CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 24 avril 2008

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   295 24.4.2008   Press release issued by the Registrar   CHAMBER JUDGMENT ISMOILOV AND OTHERS v. RUSSIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Ismoilov and Others v. Russia (application no. 2947/06).   The Court held by six votes to one: that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the applicants were extradited to Uzbekistan; that there had been a violation of Article 6 § 2 (presumption of innocence); And further held unanimously: that there had been a violation of article 5 § 1 (right to liberty and security); and, that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court).   Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant 15,000   euros (EUR) in respect of non-pecuniary damage and a total of EUR   17,709 for costs and expenses (sums ranging from EUR   195 to EUR   1,694). (The judgment is available only in English.)   1.     Principal facts   The applicants are a Kyrgyz national: Mamirgon Tashtemirov; and, 12 Uzbek nationals: Ilhomjon Ismoilov, Rustam Naimov, Izzatullo Muhametsobirov, Abdurrauf Muhamadsobirov, Sardorbek Ulughodjaev, Obboskhon Makhmudov, Umarali Alimov, Kabul Kasimhujayev, Hurshid Hamzaev, Iskanderbek Usmanov, Shkrullo Sabirov and Mahmud Rustamhodjaev. Most of the applicants are natives of Andijan, a town in Uzbekistan. They are all Muslims and involved in private business. Between 2000 and 2005 they fled to Russia out of fear of being persecuted for their religious beliefs and business activities.   The case concerned the applicants’ complaint about the   Russian authorities’ decision to extradite them to Uzbekistan, where they allegedly risk ill-treatment and an unfair trial.   In the summer of 2004 a number of businessmen were arrested in Andijan on suspicion of involvement with Akramia, an organisation considered by the Uzbek Government to be an extremist religious group and a branch of an Uzbek terrorist organisation, Hizb-ut-Tahrir. On 13 May 2005, armed men attacked Andijan’s prison and freed the businessmen. They also attacked military barracks, occupied a government building and took hostages. The same day, security forces shot indiscriminately into a crowd of civilians who had gathered in the main square to demonstrate about poverty and injustice. Hundreds were killed, including women and children. The Uzbek authorities blamed the events, in particular, on Akramia and Hizb-ut-Tahrir. Numerous trials were held, only one of which was public and which was criticised by international organisations for falling far short of international standards.   In June 2005 the applicants were arrested in Ivanovo (Russia) on suspicion of having financed the rebellion in Andijan on 13 May and detained pending extradition. Charges had been brought against the applicants in Uzbekistan for, in particular, membership of extremist organisations and attempting to overthrow the constitutional order of Uzbekistan. In July 2005 the Uzbek authorities requested Russia to extradite the applicants with the undertaking that they would not be sentenced to the death penalty or subjected to torture or any other form of inhuman or degrading treatment.   The applicants denied any involvement in the Andijan massacre. They stated that they feared persecution and ill-treatment if they were returned to Uzbekistan. They claimed that, after their arrest in Russia, Uzbek officials had told them that, if extradited, they would be tortured. Mr   Muhamadsobirov and Mr Naimov further claimed that they had previously been detained in Uzbekistan by the security forces and had been repeatedly beaten and their families threatened. Other applicants’ relatives or business partners had been arrested and charged with participation in illegal extremist organisations.   The applicants made numerous requests for release, all without success. The Russian courts rejected the applicants’ claims on the ground that Article 109 of the Code of Criminal Procedure governing placement in custody did not set any time-limits for detention with a view to extradition or any procedure for its extension. In August 2006 Ivanovo Regional Court also dismissed the applicants’ requests on the ground that they could only be examined in civil proceedings. In March 2007 the same court then upheld on appeal a decision which found that the requests had to be examined in criminal proceedings. The authorities consistently refused, however, to allow the applicants to be a party to criminal proceedings on the ground that there was no criminal case against them in Russia. Ultimately in March 2007, the courts, of their own accord, ordered the applicants’ release on the ground that, under Article 109, the maximum detention period had already expired.   The applicants also made a request for refugee status which was rejected in March 2006. That refusal was subsequently upheld by the Russian courts, despite a decision in July 2006 by the United Nations High Commissioner for Refugees to grant the applicants mandate refugee status [2] .   Between 27 July and 1 August 2006, the Russian authorities issued decisions to extradite the applicants on the ground that they had “committed the following offences […]: attempted overthrow of the constitutional order […], murder, terrorism […] and organised mass disorders in Andijan”.   On 7 August 2006, under Rule 39 of the Rules of Court (interim measures), the European Court of Human Rights asked Russia to stay the applicants’ extradition until further notice.   The applicants’ request to the Russian authorities for temporary asylum on humanitarian grounds is currently awaiting decision.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 18   January 2006 and declared partly admissible on 12 December 2006.   The President granted leave to Human Rights Watch and the AIRE Centre to intervene in the proceedings as third parties.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Anatoly Kovler (Russian), Elisabeth Steiner (Austrian), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), Giorgio Malinverni (Swiss), George Nicolaou (Cypriot), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [3]   Complaints   Relying on Article 3 (prohibition of torture and inhuman or degrading treatment) and Article   6 § 1 (right to a fair trial), the applicants complained about the   Russian authorities’ decision to extradite them to Uzbekistan where they allegedly risk ill-treatment and an unfair trial. Further relying on Article 5 §§ 1 and 4 (right to liberty and security), they also complained that their detention pending extradition was unlawful and that there was no effective judicial review of their detention. They further alleged that the decisions to extradite them stated that they had committed criminal offences, notably acts of terrorism,   in Uzbekistan, in breach of Article 6 § 2 (presumption of innocence).   Decision of the Court   Article 3   The Court noted that Uzbek officials had threatened the applicants with torture.   Indeed, evidence from a number of objective sources demonstrated that ill-treatment of detainees persisted in Uzbekistan. In 2002 the UN Special Rapporteur on Torture had described the practice of torture in police custody as “systematic” and “indiscriminate”. In 2006 no improvement was reported. The same year the UN Secretary General had also drawn attention to the continuing problem of widespread mistreatment of prisoners and complained that inadequate measures had been taken to bring those responsible to justice. Moreover, no concrete evidence had been produced of any recent improvement in combating the practice of torture in Uzbekistan.   Moreover, Amnesty International considered individuals accused of being involved in the unrest in Andijan to be at an increased risk of ill-treatment. The UN High Commissioner for Human Rights and the UN Special Rapporteur on Torture had both urged governments to refrain from returning such individuals to Uzbekistan where they would risk being tortured. Human Rights Watch, the AIRE Centre, the UN Secretary General and Amnesty International all confirmed that most of the men forcibly returned to Uzbekistan after the events in Andijan of May 2005 had been held in incommunicado detention, with the increased risk of ill-treatment which that implied.   The Court also found it significant that the applicants had all been granted mandate refugee status, which was a decision based on whether the applicants’ fear of persecution and ill-treatment in Uzbekistan had been well-founded.   The Court was therefore persuaded that ill-treatment of detainees was a pervasive and enduring problem in Uzbekistan and, if returned there, the applicants would be at a real risk of being subjected to ill-treatment.   Given that the practice of torture in Uzbekistan was described by reputable international experts as systematic, the Court was not persuaded that the Uzbek authorities’ diplomatic assurances had offered a reliable guarantee of the applicants’ safety. Accordingly, the applicants’ forcible return to Uzbekistan would give rise to a violation of Article 3 as they would face a serious risk of being subjected to torture or inhuman or degrading treatment.   Article 6 § 1   Given the finding under Article 3, the Court considered that it was not necessary to examine separately whether, if the applicants were extradited to Uzbekistan, there would also be a violation of Article 6.   Article 5 § 1   The Court noted that Russian domestic law governing placement in custody was inconsistent. In particular, the domestic courts had held that Article 109 could not be applied in the applicants’ case as domestic law had not set any time-limits for detention with a view to extradition or any procedure for its extension. However, the very same courts ordered the applicants’ release with reference to Article 109 on the ground that the maximum detention period had already expired.   The Court found that the Russian legal system lacked clear legal provisions with which to establish a procedure for ordering, extending and setting time-limits for detention with a view to extradition and had therefore failed to protect the applicants from arbitrary detention, in violation of Article 5   § 1.   Article 5 § 4   The Court noted that the applicants had spent more than 20 months in custody and that they had therefore been entitled, under Article 5 § 4, to apply to a “court” with jurisdiction to decide “speedily” whether new factors had emerged which had made the initial decision to detain them “unlawful”.   However, all of the applicants’ attempts to have their requests for release examined in civil or criminal proceedings had failed. The possibility of bringing civil proceedings had been ruled out by the courts on the ground that the applicant’s detention had been within the remit of criminal law. However, on having brought criminal proceedings, the applicants’ claims had been repeatedly refused on the ground that there had been no criminal case against them in Russia. The applicants had been caught in a vicious circle of shifted responsibility where no domestic court, civil or criminal, had been capable of reviewing the alleged unlawfulness of their detention. Nor had the applicants been able to obtain a review of their detention under Article 109 as only the prosecutor could bring such proceedings.   The Court therefore concluded that for 20 months the applicants had not had at their disposal any procedure for judicial review of their detention, in violation of Article 5 § 4.   Article 6 § 2   The applicants’ extradition decisions had declared that the applicants should be extradited because they had “committed” acts of terrorism and other criminal offences in Uzbekistan. That statement had represented as an established fact, without qualification or reservation, that the applicants had committed the crimes they had been accused of, without even mentioning that they had denied their involvement. The wording of the extradition decisions had therefore amounted to a declaration of the applicants’ guilt which would encourage the belief that they were guilty and which prejudged the assessment of the facts by the relevant judicial authority in Uzbekistan.   By upholding the extradition decisions without altering their wording, the Russian courts had further failed to rectify that defect. There had therefore been a violation of Article 6 § 2.   Judge Kovler expressed a partly dissenting opinion, which is annexed to the judgment. ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] A mandate refugee is a person who has been granted protection by UNHCR in another country. [3] This summary by the Registry does not bind the Court.