and that the Uzbek authorities had furnished the necessary diplomatic assurances. The court relied on Chapter 54 of the CCrP. 3.     The applicant’s detention with a view to extradition 36.     On 11 January 2010 the district prosecutor submitted a request to place the applicant in custody with a view to extradition on the basis of Articles 108, 109 and 466 § 1 of the CCrP. 37 .     On 11 January 2010 the district court ordered the applicant’s placement in custody pending extradition. The applicant was kept in remand centre no. 71/1. Relying on Article 56 § 2 of the Minsk Convention and Articles 108, 109 and 466   §   1 of the CCrP, the district court stated as follows: “Under Article 287-3 of the UCC and Article 337-4 of the RCC, desertion is punishable by up to five years’ imprisonment. [...] Mr Shakurov is an Uzbek citizen. He has not applied to renounce his Uzbek citizenship. Mr Shakurov has not applied for political asylum or refugee status in Russia. He has not had access to data under the Russian official secrets legislation or data which could affect Russian national security interests. He has not been persecuted in Uzbekistan on political, racial or religious grounds or for any antisocial activity. [...] The criminal proceedings brought against him in Russia under Article 119 § 1 of the RCC were terminated on 11 January 2010 in view of the parties’ reconciliation. According to the materials submitted to the Court, the Prosecutor General’s Office should receive documents from the Uzbek law-enforcement authorities in support of the lawfulness of the arrestee’s extradition and carry out the extradition request. Given that the charges against [the applicant] constitute a crime both in Uzbekistan and Russia and that he previously absconded from the Uzbek investigation authorities, there are no grounds for denying his extradition under Article 464 of the CCrP”. The District Court did not set a time-limit for detention. 38 .     The applicant and his counsel lodged an appeal. They claimed, in particular, that the statute of limitations for his prosecution in Uzbekistan had expired, that the applicant had been living in Russia for over eight years and that his spouse and children were Russian citizens. The applicant asked the court to change the measure of restraint to an undertaking not to leave Russia or to quash it and grant him refugee status or political asylum. 39.     On 10 February 2010 the regional court upheld the detention order on appeal, supporting the district court arguments with the following: “Pursuant to Article 8 of the Minsk Convention and Article 78 of the RCC, the running of the statute of limitations is suspended in the event that the accused is being searched for. Mr Shakurov is an Uzbek citizen and has not obtained Russian citizenship. His residence in Russia is not in compliance with domestic law and cannot be a ground for granting him Russian citizenship. He has not applied for political asylum or refugee status in Russia. [...] the court rejects as unsubstantiated the applicant’s argument that he was unaware of the charges brought against him in Uzbekistan, the institution of criminal proceedings against him and the search warrant issued for him there. His other arguments for appeal, such as his continuous residence in Russia and family situation, cannot be taken into account for the purpose of ordering detention pending extradition. The court observes that the district court committed no breaches of the CCrP which could necessitate the quashing of its decision”. 40 .     On 4 March 2010 the district court extended the applicant’s detention pending extradition to 11 May 2010, taking it to a total of four months. The court relied on Article 109 of the CCrP. The applicant and his lawyer attended the hearing. The court established that there were no grounds for altering the preventive measure, stating as follows: “According to the materials submitted to the Court, the Prosecutor General’s Office should receive documents confirming the lawfulness of the arrestee’s extradition from the Uzbek law-enforcement authorities and carry out the extradition procedure. Mr   Shakurov is charged with an offence constituting a crime both in Uzbekistan and in Russia, he absconded from the Uzbek prosecuting authorities and no ground for denying extradition under Article 464 of the CCrP can be applied to his case. Mr Shakurov’s placement in custody as a measure of restraint was valid, lawful, well-grounded and conducted in compliance with the criminal-procedure laws. The circumstances under which the measure of restraint was imposed on Mr   Shakurov have not changed.” 41.     On 10 March 2010 the applicant submitted his points of appeal. He specified that his application for political asylum had been disallowed (see paragraph 61 below) and contested that he had absconded from the Uzbek law-enforcement authorities. He further reiterated his reasons for departing from Uzbekistan, such as his disapproval of the Uzbek political regime, discrimination against the Russian-speaking population and the ensuing lack of opportunity for his spouse to obtain a University degree, the absence of quality medical care and of educational prospects for the children, and a low standard of living. The applicant pursued his argument as follows: “I believe that the above-mentioned facts allow me to choose a place of residence for me and my family. I have always thought of Russia as my motherland (although I was born in Kazakhstan). I also ask the honourable court to consider that I have never been convicted, I have been officially married since 1993, my spouse is a Russian citizen, I have to provide for two underage children (one of whom has been suffering from a disability since childhood) who are also Russian citizens, and I have been permanently residing in Yasnogorsk (what else is needed to obtain Russian citizenship?). In view of the above, I ask you to quash the decision of the district court [to extend the detention term]. For, in the event of my extradition and unlawful conviction in Uzbekistan [...], I have rather substantiated reasons to fear persecution and I really fear for my life.” The points of appeal reached the regional court on 23   March   2010. 42.     On 28 April 2010 the regional court dismissed the applicant’s appeal, addressing his arguments in full and rejecting them as unsubstantiated. The applicant’s lawyer attended the hearing. With reference to Article 109 of the CCrP and Article 34 of the Ruling of 29   October 2009 of the Russian Supreme Court, the regional court stated as follows: “Extending Mr Shakurov’s detention pending extradition, the [district] court put forward convincing arguments. In view of the material in its possession, the judges’ panel agrees with these arguments.... The personal situation of the accused, including his arguments for appeal, was taken into account by the [district] court. Although there is no information in the case file as to Mr Shakurov’s child’s disability, this fact cannot cast doubt on the validity of the court’s argument in favour of the extension of the detention term.” 43 .     On 6 May 2010 the district court extended the applicant’s detention to 11 July 2010, taking it to a total of six months. In doing so, the district court referred to Article 109 of the CCrP and provided similar reasoning as in its decision of 4 March 2010 (see paragraph 40 above). It also took into account the letter of the Uzbek Prosecutor General’s Office (see paragraph 22 above) and the applicant’s pending request for refugee status. The applicant and his lawyer attended the detention hearing. However, neither of them appealed. 44 .     On 7 July 2010 the district court extended the applicant’s detention to 11 September 2010 under Article 109 of the CCrP, taking it to a total of eight months. The hearing was held in the presence of the applicant and his legal counsel. They challenged the lawfulness of the charges pending against the applicant in Uzbekistan and claimed that Article 109 of the CCrP was inapplicable to his case since the applicant had not been charged with a serious criminal offence and thus could not be detained for more than six months under the CCrP. 45.     With reference to the letter of the 13 November 2009 of the Uzbek Prosecutor General’s Office (see paragraph 22 above), the court considered that aggravated desertion was a serious crime punishable by up to ten years’ imprisonment under Article 228-2 of the UCC and Article 338-2 of the RCC. Therefore, Article 109 was applicable to the applicant’s case with a view to extending his detention above six months. The court also took note of the refusal of his refugee applic ation by the FMS on 7   June 2010 (see paragraph 65 below). The court stated as follows: “As can be seen from the materials submitted to the court, Mr Shakurov has been charged with a criminal offence which is classified as serious both in the territory of Uzbekistan and in the territory of Russia. He has previously absconded from the Uzbek investigation authorities. Presently, the Russian Prosecutor General’s Office has granted the extradition request submitted by its Uzbek counterpart [...]. Mr Shakurov’s placement in custody as a measure of restraint was valid, lawful, well-grounded and conducted in compliance with the Russian criminal-procedure laws. The circumstances under which the measure of restraint was imposed on Mr   Shakurov have not changed.” 46.     On 12   July 2010 the applicant appealed against the first-instance decision. He challenged the validity of the extradition request, claimed that the Uzbek authorities had failed to prove that he had been timely informed of the charges pending against him and their subsequent re-classification as aggravated desertion. Lastly, he complained that the first-instance court had disregarded his personal situation. On 15 July 2010 the applicant’s points of appeal reached the district court. On an unspecified date, the district court submitted the file to the regional court, which was the appeal-instance court for the detention issue. It is likewise unclear when the file in fact reached the regional court. The regional court issued its decision on 18   August 2010. It is undisputed, however, that, having received the file, the appeal court issued its decision within three days, as required under the CCrP (see paragraph 75 below). 47 .     As indicated, on 18 August 2010 the regional court examined the applicant’s arguments and dismissed them as unsubstantiated. Both the applicant and his lawyer were present at the hearing. The regional court stated, inter alia , that the district court had taken its decision in compliance with Chapters 13 and 54 of the CCrP, the European Convention on Extradition of 13 December 1957 and the Minsk Convention. The district court had considered the extradition request to the extent that the international treaties and Chapter 54 of the RCC so allowed. The applicant’s personal situation had also been taken into account. In view of the above, the regional court concluded that: “Hence, as a result of real judicial review, the [district] court reasonably and rightly established that Mr Shakurov’s term of detention should be extended. At present, Mr Shakurov’s detention does not fall foul of Article   5   §   1   (c) of the European Convention [...] or Article 55 § 3 of the Russian Constitution, according to which individual rights and freedoms can only be restricted by a Federal Law in so far as it is necessary for the protection of the constitutional order, morals, health and legal interests of other citizens.” 48.     On 8 September 2010 the district court, at the request of the Deputy Regional Prosecutor of 1 September 2010, extended the applicant’s detention to 11 November 2010, taking it to a total of ten months. Relying on Article 109 of the CCrP, the court provided similar reasoning as on 7   July 2010 (see paragraph 44 above). As an additional ground for extension, the court referred to the pending judicial review in respect of the Prosecutor General’s Office’s decision to grant the extradition request. The applicant and his legal counsel attended the hearing. 49.     On 13 September 2010 the applicant submitted his points of appeal. Yet again, he challenged the charges brought against him in Uzbekistan and argued that the statute of limitations had expired. He referred to Article 464 §§ 1-4 of the CCrP. On 16   September 2010 the points of appeal reached the district court. On an unspecified date, the district court submitted the file to the regional court. Whereas it is unclear when the file reached the regional court, it remains undisputed that, having received the file, the appeal court issued its decision within three days, as required under the CCrP (see paragraph 75 below). 50 .     On 29 September 2010 the regional court dismissed the applicant’s appeal with similar reasoning as on 18 August 2010 and also referred to Article 5 § 1 (c) of the Convention, the European Convention on Extradition and the Minsk Convention. Relying on the ruling of 29 October 2009 of the Supreme Court, the regional court highlighted that in extending detention with a view to extradition, a court was to apply Article 109 of the CCrP, according to which detention can be extended to up to twelve months. The applicant did not attend the hearing but was represented at it. 51.     On 8 November 2010 a deputy regional prosecutor requested to extend the applicant’s detention for another two months, taking it to a total of twelve months. The prosecutor took note of the refusal of the applicant’s asylum and refugee status requests (see paragraphs 61, 65 and 68 below), against which the applicant did not appeal. The prosecutor also pointed to the application of Rule 39 of the Rules of Court to the applicant’s case, stating as follows: “Up to present the European Court has not lifted Rule 39 of the Rules of Court and, therefore, Mr Shakurov cannot be extradited and should be remanded in custody in accordance with Article 109 of the CCrP.” The prosecutor requested to extend the applicant’s detention, inter alia , “with a view to ensuring his detention until the European Court of Human Rights examines his application and with a view to surrendering him to the Uzbek law-enforcement authorities for the purpose of prosecution.” 52.     On 11 November 2010 the district court granted the prosecutor’s request and extended the applicant’s detention to 11   January 2011 under Article 109 of the CCrP. Both the applicant and his legal counsel attended the hearing. The applicant argued that the term of his detention pending extradition had started running on 4 November 2009 when the district prosecutor interviewed him following the receipt of information on the charges pending against him in Uzbekistan (see paragraph 19 above). The applicant’s lawyer asked the court to release the applicant since the term authorised under Article 109 of the CCrP had expired and Rule 39 of the Rules of Court had been applied to his case. The court established that the applicant’s placement in custody with a view to extradition had been ordered on 11   January 2010 and rejected the applicant’s argument as unsubstantiated. In extending the detention term, the court relied on Article 109 of the CCrP and gave similar reasoning as on 7   July 2010 (see paragraph 44 above). 53.     On 17 and 18 November 2010 the applicant and his legal counsel introduced their points of appeal. They reiterated that the applicant’s term of detention with a view to extradition had started running on 4 November 2009 at the latest. Yet on 29   October 2009 the court deciding on the extension of his detention on criminal charges in Russia had been aware that the applicant had been wanted for a crime committed in Uzbekistan (see paragraph 15 above). In accordance with Article 109 § 3, detention could be extended beyond twelve months only in view of particularly serious charges, which was not his case. The prosecutor had wrongly construed Rule 39 of the Rules of Court as a ground for extending his detention pending examination of his application by the Court. Since the application of Rule 39 barred the applicant from extradition, his continuous detention was unlawful and contrary to Article 5 § 1 (f) of the Convention. The applicant had no intention to flee Russia and asked the appeal court to consider his family situation. 54 .     On 1 December 2010 the regional court dismissed the applicant’s and his lawyer’s points of appeal, who both attended the hearing. The regional court upheld the grounds for extending the applicant’s detention put forward by the district court and emphasised that his detention was not in breach of Article 5 of the Convention. The court established that the date of the applicant’s detention pending extradition had started running on 11   January 2010, reasoning as follows: “Contrary to the assertions of the [applicant’s] lawyer, the fact that the Uzbek law-enforcement authorities had been searching for Mr Shakurov for the purpose of prosecution was not the ground for the court’s order to place him in custody [on 29   October 2009]. The fact that the extradition check was launched when Mr Shakurov was being held in custody on criminal charges brought against him in Russia is no reason for calculating the term of his detention pending extradition from this date. Thus, pursuant to Article 465 of the CCrP, a foreign national who is being prosecuted or is serving a penalty for a crime committed in the Russian territory cannot be surrendered until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served. On 11 January 2010 the justice of the peace [...] terminated Mr   Shakurov’s prosecution under Article 119 § 1 of the RCC [...], lifted the measure of restraint and released him. Thereafter the district prosecutor submitted a court request under Articles 97 § 2 and 466 of the CCrP to place Mr Shakurov in custody pending his possible extradition to Uzbekistan. On 11 January 2010 the district court granted the said request. Therefore, the term of Mr Shakurov’s detention with a view to extradition under Article 109 of the CCrP started running from this date.” 55 .     On 11 January 2011 the district prosecutor ordered that the applicant be released under house arrest for the reason that the maximum authorised detention term had expired and that Rule 39 of the Rules of Court had been applied to his case. The prosecutor relied on provisions of Chapters 13 and 54 of the CCrP, in particular Article 109 § 2. The applicant was released. 56.     On 18 January 2011 the applicant appealed. 57.     On 1 February 2011 the regional prosecutor’s office quashed the decision of 11 January 2011. 58.     On the same day the district court discontinued the proceedings on the ground that the impugned decision had been quashed and the applicant had consequently recalled his complaint of 18 January 2011. 59.     On 2 February 2011 the district prosecutor’s office ordered the applicant not to leave his town of residence. 4.     Asylum and refugee applications (a)     Applications for political asylum and refugee status 60 .     On 15 January 2010 the applicant lodged a request for political asylum and refugee status with the FMS department in the Tula Region (“the regional FMS”). He submitted, in particular, that he disapproved of the politics of Uzbekistan and the low-quality medical care, that he had left Uzbekistan for work-related reasons and that he and his family had been discriminated against there, owing to their insufficient command of the Uzbek language. 61 .     On 22 January and 1 February 2010 the regional FMS stated that the applicant’s request for political asylum could not be processed in view of the visa-free regime between Russia and Uzbekistan. Consequently, the regional FMS advised the applicant to apply for refugee status. 62 .     On 17 February 2010 the applicant submitted an application for refugee status, as indicated. He provided the same reasoning as in the request of 15 January 2010. 63 .     On 12 March 2010, at an interview with a regional FMS officer, the applicant stated that in the event of his extradition to Uzbekistan he feared prosecution and imprisonment for desertion, a crime that he had not committed. 64.     On 29 March 2010 the applicant submitted that the statute of limitations for desertion had expired and that he had not been notified of the launch of the criminal proceedings against him in Uzbekistan. 65 .     On 7 June 2010 the regional FMS rejected the applicant’s request for refugee status. The FMS found that the applicant faced no risk of persecution on account of his origin, religion, nationality or belonging to a particular social group. Discrimination that the applicant might face owing to his allegedly insufficient command of the Uzbek language did not amount to persecution on account of his origin. The applicant had left Uzbekistan for economic reasons. The FMS concluded that he did not wish to return to Uzbekistan so as to avoid prosecution for the crime with which he had been charged. The FMS also noted that since the applicant’s arrival in Russia in 2002 he had made no steps to claim refugee status until his arrest and subsequent detention with a view to extradition. 66.     The applicant did not appeal against the above decision. (b)     Applications for temporary asylum 67.     The applicant submitted two requests for temporary asylum, on 23   June 2010 and 18 January 2011. The second request emphasised the applicant’s risk of being subjected to torture as a result of politically motivated persecution in the event of extradition. He supported his argument with references to the systematic practice of torture described by international human rights reports. 68 .     On 12 July 2010 the regional FMS rejected his first application on the ground that the applicant’s health was in a satisfactory condition, that he did not require any medical care an