CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 février 2013

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display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FIRST SECTION         CASE OF BAKOYEV v. RUSSIA   (Application no. 30225/11)           JUDGMENT         STRASBOURG   5 February 2013     FINAL   05/05/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bakoyev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Linos-Alexandre Sicilianos,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 15 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 30225/11) 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 Uzbekistani national, Mr Bafokul Bozorovich Bakoyev (“the applicant”), on 3 May 2011. 2.     The applicant was represented by Mr S. Zavyalov, 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.     The applicant alleged, in his initial application form, that, if extradited to Kyrgyzstan, he would be subjected to ill-treatment and would not receive a fair trial. 4 .     On 18 May 2011 the President of the First Section, acting upon a request of 16 May 2011 by the applicant, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Kyrgyzstan until further notice and granting priority treatment to the application. 5.     On 24 June 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). 6.     On 14   December 2011 the applicant informed the Court that the Russian authorities had cancelled the order for his extradition to Kyrgyzstan and taken a decision to extradite him to Uzbekistan. He complained that in the event of his extradition to Uzbekistan he would also face the risk of ill-treatment and suffer a flagrant denial of a fair trial. The applicant further challenged the lawfulness of his detention pending extradition. He asked for the application of Rule   39. 7 .     On 16   December 2011 the President of the First Section decided to indicate to the Government, under Rule 39, that the applicant should not be extradited to Uzbekistan until further notice. 8.     On 20 December 2011 questions were put to the Government under Articles 3 and 6 of the Convention regarding the applicant’s upcoming extradition to Uzbekistan. 9.     On 16   March 2012 the applicant’s complaint under Article   5   §   1 was additionally communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant, an Uzbekistani national of Uzbek ethnic origin, was born in 1953 and currently lives in Moscow. 11.     Between 1953 and 2002 the applicant lived in Uzbekistan. From 2002 to 2008 he lived in Kyrgyzstan. He moved back to Uzbekistan in 2008 and lived there until 2010. 12 .     According to the applicant, he is not a member of any political or religious organisations. 13.     On 30 May 2010 the applicant left Tashkent, Uzbekistan, and arrived in Moscow on a business trip. A.     Criminal proceedings against the applicant in Kyrgyzstan 14.     Meanwhile, on 6 March 2009 the Osh City Prosecutor’s Office of Kyrgyzstan opened criminal proceedings against the applicant under Article   166   §   3 (2) of the Criminal Code of Kyrgyzstan (large-scale fraud). 15.     On 20 March 2009 the statement of charges against the applicant was issued. 16.     On 27 March 2009 the Osh City Court of Kyrgyzstan decided that the applicant should be remanded in custody. 17.     On 28 March 2009 the applicant’s name was put on a cross-border wanted list. B.     Criminal proceedings against the applicant in Uzbekistan 18.     On 13   July 2010 the chief investigator of the investigation department of the Gidzhuvanskiy District Department of the Interior, in the Bukhara Region, Uzbekistan, opened criminal proceedings against the applicant under Article 168 § 3 (a) of the Criminal Code of Uzbekistan for fraud. 19.     On 13 September 2010, charges were brought against the applicant. On the same date the applicant’s name was put on a cross-border wanted list. 20 .     On 14 September 2010 the Gidzhuvanskiy District Court remanded the applicant in custody. C.     The applicant’s arrest in Russia and proceedings with a view to his extradition 1.     Proceedings with a view to the applicant’s extradition to Kyrgyzstan 21 .     On 3 June 2010 the applicant was arrested by the police in Moscow as a person wanted by the Kyrgyzstani authorities, and placed in remand prison IZ-77/4. 22.     On 4 June 2010 the Kuzminskiy Inter-District Prosecutor of Moscow ordered the applicant’s placement in custody with a view to extradition. 23 .     On 29 June and 20 July 2010 the Kuzminskiy Inter-District Prosecutor of Moscow interviewed the applicant. The applicant submitted that he was a national of Uzbekistan and that he frequently went to Russia on business. According to him, he had not applied for Russian citizenship, political asylum or refugee status. The applicant also stated that he was unaware that the Kyrgyzstani authorities were searching for him and confirmed that he would appear before the investigator as he had nothing to fear. The applicant added that, if extradited to Kyrgyzstan, he would not consider his criminal prosecution to be politically or religiously motivated. 24.     On 12 July 2010 the Prosecutor General’s Office of Kyrgyzstan sent the Russian Prosecutor General’s Office a request for the applicant’s extradition to Kyrgyzstan. The request contained assurances that the applicant would not be expelled or extradited to a third State without the consent of the Russian authorities, that the applicant was being prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any ground, that he would be prosecuted only for the offence for which he was being extradited and that he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence. 25.     On 2 August 2010 the Prosecutor General’s Office of Kyrgyzstan submitted to its Russian counterpart certified copies of the decisions to initiate criminal proceedings against the applicant, to bring criminal charges against him, and to put him on the cross-border wanted list, as well as the court order to place him in custody, and an extract from the Criminal Code of Kyrgyzstan. 26.     On an unspecified date the Russian Prosecutor General’s Office made enquiries to the Russian Ministry of Foreign Affairs on the issue of extradition to Kyrgyzstan. It appears that the request concerned several persons, all of whom, except the applicant, were nationals of Kyrgyzstan. On   25   October 2010 the Ministry of Foreign Affairs replied as follows: “... When taking the ultimate decision on the extradition of nationals of Kyrgyzstan, it is necessary to take into account the difficult internal political situation which has emerged in Kyrgyzstan at the present time, as well as the aggravation of inter-ethnic tension, which gives rise to the possibility of biased examination of cases against citizens of this country not belonging to the titular ethnic group. In particular, the Ministry of Foreign Affairs has information concerning serious breaches in a number of court proceedings against Kyrgyz nationals of Uzbek origin; cases of intimidation of witnesses and assaults on lawyers are not infrequent. ... The Ministry of Foreign Affairs has no information which prevents the following nationals of Kyrgyzstan [list of names, including the name of the applicant] from being extradited.” 27.     On 28 December 2010 the Deputy Prosecutor General of Kyrgyzstan provided additional assurances to his Russian counterpart, stating, inter alia, that the request for the applicant’s extradition had no connection with the events in Bishkek in April 2010 [1] and in Osh in June 2010 [2] ; that the applicant would not be subjected to any form of discrimination on any ground, including his nationality, that he would be provided with every opportunity to defend himself, including legal aid, and that he would not be subjected to any form of ill-treatment. 28.     On 18 January 2011 the Deputy Prosecutor General of Russia approved the request by the Prosecutor General’s Office of Kyrgyzstan for the applicant’s extradition. The decision noted that the acts of which the applicant was accused were punishable under the Russian Criminal Code with a penalty exceeding one year’s imprisonment, that the prosecution was not time-barred, that the applicant was a national of Uzbekistan, that he had not acquired Russian nationality, and that his extradition was not in breach of international agreements or domestic law. 29.     The applicant appealed against the extradition order to the Moscow City Court. He alleged that, in view of the unstable political situation in Kyrgyzstan and ethnic unrest between the Kyrgyz majority and the Uzbek minority, the decision in his case entailed serious risks to life and limb. 30.     On 25 February 2011 the Moscow City Court rejected the applicant’s appeal. It held that the extradition order of 18   January 2011, having been based on a sufficient review of the evidence relating to extradition, had been lawful and justified. The City Court further found no reasons to doubt that the diplomatic assurances of the Prosecutor General’s Office of Kyrgyzstan would be observed. It dismissed as objectively unfounded the applicant’s argument about the risk of his being subjected to torture, humiliation and arbitrary prosecution upon his extradition to Kyrgyzstan. 31.     On 4 May 2011 the Supreme Court of Russia upheld that decision on appeal. 2.     Annulment of the decision on the applicant’s extradition to Kyrgyzstan and proceedings with a view to his extradition to Uzbekistan 32 .     In the meantime, on 18 April 2011 the Deputy Prosecutor General of Uzbekistan sent his Russian counterpart a request for the applicant’s extradition to Uzbekistan. The request was based on the charges brought against the applicant under Article 168 § 3 (a) of the Criminal Code of Uzbekistan and contained assurances that he would not be extradited to a third country without the consent of the Russian authorities, that no criminal proceedings would be initiated and that he would not be tried or punished for an offence which was not the subject of the extradition request and would be able to freely leave Uzbekistan once the court proceedings had terminated and the punishment had been served. The request was further accompanied by certified copies of the decisions to initiate criminal proceedings against the applicant and to bring criminal charges against him, the court order of 14 September 2010 to place him in custody (see paragraph 20 above), an extract from the Criminal Code of Uzbekistan and a certificate confirming that the applicant was a national of Uzbekistan. This request was received by the Russian authorities on 28 April 2011. 33 .     On 2 June 2011 the Kuzminskiy Inter-District Prosecutor of Moscow interviewed the applicant. The applicant submitted that he was a national of Uzbekistan, that he had left Uzbekistan for Kyrgyzstan in 2002 on business and that in 2008 he had returned to Uzbekistan. He further stated that his family were permanently resident in Uzbekistan. According to him, he frequently went to Russia on business. On the most recent occasion, the applicant had arrived in Russia on 20 May 2010 on a business trip. He had not applied for Russian citizenship or refugee status, and had not been subjected to persecution on political grounds in Uzbekistan. The applicant also stated that he was unaware that the Uzbekistani authorities were searching for him and gave assurances that he would appear before the investigator as he had nothing to fear. 34 .     On 2 September 2011 the Deputy Prosecutor General of Russia annulled the decision of 18 January 2011 to extradite the applicant to Kyrgyzstan. The decision read as follows: “In connection with the decision of the President of the [First] Section of the European Court of Human Rights on the application of Rule 39 of the Rules of Court in the case of Bakoyev v. Russia (application no.   30225/11), the Representative of the Russian Federation at the European Court of Human Rights – Deputy Minister of Justice of the Russian Federation G.O. Matyushkin – submitted information to the Prosecutor General’s Office of the Russian Federation on the suspension of any measures relating [the applicant’s] surrender (extradition), deportation or other forcible removal to Kyrgyzstan until further notice. To date the European Court has not discontinued the application of Rule   39, and therefore [the applicant] cannot be surrendered to the law-enforcement bodies of the Republic of Kyrgyzstan. By a decision of the Kuzminskiy Inter-District Prosecutor of Moscow of 2 June 2011 [the applicant] was released from custody because of the expiry of the statutory maximum period for [his] detention on remand. At present the Prosecutor General’s Office of the Russian Federation has received a request from the Prosecutor General’s Office of the Republic of Uzbekistan for [the applicant’s] extradition to Uzbekistan on charges of fraud under Article   168   §   3 (a) of the Criminal Code of Uzbekistan. Taking into account the decision of the European Court of Human Rights to halt [the applicant’s] extradition to the Republic of Kyrgyzstan, as well as the fact that [the applicant] is a national of Uzbekistan, the request for [the applicant’s] extradition to Uzbekistan should be granted and the decision on [his] extradition to Kyrgyzstan should be annulled.” 35 .     On the same day the Deputy Prosecutor General of Russia took a decision to extradite the applicant to Uzbekistan. The decision noted that the acts of which the applicant was accused were punishable under Article 159 § 3 of the Russian Criminal Code by a penalty exceeding one year’s imprisonment, that the prosecution was not time-barred, that the applicant was a national of Uzbekistan, that he had not acquired Russian nationality, and that his extradition was not in breach of international agreements or domestic law. 36 .     The applicant’s lawyer lodged an appeal against the extradition order of 2 September 2011. He argued that, if extradited, the applicant would run the risk of being subjected to inhuman treatment and torture, because of the existence of a widespread practice of mass and flagrant human rights violations in Uzbekistan. 37 .     On an unspecified date in October 2011 the Deputy Prosecutor General of Uzbekistan submitted to the Russian authorities additional assurances to the effect that the applicant would not be persecuted on political, racial or religious grounds, that he would not be subjected to torture, violence or other inhuman or degrading treatment, that his criminal prosecution would be carried out in strict compliance with the law and that he would be provided with every facility to defend himself, including legal aid. 38 .     On 19 October 2011 the Moscow City Court dismissed the applicant’s appeal against the extradition order. Regarding the alleged risk of ill-treatment in the event of extradition, the court held as follows: “[The applicant’s and his lawyer’s] arguments that in the event of [the applicant’s] extradition to Uzbekistan [the latter] would be subjected to torture and inhuman or degrading treatment are unsubstantiated. In particular, the references ... to the instances of human rights violations in the Republic of Uzbekistan are of a general, unspecified nature and have no connection to [the applicant]. Furthermore, the examples put forward by [the applicant’s representative] from material issued by international human rights organisations and publications in the press concerning human rights violations in Uzbekistan concerned a certain category of persons: human rights activists, religious believers, refugees and those seeking asylum who were persecuted in Uzbekistan for their religious convictions, membership of Islamic parties and movements banned in Uzbekistan, and for their criticism of the Government’s policies; this cannot apply to [the applicant] since [he] is charged with having committed criminal offences of a different legal nature, liability for which is provided for in Article 168 § 3 (a) of the Criminal Code of Uzbekistan, and does not belong to [any] of the above-mentioned categories of persons. The court also takes into consideration [the fact] that none of the organisations mentioned by [the applicant’s representative] has given a single example to show that any of the persons previously extradited from Russia to Uzbekistan had been subjected to torture. [The applicant’s and his lawyer’s] arguments are further disproved by [the applicant’s] statements [during the interviews of 29   June and 20 July 2010 and 2   June 2011] whereby [he] indicated that the reason for his departure from Uzbekistan had been to deal with business matters in the Russian Federation and denied any persecution [in Uzbekistan] on political grounds or having applied for political asylum and citizenship in the Russian Federation. [The applicant] further indicated that he had been living in Uzbekistan since his birth; that he was unaware of being searched for by law-enforcement bodies of the Republic of Uzbekistan; and that he was prepared to appear before the investigator as he had nothing to fear. He did not mention any instances of having been subjected to [ill-treatment] in the Republic of Uzbekistan, nor did he express any fears in that regard. The accuracy of the records of [the above interviews] was repeatedly certified by [the applicant’s] signature. [The applicant] for the first time expressed his fears [of being subjected to ill-treatment in the event of his extradition to Uzbekistan] in the present complaint to the court, after his arrest in Moscow and the decision of the Deputy Prosecutor General of the Russian Federation on his extradition to Uzbekistan, and this, in the court’s opinion, represents an attempt to avoid [criminal prosecution in Uzbekistan]. The court also takes into consideration the fact that despite concerns expressed [by the applicant in relation to the alleged risk of being subjected to ill-treatment in the event of his extradition] [he] has never renounced his Uzbekistani citizenship, that his family and all his relatives reside in Uzbekistan, and that after his arrival in Russia [the applicant] freely moved about within Russian territory, [yet] did not apply for refugee status or political or temporary asylum in connection with his [alleged] persecution in the Republic of Uzbekistan. ... Therefore, [the applicant’s and his lawyer’s arguments] ... are of a hypothetical nature and reflect only their personal opinion, which is disproved by the documents relating to the checks carried out by the Federal Migration Service and the Prosecutor General’s Office of the Russian Federation prior to the decision on [the applicant’s] extradition, and by the information communicated by [the applicant] himself. Under these circumstances the court does not have any strong reasons to believe that after his extradition to the Republic of Uzbekistan [the applicant] would be subjected to any treatment that would be unlawful from the point of view of international law. ...” 39.     The applicant’s lawyer lodged an appeal against the decision of 19   October 2011, arguing, inter alia , that the Moscow City Court had failed to take into consideration the contents of international materials attesting to the existence of a regular practice of mass and flagrant violations of human rights in Uzbekistan which was not limited to human rights activists, religious believers, refugees and asylum-seekers. 40 .     On 19 December 2011 the Supreme Court of Russia upheld the decision of 19   October 2011. It found that the Moscow City Court had reached a reasoned conclusion that there were no grounds preventing the applicant’s extradition to Uzbekistan. It further held that there was no reason to believe that the applicant would run the risk of being subjected to ill-treatment in the event of his extradition to Uzbekistan; that the applicant was a national of Uzbekistan; that he did not have Russian citizenship; that he had not acquired refugee status and had never been persecuted on political or religious grounds in the requesting country; that he resided in Russia without being registered as resident there; and that the criminal prosecution regarding the charges brought against him was not time-barred. D.     Decisions concerning the applicant’s detention 1.     The applicant’s detention with a view to his extradition to Kyrgyzstan 41.     On 3 June 2010 the applicant was arrested in Moscow (see paragraph 21 above). 42.     On 4 June 2010, on the basis of the provisions of Article   61   §   1 of the Minsk Convention and Article 108 of the Russian Code of Criminal Procedure, the Kuzminskiy Inter-District Prosecutor of Moscow ordered the applicant’s detention pending receipt of an extradition request from the Kyrgyzstani authorities. 43.     On 8 July 2010 the Kuzminskiy Inter-District Prosecutor of Moscow ordered the applicant’s detention until 3   August 2010 pending receipt of an extradition request from the Kyrgyzstani authorities. 44.     On 3 August and 2 December 2010 the Kuzminskiy District Court of Moscow extended the applicant’s detention until 3   December 2010 and 3   June 2011 respectively. 45.     On 2 June 2011 the Kuzminskiy Inter-District Prosecutor ordered the applicant’s release from custody as the statutory maximum period for his detention with a view to extradition to Kyrgyzstan had ended. 2.     The applicant’s detention with a view to his extradition to Uzbekistan 46 .     On the same day, however, the Kuzminskiy Inter-District Prosecutor, with reference to the extradition request of 18 April 2011 from the Uzbekistani authorities (see paragraph 32 above), to a detention order of the Gizhduvanskiy District Court of Uzbekistan of 14   September 2010 (see paragraph 20 above) and to Article 466 § 2 of the Russian Code of Criminal Procedure, took a fresh decision to remand the applicant in custody pending his extradition to Uzbekistan. 47.     On 28 June 2011 the Kuzminskiy District Court of Moscow dismissed an appeal by the applicant against that decision, holding that it was lawful and justified. On 12 August 2011 the Moscow City Court quashed the decision of 28   June 2011 on appeal and remitted the matter to the lower court for a fresh examination. 48 .     Following a fresh examination, on 30 August 2011 the Kuzminskiy District Court held that the decision of 2 June 2011 to remand the applicant in custody had been unlawful and unjustified. On the same day the Kuzminskiy District Court refused a request by the prosecutor for the extension of the custodial measure. On 19 September 2011 the Moscow City Court upheld the decision of 30   August 2011 on appeal. 49 .     In a separate set of proceedings, on 29 July 2011 the Kuzminskiy District Court extended the applicant’s detention until 2 December 2011, with reference to Article 109 of the Russian Code of Criminal Procedure. The court noted that the applicant was charged in Uzbekistan with a serious offence punishable by more than one year’s imprisonment under Russian law, that he had absconded from the Uzbekistani authorities and that he had no permanent residence in Russia. Therefore, in the court’s view, the applicant’s continued detention was necessary to secure his extradition to Uzbekistan, as he might flee from the law-enforcement authorities if released. 50.     On 24 August 2011 the Moscow City Court quashed the decision of 29   July 2011 on appeal and remitted the matter to a different bench for fresh consideration. The court further ordered that the custodial measure be maintained until 31   August 2011. 51.     On 31 August 2011 the acting Kuzminskiy Inter-District Prosecutor ordered the applicant’s release, pursuant to the court order of 30 August 2011 (see paragraph 48 above). 52.     In the applicant’s submission, once informed of the prosecutor’s decision of 31   August 2011, he was immediately detained as a suspect under Article 91 of the Russian Code of Criminal Procedure and placed in a temporary detention facility until 2   September 2011. According to the Government, on 31 August 2011 the applicant was released and remained at liberty until 2 September 2011. 53.     On 2 September 2011 the acting Kuzminskiy Inter-District Prosecutor, with reference to Article 466 § 2 of the Russian Code of Criminal Procedure, took a decision to remand the applicant in custody on the basis of the detention order of the Gizhduvanskiy District Court of Uzbekistan of 14   September 2010. 54.     On 31 October 2011 the Kuzminskiy District Court extended the applicant’s detention until 6 March 2012. The Moscow City Court upheld that decision on appeal on 7 December 2011. 55.     On 22 February 2012 the Kuzminskiy District Court extended the applicant’s detention until 2   June 2012. The applicant appealed against that detention order. The results of the examination of his appeal have not been made available to the Court by either party to the proceedings. 56.     On 1 June 2012 the acting Kuzminskiy Inter-District Prosecutor, in view of the expiry of the statutory maximum period for the applicant’s detention as provided for by Article 109 of the Russian Code of Criminal Procedure, took a decision to release the applicant on an undertaking not to leave his place of residence. E.     Refugee proceedings 57.     In the meantime, on 11 February 2011 the applicant had lodged a request with the Russian Federal Migration Service (“the FMS”) for refugee status. He submitted that in the event of his extradition to Kyrgyzstan he, as an ethnic Uzbek, would run a real risk of prosecution on the ground of his nationality. 58.     On 4 May 2011 his application was rejected by the Moscow Department of the FMS. The FMS noted, in particular, that after his entry to Russia on 30   May 2010, the applicant, a national of Uzbekistan, had been arrested by the police on 3   June 2010 as a person wanted by the Kyrgyzstani authorities for having committed a crime under Article 166 § 3 of the Criminal Code of Kyrgyzstan, which corresponded to Article 159 § 4 of the Russian Criminal Code (large-scale fraud). The FMS took note of the fact that the applicant had not applied for refugee status until 11   February 2011. The FMS then examined the political and legal developments in Kyrgyzstan in recent years. It noted that the applicant had not denied the charges brought against him by the Kyrgyzstani authorities, that he had not participated in any inter-ethnic clashes between the Kyrgyz majority and the Uzbek minority in the city of Osh in 2010, and that he had not put forward any evidence of being persecuted by persons belonging to the Kyrgyz majority. The FMS concluded, therefore, that the applicant had left Kyrgyzstan and was unwilling to return there as he wished to avoid criminal prosecution for the crime with which he had been charged, for which reason he was not eligible for refugee status. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution of the Russian Federation 59.     Article 21 of the Constitution provides: “2.     No one shall be subjected to torture, violence or other severe or humiliating treatment or punishment.” 60.     Article 22 reads as follows: “1.     Everyone shall have the right to liberty and security. 2.     Arrest, detention and remanding in custody shall be allowed only on the basis of a court order. A person may not be detained for more than forty-eight hours prior to such an order.” 61.     Article 62 provides: “3.     Foreign nationals and stateless persons shall enjoy in the Russian Federation the rights and bear the obligations of citizens of the Russian Federation, except for cases envisaged by federal law or the international agreements to which the Russian Federation is a party.” 62.     Article 63 reads as follows: “2.     In the Russian Federation it shall not be allowed to extradite to other States those people who are persecuted for political convictions, as well as for actions (or inaction) not recognised as a crime in the Russian Federation. The extradition of people accused of a crime, and also the handing over of convicted persons to serve sentences in other States, shall be carried out on the basis of federal law or the international agreements to which the Russian Federation is a party.” B.     The Criminal Code of the Russian Federation 63.     The Russian Criminal Code provides that foreign nationals and stateless persons residing in Russia who have committed a crime outside its borders can be extradited to a State seeking their extradition with a view to criminal prosecution or the execution of a sentence (Article 13 § 2). C.     The Code of Criminal Procedure of the Russian Federation 64.     The term “court” is defined by the Code of Criminal Procedure 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 as “an official empowered to administer justice” (Article 5 § 54). 65 .     Chapter 12 of the Code (“Arrest of a suspect”) provides that an investigating authority, an investigator or a prosecutor has the right to arrest a person suspected of having committed a criminal offence which is punishable by imprisonment if that person has been caught committing a crime or immediately after having committed a crime; if victims or eyewitnesses have identified that person as the perpetrator of a criminal offence; or if obvious traces or signs of a criminal offence have been discovered on that person or his or her clothes, or with the person or in his or her house. If there are other circumstances giving grounds to suspect a person of having committed a crime, that person may be arrested if he or she has attempted to hide, or does not have a permanent residence, or if the person’s identity has not been established, or if the investigator has submitted to the court a request for the application of a custodial measure in respect of that person (Article 91). 66 .     Article 92 sets out the procedure for the arrest of a suspect. The detention record must be drawn up within three hours of the time the suspect is brought to the investigating authorities or the prosecutor. The detention record must include the date, time, place, grounds and reasons for the arrest. It should be signed by the suspect and the person who made the arrest. Within twelve hours of the time of the arrest the investigator must notify the prosecutor of it in writing. The suspect must be interviewed in accordance with the questioning procedure and a lawyer must be provided to him or her at his or her request. Before the questioning the suspect has the right to a confidential two-hour meeting with a lawyer. 67.     Chapter 13 (“Preventive measures”) governs the use of preventive measures ( меры пресечения ) while criminal proceedings are pending. Such measures include placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be used (Article   108 §§ 1 and 3). An application for detention should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned (Article 108 §   4). 68.     A judge’s decision on detention is amenable to appeal before a higher court within three days after its delivery (Article 108 § 11). The appeal court must determine the appeal within three days of its receipt (Article   108 § 11). 69.     A period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 §   3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 70.     If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article   110). 71.     A preventive measure may be applied with a view to ensuring a person’s extradition in compliance with the procedure established under Article 466 of the CCrP (Article 97 § 2). 72 .     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 the parties to criminal proceedings (Article 125 § 1). The competent court is the court with territorial jurisdiction over the location at which the preliminary investigation is conducted (ibid.). 73.     Chapter 54 of the Code of Criminal Procedure (“Extradition for criminal prosecution or execution of sentence”) regulates extradition procedures (Articles 460-468). 74.     The Russian Federation can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle to stand trial or serve a sentence for a crime punishable under Russian legislation and the laws of the requesting State. An extradition on the basis of the reciprocity principle implies that the requesting State assures the Russian authorities that under similar circumstances it would grant a request by Russia for extradition (Article   462 §§ 1 and 2). 75.     Extradition can take place where (i) the actions in question are punishable by more than one year’s imprisonment or a more severe sentence; (ii) the requested individual has been sentenced to six months’ imprisonment or a more severe punishment; and (iii) the requesting State guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request, that upon completion of the criminal proceedings and the sentence he or she would be able to leave the territory of the requesting State freely and that he or she would not be expelled or extradited to a third State without the permission of the Russian authorities (Article 462 § 3). 76.     The Russian Prosecutor General or his or her deputy decides upon the extradition request (Article 462 § 4). The decision by the Russian Prosecutor General or his or her deputy may be appealed against before a regional court within ten days of receipt of the notification of that decision ( Article 463 § 1). In that case the extradition order should not be enforced until a final judgment is delivered (Article 462 § 6). If several foreign States request a person’s extradition the decision on which of the requests should be granted is taken by the Prosecutor General of the Russian Federation or his or her deputy. The requested person should be informed of the relevant decision in writing within twenty-four hours (Article   462 § 7). 77.     The regional court, sitting as a bench of three judges, verifies the lawfulness and well-foundedness of the extradition decision within one month of the receipt of the appeal, in a public hearing in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article   463 § 4). 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 applicable international and domestic law ( Article 463 § 6). The court decides either to declare the extradition decision unlawful and to quash it or to dismiss the appeal ( Article 463 § 7). The regional court’s decision can be appealed against before the Russian Supreme Court within seven days of its delivery ( Article 463 § 9). 78.     Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be denied: a Russian citizen (Article 464 § 1 (1)) or a person who has been granted asylum in Russia (Article 464 § 1 (2)); a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1 (3)); a person in respect of whom criminal proceedings cannot be instituted or a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground in Russian law (Article 464 § 1 (4)); or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation and international treaties of the Russian Federation (Article 464 §   1 (5)). Finally, extradition should be refused if the act that serves as the basis for the extradition request does not constitute a criminal offence under the Russian Criminal Code (Article 464 § 1 (6)). 79.     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). 80 .     If a request for extradition is accompanied by an arrest warrant issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article   466   §   2). D.     Relevant case-law of the Constitutional Court and the Supreme Court of Russia 81 .     On 4 April 2006 the Constitutional Court of Russia (“the Constitutional Court”) examined an application by a Mr   N., who had submitted that the lack of any limitation in time on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention. In its decision no. 101-O of the same date, the Constitutional Court declared the application inadmissible. In its view, the absence of any specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 §   1 of the Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, which in the case of Russia was the procedure laid down in the Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in Chapter 13 of the Code (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. Accordingly, Article 466 § 1 of the Code did not allow the authorities to apply a custodial measure without complying with the procedure established in the Code or the time-limits fixed in the Cod