CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 octobre 2012

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RUSSIA   (Application no. 27843/11)             JUDGMENT       STRASBOURG   16 October 2012   FINAL   16/01/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Niyazov 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 25 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 27843/11) 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 Akhmadzhon Toshaliyevich Niyazov (“the applicant”), on 4 May 2011. 2.     The applicant was represented by Ms Y.Z. Ryabinina and Ms   E.   Davidyan, lawyers practising in Moscow. The Russian Government (“the   Government”) were represented by Mr   Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that his extradition and administrative removal to Uzbekistan would entail a violation of Article 3 of the Convention and that no effective domestic remedy was available to him by which to challenge his extradition and administrative removal on that ground. He further claimed that his detention pending extradition and administrative removal proceedings was unlawful, in breach of Article 5 of the Convention. 4.     On 5 May 2011 the President of the First Section decided to apply Rules   39 and 41 of the Rules of Court, indicating to the Government that the applicant should not be extradited or expelled to Uzbekistan until further notice and granting priority treatment to the application. 5.     On 4 July 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 6.     The applicant was born in 1961 and since 2009 he has been living in Russia. He currently resides in Irkutsk, Russia. A.     Background information 7.     The applicant is a practising Muslim. Until December 2009 he lived in Uzbekistan. 8.     At some point in 2000 the Uzbek police questioned the applicant in connection with the terrorist bombings of 1999 in Tashkent. The applicant testified that he was not in possession of any information about the bombings. 9.     In December 2009 the applicant arrived in Russia. He registered with the local migration service as a foreign national residing in Russia. He had a valid temporary residence registration until 9 December 2010. B.     Criminal proceedings against the applicant in Uzbekistan 10.     On 31 March 2010 the Investigative Unit of the Fergana Regional Department of the Interior of Uzbekistan brought criminal proceedings against the applicant on suspicion of membership of a “banned unlawful religious extremist organisation, ‘Wahhabism’, and participation in the terrorist bombings in Tashkent in 1999. The applicant was charged with attempting to overthrow the Uzbek State’s constitutional order (Article 159 § 3 (b) of the Criminal Code of the Republic of Uzbekistan (“the UCC”), establishing or resuming the activities of proscribed non-governmental and religious organisations, and active participation in their activities (Article   216 of the UCC), setting up a criminal group (Article 242 § 1 of the UCC), producing and disseminating documents containing ideas of religious extremism, separatism and fundamentalism, threats to national security and public order (Article 244(1) § 3 (a) of the UCC), setting up, managing and participating in extremist, separatist, fundamentalist and other banned organisations (Article 244(2) § 1 of the UCC), and smuggling material disseminating extremist, separatist and radical fundamentalist ideas (Article   246 of the UCC). 11.     On 27   April   2010 the investigator of the Fergana Regional Department of the Interior of Uzbekistan issued two separate decisions ordering the applicant’s name to be placed on a cross-border wanted list. 12.     In accordance with the first decision, he was accused of the setting up of and active participation from 2000 to 2009 in a local branch of the religious extremist organisation “Warriors of Islam” in the Kuvinskiy District of the Fergana Region in Uzbekistan. 13.     From the second decision issued on the same date it can be seen that the prosecution suspected him of membership of a “banned unlawful religious extremist organisation, ‘Wahhabism’, and participation in the terrorist bombings in Tashkent in 1999. 14.     Both decisions specified that the applicant was to be put on the cross-border wanted list as a person charged with offences punishable under Articles 159 § 3 (b), 216, 242-1, 244(1)-3 (a), 244(2) and 246 of the UCC (see paragraph 10 above). 15.     On 27 April 2010 a judge in charge of criminal cases at the Fergana Court of Uzbekistan ordered that the applicant should be placed in custody. The decision referred to the charges listed in paragraph 14 above and specified that the applicant was accused of membership of ‘Wahhabism’, and participation in the Tashkent terrorist bombings in 1999. C.     The applicant’s detention and extradition proceedings 1.     Extradition proceedings (a)     The applicant’s arrest and extradition check 16.     On 29 October 2010 the applicant was arrested at a train station in Irkutsk, Russia. 17.     On the same date the Deputy Head of the Fergana Department of the Interior of Uzbekistan submitted to the Irkutsk Transport Prosecutor confirmation of the applicant’s placement on the cross-border wanted list and of the intention to request his extradition, accompanied by a petition for the applicant’s arrest and placement in custody pending receipt of the documents for extradition from Russia to Uzbekistan. They enclosed copies of the decisions to initiate criminal proceedings against the applicant and to put him on the cross-border wanted list, as well as the order to place him in custody, and an extract from the UCC. 18.     On 30   October 2010 the applicant was interviewed by an assistant prosecutor from the Irkutsk Transport Prosecutor’s Office with the assistance of an interpreter. The applicant stated that he was a practising Muslim but had never preached Islam. He had arrived in Russia in 2009 and had registered as a foreign national temporarily residing in the country. His registration had been due to expire, and he had decided to travel to the Russian-Kazakh border in order to renew it, but had been arrested at the train station. According to him, criminal charges had been brought against him on religious grounds in his home country. He confirmed that he had not applied for refugee status in Russia. 19.     On 31 October 2010 the Irkutsk Transport Prosecutor ordered the applicant’s detention pending receipt of the extradition request from the Uzbek authorities (see paragraph 40 below). 20.     On 2 November 2010 the Irkutsk Transport Prosecutor drew up a report on the results of the extradition check and found, with reference to the nature of the charges against the applicant, the interview results and the documents submitted by the Uzbek authorities (see paragraph 17 above), that there existed no obstacles to the applicant’s extradition to Uzbekistan. 21.     On 29   November   2010 the Deputy Prosecutor General of Uzbekistan sent a request for the applicant’s extradition to Uzbekistan to the Russian Prosecutor General’s Office. The request contained assurances that the applicant would be prosecuted only for the offences for which he was being extradited, that he would be able to freely leave Uzbekistan when he had stood trial and served any sentence, that he would not be expelled or extradited to a third State without the consent of the Russian authorities, and that he would not be subject to torture or other inhuman or degrading treatment. The requesting party further stressed that in 2008 the death penalty had been abolished in Uzbekistan. The Deputy Prosecutor General of Uzbekistan assured his Russian counterpart that the applicant would be provided with medical care if required and that the guarantees of a fair trial would be observed in the criminal proceedings against him. 22.     On 30   November 2010 the Russian Prosecutor General’s Office received the extradition request and on 6   December 2010 it was forwarded to the Irkutsk Transport Prosecutor’s Office (see paragraph 41 below). 23.     The Federal Security Service of the Russian Federation, by letters of 3 and 22   December   2010, and the Ministry of the Foreign Affairs of the Russian Federation, by a letter of 21 December 2010, informed the Prosecutor General’s Office that there was no information that there existed any obstacles precluding the applicant’s extradition to Uzbekistan, and that the extradition would not damage the interests or security of the Russian Federation. 24.     On 20   December 2010 the applicant’s lawyer submitted objections to the applicant’s extradition to the Prosecutor General’s Office, arguing that refugee-status proceedings had been initiated in respect of the applicant (see paragraph 70 below) and that the applicant would run a personal risk of ill-treatment and persecution in case of his extradition to Uzbekistan. 25.     On 22 December 2010 the Federal Migration Service of Irkutsk (“the Irkutsk FMS”) informed the Prosecutor General’s Office that the applicant did not hold Russian nationality and since 10 December 2009 had been registered with the local migration authority as a foreign national residing in Russia. 26.     On 26 December 2010 the applicant’s lawyer sent a telegram to the Prosecutor’s General’s Office reiterating that on 20 December 2010 the applicant had lodged a request for refugee status with the Irkutsk FMS. (b)     Decision to extradite the applicant 27.     On 25 February 2011 the Russian Prosecutor General’s Office ordered the extradition of the applicant to Uzbekistan on account of the charges under Article 244(1)   §   3   (a) of the UCC (producing and disseminating documents containing a threat to national security and public order) and Article 244(2)   §   1 of the UCC (setting up, managing and participating in extremist, separatist, fundamentalist and other banned organisations). By the same decision the Prosecutor General’s Office refused the extradition request in so far as it concerned the charges under Article 159 of the UCC (attempt to overthrow the Uzbek State’s constitutional order, participation in and direction of religious, extremist, separatist and other prohibited organisations), Article 216 (establishing or resuming the activities of proscribed non-governmental and religious organisations, and active participation in their activities), Article 242   §   1 (setting up a criminal group) and Article 246 of the UCC (smuggling of materials disseminating extremist, separatist and radical fundamentalist ideas). (c)     Review of the extradition order by the Irkutsk Regional Court 28.     On 9   and 16   March 2011 the applicant sought judicial review of the extradition decision. He submitted, in particular, that the decision was unlawful since it had been issued before his request for refugee status had been determined by the domestic authorities. He further argued that he could not be extradited under Article 244(1)   §   3   (a) of the UCC, since the time-limits for the applicant’s prosecution under Russian law had expired. In so far as the extradition order concerned Article 244(2)   §   1 of the UCC, the applicant was charged with setting up and active participation in the organisation “Wahhabism”, which was not included in the list of organisations banned in Russia. He further submitted that the extradition request did not contain specific information on the offences allegedly committed, but was confined to a mere list of references to the Uzbek law provisions. Finally, referring to the Court’s extensive case-law on the matter and various reports by international observers, he stressed that the use of torture and ill ‑ treatment against detainees in Uzbekistan was systematic and unpunished by law-enforcement and security authorities and therefore the extradition order had been issued in violation of Article 3 of the Convention. 29.     On 19   April   2011 the Irkutsk Regional Court held a hearing on the applicant’s complaint. The applicant’s representative before the Court maintained the arguments outlined in the statement of appeal and in addition made extensive and detailed submissions regarding the human rights situation in Uzbekistan and the risk of ill-treatment to the applicant in case of his extradition to the requesting country. On the same date the Regional Court decided to obtain more information from the Federal Migration Service on the progress of the applicant’s asylum proceedings. 30.     On 29   April   2011 the applicant was released from detention (see paragraph   55 below). 31.     On 16   May   2011 the Irkutsk Regional Court granted the applicant’s appeal and found that the extradition request could not be granted, and that the extradition proceedings in respect of the applicant should be discontinued, for the following reasons. 32.     First, the case file contained two separate decisions dated 27 April 2010 by the same investigator of the Fergana Regional Department of the Interior of Uzbekistan containing contradictory information on the charges against the applicant. According to the first decision the applicant had been accused of setting up and active participation from 2000 to 2009 in a local branch of the religious extremist organisation “Warriors of Islam” in the Kuvinskiy District of the Fergana Region in Uzbekistan. Accordingly, charges had been brought against him under Articles   159   § 3   (b), 242   §   1, 244(1)   §   3   (a), 244(2)   §   1, and 246 of the UCC (see paragraphs   10 and 12 above). The extradition request had been partially granted, and the extradition order of 25   February 2011 issued on the basis of that decision. However, according to the second decision, issued on the same date and by the same authority, the applicant had been accused of membership of a “banned unlawful religious extremist organisation, ‘Wahhabism’, and participation in the terrorist bombings in Tashkent in 1999, but was charged with exactly the same offences as in the first decision (see paragraphs 13-14 above). In these circumstances, the court was unable to establish the exact scope of the actions on account of which the applicant’s extradition had been requested. 33.     Moreover, the court observed that according to the second decision the charges against the applicant concerned the events of 1999, whilst the relevant criminal proceedings had not been opened in Uzbekistan until 31   March 2010. In these circumstances, the statutory limitation period had expired under Russian law, and the offences were no longer punishable in Russia, therefore the applicant could not be extradited to Uzbekistan in accordance with Article 464   § 1-6 of the CCrP. Furthermore, the organisation “Wahhabism” referred to in the second decision was not included in the list of organisations banned in Russia, which also constituted a ground for refusal of the applicant’s extradition. 34.     Finally, the court found, with reference to the Court’s case-law in the cases of Ismoilov and Others v. Russia (no. 2947/06, 24 April 2008), Muminov v. Russia (no.   42502/06, 11 December 2008), Yuldashev v. Russia (no. 1248/09, 8 July 2010), and Abdulazhon Isakov v. Russia (no. 14049/08, 8   July 2010), that a general problem of ill-treatment of detainees in Uzbekistan still persisted in the country and diplomatic assurances could not offer a reliable guarantee against it. Therefore, there existed serious grounds for believing that the applicant would face a serious risk of being subjected to torture or inhuman or degrading treatment in breach of Article   3 of the Convention if extradited to Uzbekistan. (d)     Proceedings before the Supreme Court of Russia 35.     On 23   May   2011 the East-Siberian Transport Prosecutor’s Office appealed against the decision of 16   May   2011 to the Supreme Court of the Russian Federation. On 29   and 30   May   2011 the applicant’s lawyers filed observations in reply. 36.     On 19   July   2011 the Supreme Court of the Russian Federation upheld the judgment of 16   May   2011 on appeal. The court endorsed the first ‑ instance court’s findings that the extradition request by the Uzbek authorities was based on contradictory and inconsistent documents and that the applicant could not be extradited for the offences allegedly committed in   1999 because of the expiry of the statutory time-limit under Russian law. The court further endorsed the Regional Court’s arguments that there existed serious grounds to believe that the applicant would face a serious risk of being subjected to ill-treatment in case of his extradition to the requesting country. 37.     In addition, the Supreme Court found that the extradition order should be declared unlawful since it had been issued in the absence of a final decision in the refugee-status proceedings. 38.     Finally, the Supreme Court took into account the fact that on 5   May 2011 the Court had granted the applicant’s request for the application of an interim measure under Rule   39 of the Rules of Court and had indicated to the Government that they should suspend his extradition and administrative removal to Uzbekistan (see paragraph 4 above). The decision to quash the extradition order and discontinue the extradition proceedings became final. 2.     The applicant’s arrest and detention pending extradition (a)     The applicant’s arrest and the detention orders of 31   October and 7   December   2010 by the Irkutsk Transport Prosecutor 39.     As set out above, on 29   October   2010 the applicant was arrested at a train station in Irkutsk, Russia on the basis of the documents by the Uzbek authorities confirming their intention to request his extradition and their petition for the applicant’s arrest and placement in custody (see paragraphs   16 and 17 above). 40.     On 31   October   2010 the Deputy Transport Prosecutor of Irkutsk authorised the applicant’s detention on the ground that on 27   April 2010 his name had been put on a cross-border wanted list by the Uzbek authorities and on the same date the Fergana Criminal Court had ordered his arrest. The Deputy Prosecutor referred to Article 466   §   2 of the Code of Criminal Procedure of the Russian Federation (“the CCrP”) and Article 61 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention), as well as to the documents provided by the Uzbek authorities on 29   October 2010, and observed that the applicant did not have Russian citizenship. According to the decision, the applicant was to remain in custody until “receipt of the request for his extradition from the initiator of the extradition proceedings, the Ministry of the Interior of Uzbekistan, and the determination of the extradition issue in accordance with the norms of international law.” The decision also referred to section 1.2.2 of Instruction no. 212/35 of the Prosecutor General’s Office of 18 October 2008, which provided that in case of receipt of confirmation of the intention of the authorities of the requesting State to request a person’s extradition, and submission of relevant documents, the prosecutors of towns, districts and other specialised structures of a corresponding level could “take measures to ensure” the person’s detention on grounds and within the procedure established by the domestic law and international instruments to which the Russian Federation was a party. The decision did not contain any time-limits for the detention. It specified that the applicant should be detained in the SIZO-1 remand prison in Irkutsk. 41.     On 7   December 2010 the Transport Prosecutor of Irkutsk extended the period of the applicant’s detention pending extradition until 29   December 2010, that is, to a total of two months. The prosecutor established that by the decision of 31   October 2010 the applicant had been detained “for forty days”, and the period of detention was due to expire on 7   December 2010. He further observed that on 6 December 2010 the Irkutsk Transport Prosecutor’s Office had “received confirmation of the intention to request [the applicant’s] extradition and on the impossibility of choosing a preventive measure milder than detention”. The decision contained a reference to Article 61 of the Minsk Convention and Article 466   §   2 of the CCrP, as well as to Instruction no. 212/35 of the Prosecutor’s General Office. 42.     On 21   December 2010 the applicant’s lawyer appealed against the prosecutor’s orders of 31   October and 7   December 2010 under Article   125 of the CCrP (judicial review of decisions by investigators and prosecutors). With reference to Decision no. 101-O of 4 April 2006 of the Constitutional Court of the Russian Federation, he argued that the applicant’s detention was unlawful as it had been ordered in violation of the procedure established by Article 466   §   1 and Chapter   13 of the CCrP. The decision of 31   October 2010 had not set any time-limits and the extension of 7   December 2010 had not been authorised by a court. Finally, he submitted that on 20   December 2010 the applicant had applied for refugee status in Russia. 43.     On 22   December 2010 the prosecutor applied for an extension of the applicant’s detention pending extradition under Article   109 of the Code of Criminal Procedure. 44.     On 23   December 2010 the Sverdlovskiy District Court (Irkutsk) refused to accept the applicant’s appeal for examination. With reference to Directive Decision No.   22 of 29   October 2009 by the Supreme Court of Russia (see paragraph   84 below), which provided that the authorities were to apply Article   109 of the CCrP when extending a person’s detention with a view to extradition, the court found that the prosecutor’s request for an extension had been pending at the material time, and the lawfulness of the earlier extensions would in any event have been subject to judicial scrutiny within the extension proceedings. The court stressed that a domestic judge, when deciding on a complaint under Article   125 of the CCrP, should not predetermine the court’s findings in proceedings under Article   109 of the CCrP. (b)     Extension order of 27 December 2010 by the Sverdlovskiy District Court 45.     On 27   December 2010 the Sverdlovskiy District Court extended the applicant’s detention pending extradition until 29   April 2011, that is, to a total of six months, with reference to Articles   466 and 109 of the CCrP. The applicant’s arguments were summarised in the decision as follows: “The defence objected to the extension, considering that the preventive measure [in respect of the applicant] could be changed to a milder one.” The court found, in particular, that the circumstances of the applicant’s case had not changed and there were no grounds to modify the preventive measure. The court established that the applicant had been charged in Uzbekistan with serious offences punishable by more than one year’s imprisonment under Uzbek and Russian law, that he did not have permanent residence in Russia, and that he might flee from justice if released. Furthermore, there were no circumstances, such as, for example, the applicant’s state of health, precluding his detention. In these circumstances, the court found that the applicant’s detention was “strictly necessary” in order to secure his extradition to the Uzbek authorities. 46.     On 29   December 2010 the applicant’s lawyer challenged the decision of 27   December 2010 as unlawful and requested the applicant’s release. He argued that the first-instance court had not examined his application for judicial review of the prosecutor’s orders of 31   October and 7   December 2010 and had disregarded his complaint under Article   125 of the CCrP when deciding on the extension. He further reiterated that the prosecutor’s decisions had not been taken in accordance with Chapter   13 of the CCrP, that the applicant’s detention had not been authorised by a court, and that the applicant had made an application for refugee status in Russia. The complaint was sent to the Sverdlovskiy District Court by mail. 47.     The complaint reached the Sverdlovskiy District Court on 11   January 2011. According to the Government, between 11 and 21 January 2011 the case file had remained at the District Court owing to the necessity to translate the statement of appeal into Uzbek and send it to the parties, including the applicant. 48.     On 21 January 2011 the case file was forwarded to, and on 24   January 2011 received by, the appeal court, which considered the case on 27   January 2011 49.     On 31 January 2011 the Irkutsk Regional Court delivered a decision upholding the extension order of 27   December 2010. According to the decision, the applicant’s appeal “was examined in a public hearing of 27 ‑ 31   January 2011”. 50.     As regards the lawfulness of the initial period of the applicant’s detention, the appeal court found that the extradition request in the present case had been accompanied by a detention order by a foreign court, and therefore in accordance with Article 466 § 2 of the CCrP, the prosecutor was entitled to remand the applicant in custody without a Russian court’s authorisation. The court further established that the extension of 27   December 2010 had been granted in accordance with Article 109 of the CCrP. The court allowed the prosecutor’s argument that the extension was necessary in order to comply with the extradition procedure. It also endorsed the lower court’s fining that there were no new circumstances requiring the applicant’s release. 51.     By the same decision the court rejected the lawyer’s argument about the first-instance court’s failure to examine the complaint against the detention orders of 31   October and 7   December 2010 as unfounded, for the following reason: “[A] judge [of the District Court] was not competent to take into account the fact that the lawyer’s complaint about the unlawfulness of the [above] decisions had remained unexamined.” 52.     Furthermore, the Irkutsk Regional Court refused to examine the lawfulness of the detention orders of 31   October and 7   December 2010, since “the final decisions could be re-examined in supervisory review proceedings”. (c)     The applicant’s subsequent attempts to challenge the decision of 23   December 2010 53.     On 3   February 2011 the applicant’s lawyer introduced a separate appeal against the decision of 23   December 2010 of the Sverdlovskiy District Court, arguing, in particular, that his complaint concerning the lawfulness of the detention orders issued by the prosecutor had remained unexamined both in the extension procedure and in the proceedings brought under Article 125 of the CCrP. 54.     On 26   April 2011 the Irkutsk Regional Court rejected the appeal. It upheld the first-instance court’s findings that the issue of the lawfulness of the initial detention orders was closely linked to the extension issue under Articles   109 and 466 of the CCrP, and thus a court’s ruling on the matter would have been liable to predetermine the outcome of the proceedings for review initiated under Articles   109 and   466 of the CCrP. Thus, the applicant’s complaint could not be examined in separate proceedings under Article   125 of the CCrP. It rejected the lawyer’s argument about the first ‑ instance court’s subsequent failure to examine the complaint in the extension proceedings of 27   December 2010 as “ill-founded”, finding that such failure did not constitute a ground for annulment of the decision of 23   December 2010. It further noted that the applicant’s lawyer was able to challenge the decision of 27   December 2010 in appeal and supervisory review proceedings. (d)     The applicant’s release 55.     On 29   April 2011 the Irkutsk Transport Prosecutor ordered the applicant’s release from custody. The prosecutor observed that the applicant had been detained for six months and that a further extension could be granted in accordance with Article   109 of the CCrP only if he had been charged with serious or particularly serious criminal offences. However, the offences the applicant had been charged with in Uzbekistan were regarded as being of medium gravity under Russian law and, accordingly, no further extension of his detention could be granted. The prosecutor ordered the applicant to register with the local migration authorities. 56.     On the same date, the applicant received a certificate from the remand prison confirming that he had been detained there from 29   October 2010 to 29   April 2011. D.     The applicant’s second arrest and the administrative removal proceedings. 1.     The applicant’s arrest and the detention order of 4   May 2011 57.     On 4   May 2011 the applicant and the lawyer representing him in the domestic proceedings scheduled a meeting at the office of the Irkutsk FMS at 11   a.m, in order to apply for an extension of the certificate confirming that he had applied for refugee status. 58.     When approaching the FMS office at about 10.55   a.m., before meeting the lawyer, the applicant was arrested by the local police and placed in a detention cell at a police station in Irkutsk. According to the applicant, he was not allowed to contact his lawyer after the arrest. 59.     Since the applicant did not appear at the meeting place on time, the lawyer immediately lodged an application concerning the applicant’s abduction with Irkutsk local police station no. 5. One of the police officers advised him that the applicant had been detained in the special detention centre of the Department of the Interior of Irkutsk ( спецприемник УВД по г. Иркутску – “the special detention centre”). The lawyer contacted the special detention centre but was advised that the applicant was not among the centre’s detainees. 60.     At some point on the same date, apparently at 3   p.m., the applicant was taken to the Kirovskiy District Court (Irkutsk), which found him guilty of having resided in Russia in breach of the residence regulations. According to the decision, the applicant stated in the court room that he had “had a valid registration in Russia until 22   November 2010 [sic]” and after that date he had chosen not to leave Russia “because he had wished to earn money and live in the Russian Federation”. The court further briefly referred to the applicant’s “confession” as a “mitigating circumstance”, found that in accordance with Article 18.8   §   1 of the Code of Administrative Offences (“the CoAO”, see paragraph 88 below) the applicant was liable to pay a fine in the amount of 2,000 Russian roubles, and ordered his administrative removal from Russia. The decision contained a reference to Article 32.10 of the CoAO (see paragraph   91 below), without further details, and the operative part read that the applicant should be detained in the Irkutsk special detention centre pending enforcement of the removal order. 61.     The applicant was not represented during the hearing and did not meet his lawyer before it. He was not assisted by an interpreter and had not received a copy of the translation of the administrative offence record in Uzbek. 62.     At about 4   p.m. on the same date the applicant’s lawyer, with the assistance of the regional Ombudsman, learnt that the applicant had been conveyed to the Kirovskiy District Court. At about 4.30   p.m. the lawyer was advised that the applicant’s case had been examined “an hour and a half ago” and that he had been transferred to the special detention centre pending his administrative removal from Russia. At 8.30   p.m. on the same date the head of the police department confirmed to the applicant’s lawyer that the applicant was detained at the special detention centre. 2.     The appeal proceedings of 17   June 2011 before the Irkutsk Regional Court 63.     On 6   May 2011 the applicant’s lawyer appealed against the removal order. He argued, in particular, that the domestic court had not taken into account the certificate from the remand prison confirming that between 29   October 2010 and 29   April 2011 he had been detained in the remand prison. Contrary to the court’s findings, the period of the applicant’s residence in Russia without a valid registration had started running on 30   April 2011. The domestic law provided that a foreign national temporarily residing in Russia should have obtained such registration within seven days, and, accordingly, the seven-day period had not expired on the date of the administrative removal ruling of 4   May 2011. Thus, the applicant submitted that he had not breached the registration rules and requested that the administrative proceedings be discontinued. Furthermore, according to the applicant, the court had incorrectly admitted the administrative offence record, since it contained inaccurate information. He further claimed that the first-instance court had failed to establish all the relevant circumstances of the case and, in particular, had disregarded the fact that extradition and refugee status proceedings were pending. First, he could not be removed from Russia because his appeal in the asylum proceedings was pending before the domestic authorities. Second, a district court was not competent to examine the issue of the administrative removal of a person in so far as extradition proceedings had been opened against him. Finally, the applicant claimed, with reference to the Court’s case-law on the matter, that he would run the risk of ill-treatment and persecution on political grounds if sent to Uzbekistan. He pointed out that on 5 May 2011 the Court had indicated to the Russian authorities that they were not to extradite or expel him to Uzbekistan, and his removal in these circumstances would entail a breach of Article 34 of the Convention. 64.     On 17 June 2011 the Irkutsk Regional Court examined the case. In addition to the arguments raised in the statement of appeal, the applicant, assisted by an interpreter, submitted in the court room that his skills in Russian were limited, that he had not been granted an interpreter at the first ‑ instance hearing, nor had he been advised of his right to be represented, and he had not received a copy of the administrative offence record translated into Uzbek. Thus, he had been incapable of presenting his case to the court. 65.     On the same date the court allowed the appeal in part. The court reiterated that the purpose of the administrative proceedings was the full, objective and timeous establishment of the entirety of the circumstances of the case (Article 24.1 of the CoAO, see paragraph 87 below). It further found that the applicant had not been provided with an Uzbek translation of the administrative offence record and had not been assisted by an interpreter in the first-instance proceedings. The appeal court ordered those shortcomings to be rectified and that “the examination of the merits of the administrative case be continued .., with careful consideration of the [applicant’s] arguments”. It remitted the case to the Kirovskiy District Court for fresh examination and ordered in the operative part of the decision that the applicant be “remanded in the special detention centre of the Irkutsk Department of the Interior until the examination of his case on the merits by the District Court”. The decision did not contain any reasoning pertaining to the issue of the applicant’s detention. 3.     New examination of the case by the first-instance court on 5   July 2011 66.     On 5 July 2011 the Kirovskiy District Court, having considered the case afresh, found the applicant guilty of having resided in Russia in breach of the residence regulations, fined him 2,000 Russian roubles, ordered his administrative removal from Russia, and specified in the operative part of the decision that he was to be detained in the special detention centre pending enforcement of the removal order. The court referred to the administrative offence record, a report by an officer of the Irkutsk FMS, and the applicant’s testimony. According to the decision, the applicant had submitted to the court that he “had had temporary registration in Russia valid until 22   November 2010 [sic], and had failed to leave Russia after its expiry because he had wished to live and earn money in Russia”. The court further addressed the applicant’s arguments as follows: “[As regards] the arguments of the defence that the applicant had not had the opportunity to leave Russia voluntarily, the court considers [them] ill-founded and in contradiction of the case-file materials.” 4.     Appeal proceedings of 26   July 2011 and the applicant’s release 67.     On 14   July 2011 the applicant’s representative in the domestic proceedings appealed against the decision, arguing that the first-instance court had failed to carefully examine the circumstances of the case and the objections raised by the defence and had thus disregarded the instructions of the appeal court. He further reproduced verbatim his arguments that the proceedings should be discontinued for lack of an administrative offence, that the applicant’s administrative removal from Russia was impossible in the absence of a final decision regarding the extradition and the refugee ‑ status proceedings, that the court had not taken these proceedings into account, that he ran the risk of ill-treatment if sent to Uzbekistan, and that Rule 39 had been applied by the Court to his case. He further informed the appeal court that the applicant’s case had been communicated to the Russian Government and questions had been put, in particular, under Article 3 of the Convention. 68.     On 26   July 2011 the Irkutsk Regional Court allowed the appeal in full. It established that the applicant had had a temporary registration in Russia valid until 9 December 2010, and that on 29   October 2010 he had been arrested and had remained in custody until 29   April 2011. In these circumstances the court found that, contrary to the first-instance court’s findings, there was nothing in the case file to suggest that the applicant had had the opportunity to leave Russia voluntarily between 9   December 2010 and 29   April 2011. Furthermore, the applicant had been entitled to remain in Russia since at the material time refugee-status proceedings had been pending in respect of him. The court concluded that the first-instance court’s decision was ill-founded and quashed it since the applicant’s actions did not constitute an administrative offence. The court ordered the administrative proceedings against the applicant to be discontinued and that he be released from custody immediately. 69.     On the same date the applicant was released from the police station. E.     Application for refugee status 70.     On 20   December 2010 the applicant lodged a request for refugee status in Russia with the Irkutsk FMS on the ground of fear of persecution because of his religious beliefs. He submitted, in particular, that the criminal charges against him had been fabricated and he ran the risk of ill-treatment if extradited to Uzbekistan. He referred to reports by Human Rights Watch and Amnesty International on Uzbekistan dated 2009 and 2011 respectively, as well as to various reports by the local media on sev