CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 mai 2010

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Russia (application no. 52466/08)   EXTRADITING THE APPLICANT TO TAJIKISTAN WOULD VIOLATE THE CONVENTION   Unanimously:   Violation of Article 3 (prohibition of inhuman or degrading treatment) if applicant extradited to Tajikistan Violation of Article 5 § 1 and 5 § 4 (right to liberty and security) of the European Convention on Human Rights.     Principal facts   The applicant, Zikrullokhon Khodzhayev, is a Tajikistani national who was born in 1977 and lives in Khunzhand, Tajikistan. He is currently detained in Moscow with a view to his extradition to Tajikistan.   Criminal proceedings were brought against him by the Ministry of Security of Tajikistan in June 2000 on suspicion of membership in an illegal extremist-religious party. An arrest warrant was drawn in his name, however the investigation was suspended because Mr   Khodzhayev’s whereabouts were unknown. He fled Tajikistan for Moscow in   2001. According to the Russian authorities, in February 2002, the Tajik Prosecutor General asked that he be extradited to Tajikistan following which the Russian police started searching for him.   On 28 November 2007, Mr Khodzhayev was arrested in Moscow and questioned on the same day. He complained that during the questioning he was not informed of the reasons for his arrest. The Russian Government maintained that the applicant had declined an interpreter and had signed a statement acknowledging that he was aware that a criminal case was pending against him in Tajikistan.   On 30 November 2007, the domestic court placed the applicant in custody pending his extradition. Mr Khodzhayev’s extradition was ordered in June 2008 by the Russian prosecuting authorities upon a request by the Tajik Prosecutor General made in December 2007. On 28 December 2007, the courts ordered anew Mr Khodzhayev’s detention. He challenged the extradition order in court, unsuccessfully.   In January 2008, Mr Khodzhayev applied for political asylum which was refused by the immigration authorities in May the same year. He appealed against the refusal in court. While the applicant submitted that, to his knowledge, those proceedings were still pending; the Government indicated that they ended with a decision dismissing his appeal against the decision not to grant him an asylum.     Complaints, procedure and composition of the Court   Relying in particular on Articles 3 and 5, Mr Khodzhayev complained of a serious risk of him being ill-treated if extradited to Tajikistan, as well of various breaches of his right not to be arbitrarily detained.   The application was lodged with the European Court of Human Rights on 31 October 2008.   Judgment was given by a Chamber of seven, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Giorgio Malinverni (Switzerland), judges , and Søren Nielsen , Section Registrar .     Decision of the Court   Ill-treatment (Article 3)   The Court examined first the general political climate in Tajikistan. It noted that information provided by many objective sources, such as the United Nations Committee Against Torture, Amnesty International, Human Rights Watch and the United States Department of State, undoubtedly illustrated that the over-all human rights situation in Tajikistan gave rise to serious concerns. In particular, detainees were often kept in unrecorded detention without access to a lawyer or medical assistance and interrogation methods were at odds with international legal standards. The fact that Tajikistan had ratified major international human rights documents was not in itself enough to exclude the risk of Mr Khodzhayev being ill ‑ treated there.   The Court then noted that Mr Khodzhayev was wanted by the Tajik authorities as they had accused him of being a member in a banned extremist-religious organisation. Relying on the reports of various independent international sources, the Court found that there were serious reasons to believe that members or supporters of that religious organisation were persecuted in Tajikistan. The diplomatic assurances that Mr Khodzhayev would not be ill ‑ treated, provided by the Tajik Government, had been rather vague and, in any event, were not in themselves sufficient to guarantee that ill-treatment would not take place. That conclusion was supported by numerous reliable sources reporting that practices contrary to the Convention were either tolerated or used by the Tajik authorities. Consequently, there was a high probability that the applicant would risk being ill-treated if extradited to Tajikistan.   The Court finally noted that, when examining Mr Khodzhayev’s appeals against the extradition order, the Russian courts had not addressed duly his complaint that he was persecuted on political grounds in Tajikistan, despite him having raised that already five months earlier before the Russian immigration authorities.   The Court held therefore that extraditing Mr Khodzhayev to Tajikistan would violate Article 3.   Detention (Article 5 § 4)   The Court noted that on 28 December 2007 the domestic courts had ordered Mr   Khodzhayev detention in custody a second time, instead of prolonging his initial detention of 30 November 2007 which had been still valid at the time. The domestic law did not envisage a possibility to appeal against a second consecutive decision to place a person in custody.   In addition, Mr Khodzhayev had spent more than ten months in detention pending extradition. The Government had not referred to specific legal provisions which Mr   Khodzhayev could have used in order to ask for review of the lawfulness of his detention. The Court recalled that it had found earlier on numerous occasions that the Code of Criminal procedure did not allow those detained with a view to extradition to bring proceedings challenging the lawfulness of their detention if the prosecutor had not asked before that their detention be extended. Further, as the applicant was not a party in criminal proceedings before the Russian courts, he could not challenge his detention using the relevant domestic law provisions. Consequently, the Court found that, throughout his detention pending extradition, Mr Khodzhayev could not have brought proceedings for judicial review of the lawfulness of his detention, in violation of Article 5 § 4.   Detention (Article 5 § 1)   The Court noted that , following the Tajik authorities request for the applicant’s extradition, Mr   Khodzhayev had been detained by a Russian court twice, on 30 November 2007 and 28   December respectively. However, his detention had not been extended by a court after the 28 December 2007. Therefore, as from 29 May 2008 (six months after his initial detention), the applicant had been detained in breach of the relevant domestic law which allowed a maximum of six months detention in the absence of a court decision extending it.   The Court therefore held that there had been a violation of Article 5 § 1.   The Court dismissed all the other complaints of the applicant.   Article 41   Under Article 41 (just satisfaction), the Court held that Russia was to pay Mr Khodzhayev 15,000   euros (EUR) in respect of non-pecuniary damage.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   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.