Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Tajikistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Nicolas Bratza;Ksenija Turković

The applicant was born in 1985. He is presently serving a prison sentence in Tajikistan.

Until 2006 the applicant was living in his native village of Navgilem in the Sogdiskaya Region of Tajikistan. He was a merchant at the local food market.

The events preceding the applicant’s departure from Tajikistan were described by him as follows.

From 2002 to 2005 the applicant attended a mosque, where he was studying the Quran under the tutorship of Mr S. Marufov. The latter was detained by local police and died in detention in May 2006. Before his death Mr Marufov had reportedly been ill-treated (see paragraph 102 below).

Following Mr Marufov’s death, the Tajik authorities started targeting his followers. The applicant fled the country, fearing prosecution on grounds of his religious activities.

The applicant arrived in Russia in June 2006 and made a living from various low-skilled jobs in the Moscow suburbs.

On 7 November 2006 the Prosecutor’s Office of Tajikistan brought criminal proceedings against the applicant and authorised his detention pending trial. The applicant was charged under Articles 186 § 2 and 187 § 2 of the Criminal Code of Tajikistan with forming, some time in 1992, together with several other individuals, a “criminal conspiracy” named “Bayat” (Байъат), which later joined a “criminal armed group” named “the Islamic Movement of Uzbekistan” (“the IMU”). The second charge against the applicant concerned his alleged involvement in an armed attack carried out on 27 September 2006 on three members of the regional parliament.

On the same date the Tajik Prosecutor’s Office issued a warrant for the applicant’s arrest based on the charges mentioned above and put his name on the list of “wanted persons”.

The Russian police apprehended the applicant on 21 November 2009 in Moscow pursuant to an international search warrant issued by the Tajik authorities. He remained in detention pending extradition until 21 May 2011 (see paragraphs 3236 below).

On 21 December 2009 and 29 March 2010 the Deputy Prosecutor General of Tajikistan asked his Russian counterpart to order the applicant’s extradition to Tajikistan.

On 17 June 2010 the Deputy Prosecutor General of Russia ordered the applicant’s extradition. He found, inter alia, that the applicant had been charged in Tajikistan with involvement since 1992 in a criminal organisation, the IMU. The Deputy Prosecutor General also noted that at the end of 2005 the applicant had moved to Russia, where he had founded an armed cell of the IMU and that in 2006 he had transferred up to 5,000 United States dollars per month to the IMU leaders in Tajikistan, thus fuelling their terrorist activities, such as the murdering of State officials. The Deputy Prosecutor General considered that the applicant’s acts were also punishable under the Russian Criminal Code and that his extradition could not be prevented by a crime he may have committed in Moscow, since no investigation or prosecution had been initiated in that respect. Nor did he find any obstacle to the applicant’s extradition in either international treaties or legislation of the Russian Federation.

The applicant complained about the extradition order to the Moscow City Court (“the City Court”), stating that the Tajik authorities would subject him to torture with a view to making him confess to a crime he had not committed. He cited extensive case-law of the Court establishing the risk of torture to which certain applicants in a similar position would have been subjected in the event of extradition to that country (Khodzhayev v. Russia, no. 52466/08, 12 May 2010, and Khaydarov v. Russia, no. 21055/09, 20 May 2010). The applicant also emphasised the contradictions and even the absurdity of certain charges brought against him in Tajikistan, according to which he had been actively involved in terrorist activities since 1992 when he was still a small child.

The Deputy Prosecutor General provided the City Court with a letter signed by his counterpart in Tajikistan, which contained, inter alia, the following assurances:

“We guarantee that in accordance with the norms of international law [the applicant] will be provided with all opportunities to defend himself in the Republic of Tajikistan, including through the assistance of a lawyer. He will not be subjected to torture or cruel, inhuman or degrading treatment or punishment (European Convention for the Protection of Human Rights and Fundamental Freedoms, and relevant United Nations and Council of Europe conventions and protocols thereto).

The Criminal Code of Tajikistan does not provide for the death penalty in respect of the crimes imputed to [the applicant].

The Prosecutor General’s Office of Tajikistan guarantees that the aim of the extradition request in respect of [the applicant] is not his persecution on political grounds, or for reasons of his race, religious beliefs, nationality or political opinions.

... Tajikistan undertakes to prosecute [the applicant] only for the crimes which constitute the basis of his extradition and that [the applicant] will not be handed over to a third State without the consent of the Russian Federation and will be free to leave the territory of the Republic of Tajikistan after having served his sentence.”

On 29 October 2010 the City Court held a public hearing. It allowed the request by the defence to question Ms E. Ryabinina, in her capacity as expert of the Russian Human Rights Institute, about the situation in Tajikistan. The expert responded to the questions at the public hearing, explaining the details of four recent judgments delivered by the Court in connection with the prospective extradition to Tajikistan of the applicants concerned and the legal implications for the Russian Federation (Khodzhayev, cited above; Khaydarov, cited above; Iskandarov v. Russia, no. 17185/05, 23 September 2010; and Gaforov v. Russia, no. 25404/09, 21 October 2010).

By a judgment adopted on the same date, the City Court upheld the extradition order, finding no obstacle to the applicant’s extradition to Tajikistan. The applicant’s arguments, based on Russia’s obligations under the Convention and the Court’s case-law, were dismissed by the City Court in the following terms:

“... the arguments that the applicant might be persecuted on religious grounds and regarding a serious risk of torture in the course of criminal prosecution in Tajikistan ... are considered by the court to be unfounded since those arguments constitute assumptions that are in no way corroborated; quite to the contrary, they are completely rebutted by the case materials, which have been examined by the court, and in particular by the written guarantees provided by the Deputy Prosecutor General of the Republic of Tajikistan ...

The arguments ... that torture and persecution on religious and political grounds take place in the Republic of Tajikistan as confirmed by documents of the European Court of Human Rights and other organisations for the defence of human rights ... are considered by the court to be unfounded, as those documents relate to other persons, but not to [the applicant]; moreover, those arguments are negated by the aforementioned written guarantees of the Tajik Prosecutor’s Office.”

On 9 December 2010 the Supreme Court upheld the City Court’s decision. The applicant’s argument that his extradition would violate Article 3 of the Convention was dismissed by the Supreme Court by sole reference to the text of the written guarantees provided by the Tajik Prosecutor’s Office.

On 22 December 2009 the applicant applied to the Moscow City branch of the Russian Federal Migration Service (“the FMS”) for refugee status. He argued that he had been persecuted in Tajikistan on the grounds of his religious beliefs and that he would be subjected to torture in the event of extradition.

On 26 April 2010 the Moscow City branch of the FMS dismissed the application. The applicant was notified of the decision on 12 May 2010.

On 26 August 2010 the Deputy Director of the FMS dismissed an appeal lodged by the applicant against that decision. He reminded the applicant that the IMU was considered by the supreme courts of both Tajikistan and Russia as an organisation carrying out terrorist activities. While noting the extensive international criticism of the use of torture and the impunity of the State officials responsible in Tajikistan, the Deputy Director of the FMS found no well-founded reason for fearing that the applicant would be persecuted on religious grounds. Noting that the great majority of the population of Tajikistan were Muslims, he found it unlikely that the applicant would be persecuted solely on the basis of his Islamic beliefs. As to the authorities’ attempt to strengthen control over religious beliefs, this was considered to be pursuing the understandable aim of limiting the influence of radical Islam, including the IMU. He concluded that the applicant was not eligible for refugee status and that his application had been motivated by his intention to escape criminal liability in Tajikistan. He noted at the same time that the existence of a well-founded fear of becoming a victim of torture or ill-treatment might be a ground for granting the applicant temporary asylum in Russia under section 12 of the Refugees Act.

On 1 October 2010 the applicant appealed against the FMS’s decision to the Basmanniy District Court of Moscow. He argued that the FMS had not made a thorough and adequate analysis of the situation in Tajikistan and taken due account of the information provided by various international sources in that connection. He further submitted that the FMS had presumed him guilty of the offences that had been imputed to him by the Tajik authorities and had in effect upheld the version of the facts as presented by the Tajikistan Prosecutor’s Office.

On 10 November 2010 the Basmanniy District Court upheld the FMS’s decision of 26 August 2010. It referred to the arguments contained in that decision, finding them convincing and considering that the applicant had failed to provide evidence to the contrary. On 6 December 2010 the court’s decision was upheld on appeal by the Moscow City Court.

On 24 May 2011 the applicant applied to the FMS for temporary asylum in Russia. On 2 June 2011 the UNHCR Office in Russia informed the applicant’s representative that he met the criteria established by its statute and was eligible for international protection under its mandate.

On 6 September 2011 the Moscow City branch of the FMS granted the applicant temporary asylum in Russia and issued a certificate to that effect. The certificate was recorded under reference ВУ № 0004219 and delivered to the applicant on 8 September 2011 in his lawyer’s presence.

Following the applicant’s apprehension in Moscow (see paragraph 17 above), on 23 November 2009 the Meshchanskiy District Court of Moscow ordered his detention pending extradition.

On 15 January 2010 the same court extended the applicant’s detention until 21 May 2010. The applicant lodged an appeal against that decision on 1 February 2010. It was dismissed by the City Court on 22 March 2010.

On 17 May 2010 the Meshchanskiy District Court further extended the applicant’s detention until 21 November 2010. The applicant appealed against that decision on 19 May 2010. The City Court dismissed the appeal on 12 July 2010.

On 19 November 2010 the City Court further extended the applicant’s detention until 21 May 2011. On 22 November 2010 the applicant lodged an appeal against that decision, which was dismissed by the Supreme Court of Russia on 21 December 2010.

On 20 May 2011 the Meshchanskiy District Prosecutor ordered the applicant’s release under a personal guarantee provided by his lawyer in accordance with Article 103 of the Code of Criminal Procedure.

According to the applicant’s written testimony and the complementary information collected by his representatives from witnesses and other available sources, his abduction and transfer to Tajikistan took place as follows.

At around 9 or 10 p.m. on 31 October 2011 the applicant and a friend were driving in the south-west district of Moscow when their car was blocked by a mini-van in Michurinskiy avenue. According to the details provided by the applicant’s lawyer to the police and investigative authorities, the incident took place between 11.30 and 11.45 p.m. at 15, Vernadskiy avenue in Moscow. The applicant and his friend got out of the car and tried to escape. They were followed by three or four unidentified men who fired two shots. The applicant’s friend managed to escape, while the applicant was stopped, beaten up with a truncheon and forced into the minivan by the same men, who did not identify themselves.

The applicant was kept in the mini-van for a night and a day. The individuals who had apprehended him subjected him to torture and illtreatment. They beat him up, put a gun to his head and threatened to kill him unless he agreed to return to his home country. The applicant showed them the temporary asylum certificate delivered by the FMS, but they just laughed at him in response. The person who put questions to the applicant was of Tajik origin.

In the evening of the following day the applicant was taken by his kidnappers directly to the airfield of Moscow’s Domodedovo airport, without going through the usual border and customs formalities and security checks. The applicant was handed over to a Tajik patrol, who forced him into a nearby aircraft without presenting a ticket or any travel documents.

At around 4 a.m. the next day, the aircraft arrived at the airport of Khujand in Tajikistan, where the applicant was handed over to the Tajik authorities. His requests for a lawyer were refused. According to the written testimony of the applicant’s father, the applicant was detained and questioned for an unspecified period of time at Khujand police station. The applicant’s father testified in writing that police officers, one of whom was identified as S. M., had severely ill-treated the applicant in order to make him confess to crimes he had never committed and state that he had come back to Tajikistan voluntarily. He further testified that on 20 December 2012 the investigator, R.R., had refused to allow him to meet with his son in detention, referring to the father’s failure to help the authorities apprehend the applicant and bring him back to the country.

The Government’s submissions in respect of the applicant’s account of the facts were limited to the following.

Following enquiries from the Court, letters received from the Government dated 18 November 2011 and 29 February 2012 contained no information about the applicant’s whereabouts or his crossing of the State border. The Government further submitted that the applicant’s rights and freedoms had not been restricted in any way after his release on 20 May 2011, that the law had not obliged the authorities to ensure any surveillance over the applicant, that his extradition or expulsion had been suspended pursuant to the interim measures ordered by the Court and that he had not, therefore, been handed over to Tajikistan through the extradition procedure.

On 5 April 2012 the Government retransmitted the official information provided on 26 March 2012 by the Prosecutor General of Tajikistan to his Russian counterpart, according to which the applicant had “voluntarily surrendered” on 3 November 2011 to the Sogdiyskiy Regional Department for the Fight against Organised Crime (РОБОП) and had been detained in temporary detention facility no. 2 (СИЗО №2) of Khujand.

According to the latest information received from the Government on 25 February 2013, the inquiry into the applicant’s abduction and transfer was still pending.

Once informed of the applicant’s abduction on the evening of 31 October 2011, his representatives immediately contacted the competent Russian authorities, asking them to take urgent measures to prevent the applicant’s forcible removal from Russian territory.

Between 3 and 5 a.m. on 1 November, Ms E. Ryabinina faxed four formal requests to that effect to the head of the Moscow City Police Department, the Director of the FMS, the Prosecutor General and the Representative of the Russian Federation at the Court, respectively. She also solicited the assistance of the Commissioner for Human Rights of the Russian Federation.

In her letter to the head of the Moscow City Police Department, the applicant’s representative stated the circumstances of the applicant’s abduction. She also reminded him of the applicant’s legal status as a person to whom temporary asylum had been granted by the FMS and interim measures had been applied by the Court to prevent his extradition. The letter concluded as follows:

“In view of [those circumstances] there are weighty reasons to fear that an abduction attempt has been made in respect of [the applicant] with a view to his subsequent illegal transfer from Russia to Tajikistan, whose authorities have requested his extradition for criminal prosecution.

The situation is aggravated by the fact that the applicant’s brother [Sh. T.] disappeared on 8 September in Moscow and, according to the information provided by his wife, was remanded in custody on 13 September in Khujand, the Republic of Tajikistan, where he is still being detained. Some time earlier, on 23 August of this year, two other asylum seekers who had been protected against forcible transfer by [the interim measures decided by] the European Court, disappeared in Moscow: a Tajik national, S.K., and an Uzbek national, M. A. They were both transferred to Tajikistan and remanded in custody. Any claim that they left voluntarily must be excluded as they did not have any documents permitting them to cross the State border of the Russian Federation: M. A.’s national passport was being held by the Moscow branch of the FMS, while S.K. had lost his passport several years previously. ...”

On the same day, the Commissioner for Human Rights of the Russian Federation also sent a letter to the head of the Moscow City Police Department, which read as follows:

“... There are well-founded reasons to fear that an attempt might be made illegally to transfer [the applicant] to Tajikistan, where his life is threatened.

Today, 1 November 2011, [the applicant’s representative] asked you to take urgent measures in order to prevent [the applicant’s] forcible transfer from the territory of the Russian Federation, and above all, through the airports of Moscow.

I ask you to consider the [above] request as soon as possible and to take all possible measures with a view to finding [the applicant] and preventing his forcible transfer from the territory of the Russian Federation.

I ask you to inform me of the results following your consideration of the request.”

There is no information about any protective measure taken by the authorities concerned in response to any of those requests.

On 7 November 2011 the Office of the Representative of the Russian Federation at the Court replied to the applicant’s representative that pursuant to the interim measures taken by the Court, the Russian authorities were abstaining from his extradition and that the relevant instruction had been sent to the Federal Service for the Execution of Sentences (ФСИН), the Prosecutor General and the Ministry of the Interior.

Following the applicant’s complaint about his abduction in the present case and similar events in certain other cases, on 25 January 2012 the Registrar of the Court sent a letter to the Representative of the Russian Federation at the Court. The letter read as follows:

“The President of the Court, Sir Nicolas Bratza, has instructed me to express on his behalf his profound concern at the applicant’s disappearance in Russia and his subsequent transfer to Tajikistan notwithstanding the interim measures indicated under Rule 39 of the Rules of Court.

The President has noted that since the Court’s judgment in the Iskandarov case (no. 17185/05, 23 September 2010) where it held the Russian Federation responsible for a violation of Article 3 on account of the applicant’s unexplained abduction and transfer to Tajikistan by unidentified persons, the Court has been confronted with repeated incidents of that kind in four other cases, including the above-mentioned case (the other three cases are: Abdulkhakov v. Russia, no. 14743/11; S.K. v. Russia, no. 58221/10; and Zokhidov v. Russia, no. 67286/10). The explanations so far provided by the Government do not clarify how applicants could against their will be moved across the Russian State border notwithstanding the Government’s official assurances that no extradition would be effected pending examination of their cases by the Court.

The President is deeply disturbed at those developments. He is particularly concerned about their implications for the authority of the Court and possible continuation of such unacceptable incidents in cases of other applicants to whom the interim measures still apply on account of the imminent risk of violation of their rights under Articles 2 and 3 of the Convention in the countries of destination. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately.

The President also notes that the Court’s Chamber has requested additional observations from the Government to address this worrying and unprecedented situation and expects the Russian competent authorities to provide the Court with exhaustive information about the follow-up given to the incidents in the Russian Federation. In the meantime, your authorities’ attention is drawn to the fact that interim measures continue to apply under Rule 39 in twenty-five other Russian cases concerning extradition or expulsion. Those cases are listed in appendix to the present letter.”

On 5 March 2012 the Representative of the Russian Federation at the Court informed the Registrar in response that appropriate information would be submitted “upon receiving the necessary data from the relevant authorities”.

On 30 November and 2 December 2011 the Ministry of the Interior informed the applicant’s representative that her complaint about the applicant’s abduction had been sent to the Moscow South-West Police Department (УВД по Юго-Западному АО ГУ МВД России по г. Москве) and then to the Gagarinskiy Inter-District Investigation Division of the South-West Administrative Circuit of Moscow (Гагаринский МСО СУ по ЮЗАО ГСУ СК РФ). On 30 December 2011 the latter decided to transmit the file to the Nikulinskiy Inter-District Investigation Division of the South-West Administrative Circuit of Moscow (Никулинский МСО СУ по ЮЗАО ГСУ СК РФ по г. Москве – hereinafter referred to as “the Nikulinskiy Investigation Division”).

Under Article 144 of the Code of Criminal Procedure, the senior investigator of the Nikulinskiy Investigation Division, P.K., conducted a pre-investigation inquiry (проверка сообщения о преступлении – “the inquiry”).

On 21 March 2012 P. K. refused to open a criminal investigation in respect of the applicant’s alleged abduction on the grounds of absence of corpus delicti. After a brief recapitulation of the facts, as presented by the applicant’s representative, the senior investigator concluded as follows:

“... having analysed the materials of the inquiry, the investigating authority finds at present no evidence of crime under Articles 126 and 127 of the Criminal Code of the Russian Federation, because it has not been objectively established whether the applicant remains on the territory of the Russian Federation or has crossed the border of the Russian Federation. Information has also been received in the course of the inquiry that no shootings or abductions of persons have been reported on the territory where [the applicant] was allegedly abducted. The investigating authority does not exclude the possibility that following [the applicant’s] release from detention he might have staged his abduction with a view to escaping criminal liability for crimes he had committed on the territory of the Republic of Tajikistan.”

On the same day the head of the Nikulinskiy Investigation Division, S.K., quashed the above decision and sent the case back to the same senior investigator for a further inquiry. His decision was reasoned as follows:

“The investigator’s refusal to institute criminal proceedings is unfounded and must be quashed. In the course of a further inquiry it is necessary to obtain replies to all requests for information that were sent on the matter and to proceed to an additional interview of [the applicant’s representative].”

On 27 March 2012 the head of the First Division for Procedural Supervision of the Moscow Directorate General of Investigation (ГСУ СК России по г. Москве) also requested a further inquiry into the matter. Furthermore, on 30 March 2012, the deputy to the Nikulinskiy Inter-District Prosecutor (заместитель Никулинского межрайонного прокурора) asked the investigator to ascertain whether the Russian authorities had been involved in the applicant’s alleged abduction.

On 20 April 2012 the senior investigator, P.K., again refused to open a criminal investigation by a new decision, which repeated word for word his earlier decision of 21 March 2012 (see paragraph 56 above).

On 23 April 2012 the deputy head of the Nikulinskiy Investigation Division, A.N., quashed that decision, also repeating word for word the previous decision by the head of the Nikulinskiy Investigation Division of 21 March 2012, which had quashed P. K.’s first decision of the same date (see paragraph 57 above).

On 23 May 2012 the senior investigator, P.K., yet again refused to open a criminal investigation in respect of the applicant’s abduction. The text of that decision was not submitted to the Court.

On 9 June 2012 the deputy head of the Nikulinskiy Investigation Division, A.N., again quashed that decision and demanded that the following procedural steps be taken:

“In the course of a further inquiry a second request must be sent to the law-enforcement bodies of the Republic of Tajikistan in order to elucidate the following questions: has [the applicant] crossed the border of Tajikistan; is [the applicant] being detained in a pre-trial detention facility; and have criminal proceedings been brought against [the applicant]?

A separate set of proceedings needs to be instituted on the basis of the materials concerning the possible unlawful crossing of the Russian border by the applicant ... and the materials sent to the FSB with a view to carrying out an inquiry under Article 151 of the Code of Criminal Procedure.

... [the applicant’s representative] needs to be questioned on the following points: is she still a representative of [the applicant] and can she clarify anything about [his] crossing of the border? A number of other verification measures need to be taken with a view to adopting a lawful and well-founded decision.”

On 9 July 2012 an investigator of the Nikulinskiy Investigation Division, A.Z., refused to bring criminal proceedings in respect of the applicant’s abduction. After a brief statement of facts, the decision read as follows:

“According to information received from the Border Control Department of the Federal Security Service of Russia (“the FSB”), the law of the Russian Federation does not provide for the names of persons crossing the State border of the Russian Federation to be recorded. In accordance with section 30(15) of the State Border of the Russian Federation Act, only the number of persons crossing the border is monitored.

It is therefore impossible to confirm or refute the information about the crossing of the State border by [the applicant].

Following a request for information about [the applicant], a national of the Republic of Tajikistan, the Prosecutor General’s Office of the Republic of Tajikistan answered that the aforementioned request could not be satisfied as it had been made in breach of the Convention of 22 January 1993 for legal assistance and legal relations in civil family and criminal cases.

The police authorities in charge of the relevant territory have not received any information during the relevant period about unlawful acts involving either the use of a weapon or the abduction of persons in the circumstances indicated in the application.

The Moscow City and Regional branch of the FSB has in its possession material relating to verifications of the possible unlawful crossing of the border of the Russian Federation by [the applicant].

Given that [the applicant] is subject to an international search warrant for the commission of crimes under Articles 186 § 2 and 187 § 2 of the Criminal Code [of Tajikistan], he might have staged his abduction with a view to escaping criminal liability for crimes he had committed on the territory of the Republic of Tajikistan.

Thus, the preliminary inquiry has established no objective data indicative of [the applicant’s] abduction.”

The investigator sent the above decision to the applicant’s representatives on 16 August 2012.

On 25 February 2013 the Government informed the Court that similar inquiries had continued and were still pending. No further decisions by the investigation authorities or documents were provided to the Court. According to the Government’s information, the inquiry found that the applicant had illegally crossed the Russian State border, surrendered to the Tajik authorities and had been placed in detention. The investigator’s decision of 9 July 2012 refusing to open a criminal investigation was again quashed by his superior on an unspecified date. According to the Government, the latest decision refusing to open a criminal investigation had been issued on 29 November 2012 by the head of the Nikulinskiy Investigation Division but had yet again been quashed. As a result, the file had been sent back to the investigators for an additional inquiry.

The Government also specified that the FSB had been asked to check the information about the applicant’s illegal crossing of the State border. Another request had been sent to Tajik authorities to identify the applicant’s whereabouts in Tajikistan. However, as of 23 January no responses had been received to either request.

The applicant’s representatives informed the Court that on 30 November 2011 the Sogdiyskiy Regional Court of Tajikistan had started its examination of a criminal case against thirty-four individuals, including the applicant. The applicant had been charged with various crimes under Articles 185 § 1, 186 § 1, 187 §§ 1 and 2, 189 § 3 (a), 244 § 4 (c), 306 and 307 § 3 of the Criminal Code of Tajikistan.

Public hearings were held by the court as from 29 January 2012. Lawyer R.T., who took part in the trial, provided the applicant’s representatives with a written testimony showing that the applicant had not pleaded guilty at the trial. According to R. T., the applicant submitted that he had been abducted in Moscow, forcibly transferred to Tajikistan and tortured in order to make him confess to the crimes.

In March and April 2012 eleven relatives of the co-accused repeatedly asked the Sogdiyskiy Regional Prosecutor, Sh.K., and the President of the Sogdiyskiy Regional Court, N.M., to order a forensic medical examination of the thirty-four co-accused in order to verify their allegations that they had been tortured by the authorities during the criminal proceedings. Their written request referred to the relevant provisions of the Constitution and the Code of Criminal Procedure of Tajikistan, which prohibit the use of torture and exclude any evidence obtained under duress. The applicant’s mother made a similar request in respect of the applicant. There is no information regarding the authorities’ response to those requests.

On 19 April 2012 the Sogdiyskiy Regional Court found the applicant guilty and sentenced him to twenty-six years’ imprisonment. His thirtythree co-accused were also found guilty and sentenced to various terms of imprisonment, ranging from eight to twenty-eight years.

Chapter 54 of the Code of Criminal Procedure (“the CCrP”) of 2002 governs the procedure to be followed in the event of extradition.

An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that event, the extradition order should not be enforced until a final judgment has been delivered (Article 462 § 6).

A court must review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges 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 applicable international and domestic law (Article 463 § 6).

Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be refused: 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 launched or a conviction cannot become effective in view of the expiry of the statutory time-limit or for other valid grounds 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)). Lastly, extradition must 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)).

In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a sentence for another criminal offence in Russia, his extradition may be postponed until the prosecution has been terminated, the penalty has been lifted on any valid ground or the sentence has been served (Article 465 § 1).

In its ruling no. 11 of 14 June 2012, the Plenum of the Russian Supreme Court indicated, with reference to Article 3 of the Convention, that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture or inhuman or degrading treatment in the requesting country. Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition. Russian authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty, subjected to ill-treatment or persecuted because of his or her race, religious beliefs, nationality, ethnic or social origin or political opinions. The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was being sought. They should take into account the testimony of the person concerned and that of any witnesses, any assurances given by the requesting country, and information about the country provided by the Ministry of Foreign Affairs, by competent United Nations institutions and by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The Constitution guarantees the right to liberty (Article 22):

“1. Everyone has the right to liberty and personal integrity.

Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”

Article 46 of the Constitution provides, among other things, that everyone should be guaranteed judicial protection of his or her rights and freedoms and stipulates that decisions, actions or inaction of State bodies, local authorities, public associations and officials may be challenged before a court.

When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, an official body applies its country’s domestic laws (Article 8 § 1).

A request for extradition must be accompanied by a detention order (Article 58 § 2). Upon receipt of a request for extradition, measures should be taken immediately to find and arrest the person whose extradition is sought, except in cases where that person cannot be extradited (Article 60).

A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent (Article 61 § 1). A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence for which extradition may be requested. The other Contracting Party must be informed immediately of the arrest (Article 61 § 2).

A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all the requisite supporting documents within forty days of the date of placement in custody (Article 62 § 1).

Article 1 § 3 of the CCrP provides that general principles and norms of international law and international treaties of the Russian Federation are a constituent part of its legislation concerning criminal proceedings. Should an international treaty provide for rules other than those established in the CCrP, the former are to be applied.

Chapter 13 of the CCrP (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), while criminal proceedings are pending. Such measures include placement in custody. Custody may be ordered by a court following 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 measure of restraint cannot be used (Article 108 §§ 1 and 3). The judicial decision to place a person in custody may be appealed against to a higher court within three days. The higher court must decide the appeal within three days of the date on which the appeal is lodged (Article 108 § 11).

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).

Chapter 54 (“Extradition of a person for criminal prosecution or execution of a sentence”) regulates extradition procedures. Upon receipt of a request for extradition that is not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought. The measure must be applied in accordance with established procedure (Article 466 § 1). If a request for extradition is accompanied by a detention order 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).

By decision no. 101-O of 4 April 2006 the Constitutional Court held that the absence of any specific regulation of detention matters in Article 466 § 1 did not create a gap in the law that was incompatible with the constitutional guarantee against arbitrary detention. 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 CCrP. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) 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 CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or the timelimits fixed in the Code.

By decision no. 333-O-P of 1 March 2007, the Constitutional Court held that while Articles 61 and 62 of the Minsk Convention did not govern the procedure for detention pending the receipt of an extradition request, the applicable procedures and time-limits were to be established by domestic legal provisions in accordance with Article 8 of the Minsk Convention. It further reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than fortyeight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention, in that it required a court to examine whether the arrest was lawful and justified. The Constitutional Court held that Article 466 § 1 of the CCrP, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure and within the time-limits established in Chapter 13 of the CCrP.

By decision no. 383-O-O of 19 March 2009 the Constitutional Court upheld the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate the constitutional rights of [the claimant] ...”

Article 33 of the UN Convention on the Status of Refugees of 1951, which was ratified by Russia on 2 February 1993, provides as follows:

“1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

The Refugees Act (Law no. 4258-I of 19 February 1993), as in force at the material time, incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, or membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1(1)(1)).

The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2(1)(1) and (2)).

A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10(1)).

If a person satisfies the criteria established in section 1(1)(1), or if he does not satisfy those criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12(2)). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12(4)). The person loses temporary asylum if the underlying circumstances cease to exist or if he is granted a permanent residence permit in Russia or establishes his place of residence outside Russian territory (section 12(5)). The person is deprived of temporary asylum, inter alia, if he is found guilty of a crime committed on Russian territory or is found to have submitted false information or documents that had justified the authorities’ decision to grant him temporary asylum (section 12(6)).

According to the Procedure for Granting Temporary Asylum adopted by Decree no. 274 of 9 April 2001, as in force at the material time, a competent FMS body delivers a certificate for temporary asylum to any person to whom it has been granted (§ 8). The certificate constitutes an identity document in the Russian Federation (§ 9). When a certificate for temporary asylum is delivered to a person, his other identity documents are withheld by the FMS on a temporary basis. Temporary asylum is granted for a period of up to one year, which may be renewed for each consecutive year upon request by the person concerned, provided that the underlying circumstances continue to exist (§ 12). The person to whom temporary asylum is granted enjoys all rights and obligations provided for by the Refugees Act except the right to receive a lump-sum allowance (§ 13).

Recommendation No. R (98) 13 by the Committee of Ministers of the Council of Europe to member States on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights reads as follows:

“The Committee of Ministers ...

Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers,

Recommends that governments of member states, while applying their own procedural rules, ensure that the following guarantees are complied with in their legislation or practice:

An effective remedy before a national authority should be provided for any asylum seeker whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment.

In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: ...

2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; ...

2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.”

On a more general level, Recommendation Rec (2004) 6 of the Committee of Ministers to member States on the improvement of domestic remedies states as follows:

The Committee of Ministers ...

Emphasising that it is for member states to ensure that domestic remedies are effective in law and in practice, and that they can result in a decision on the merits of a complaint and adequate redress for any violation found;

Noting that the nature and the number of applications lodged with the Court and the judgments it delivers show that it is more than ever necessary for the member states to ascertain efficiently and regularly that such remedies do exist in all circumstances ...

Considering that the availability of effective domestic remedies for all arguable claims of violation of the Convention should permit a reduction in the Court’s workload as a result, on the one hand, of the decreasing number of cases reaching it and, on the other hand, of the fact that the detailed treatment of the cases at national level would make their later examination by the Court easier;

Emphasising that the improvement of remedies at national level, particularly in respect of repetitive cases, should also contribute to reducing the workload of the Court;

Recommends that member states, taking into account the examples of good practice appearing in the appendix:

I. ascertain, through constant review, in the light of case-law of the Court, that domestic remedies exist for anyone with an arguable complaint of a violation of the Convention, and that these remedies are effective, in that they can result in a decision on the merits of the complaint and adequate redress for any violation found;

II. review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court; ...”

The Code of Criminal Procedure establishes that every report of a crime must be accepted, verified and decided upon within three days by an inquiry officer, inquiry agency, investigator or prosecutor. They may proceed, with experts’ assistance or on their own, to documentary verifications, checks, and the examination of documents, objects or dead bodies, and may issue compulsory orders for operational search activities (Article 144 § 1). The aforementioned period of three days may be extended to ten and thirty days in certain circumstances (Article 144 § 3). A criminal investigation may be initiated by an investigator or a prosecutor following a complaint by an individual or on the investigating authorities’ own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147).

Orders by an investigator or a prosecutor refusing to institute criminal proceedings or terminating a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice, may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions (Article 125).

A report released by Amnesty International in 2007 contained the following information on the death of Sadullo Marufov in police custody (see paragraph 12 above):

“Sadullo Marufov, a member of the Islamic Renaissance Party (IRP), died in police custody in May after he was detained for questioning by law enforcement officers in Isfara. Initially the officers claimed that he had committed suicide by jumping from a third floor window. The IRP claimed that an autopsy report indicated that he had been beaten and ill-treated, and alleged that he had been pushed from the window. The general prosecutor’s office subsequently announced that following an investigation three officers had been detained.”

The reports by the United Nations and nongovernmental organisations on the situation in Tajikistan at the material time appear in several judgments of the Court cited above (see, among others, Khodzhayev, §§ 72-74, and Gaforov, §§ 93-100). More recently, the situation was further reported upon as follows.

Concluding his visit to Tajikistan in May 2012, the UN Special Rapporteur on Torture, Mr Juan E. Méndez, stated that “pressure on detainees, mostly as a means to extract confessions, is practiced in Tajikistan in various forms, including threats, beatings and sometimes by applying electric shock”. He stressed that “confessions extracted by violence remain the main investigatory tool of law enforcement and prosecutorial bodies”. He also expressed his concerns at the lack of safeguards against illegal extradition or rendition from and to other countries, as “there seems to be no meaningful opportunity for judicial review of these measures that are generally conducted by the law enforcement bodies under the direction of the Prosecutor General. The Minsk Convention on Legal Assistance in civil and criminal matters of 1993, other agreements between CIS countries ... offer general language about protection against abuse, but they operate more meaningfully as international cooperation in law enforcement. The result is that international law prohibitions on refoulement to places where a person may be subjected to torture or cruel, inhuman or degrading treatment are not guaranteed in fact” (End-of-mission Statement by the UN Special Rapporteur on Torture, Juan E. Méndez. Preliminary findings on his country visit to the Republic of Tajikistan, 10-18 May 2012).

On 27 June 2011 a group of non-governmental organisations including international NGOs (Amnesty International, the International Federation for Human Rights (FIDH), Penal Reform International (PRI) and the World Organisation Against Torture (OMCT)), as well as Tajikistani NGOs (the Bureau of Human Rights and Rule of Law, the Centre for Children’s Rights, the Collegium of Advocates of the Soghd Region, the Sipar Collegium of Advocates of the Republic, and several others) released a joint statement. It was headed “Tajikistan: A coalition of nongovernmental organisations is calling on the government to end torture and fulfil its international obligations” and, in so far as relevant, reads as follows:

“In Tajikistan police have in many cases been accused of torturing or beating detainees to extract money, confessions or other information incriminating the victim or others. This abuse has mostly taken place in the early stages of detention; in many cases victims are initially detained without contact with the outside world ...

Torture practices reported in Tajikistan include the use of electric shocks; attaching plastic bottles filled with water or sand to the detainee’s genitals; rape; burning with cigarettes. Beating with batons, truncheons and sticks, kicking and punching are also believed to be common.

... [S]afeguards against torture enshrined in domestic law are not always adhered to. For example, while the new Criminal Procedure Code stipulates that detainees are entitled to a lawyer from the moment of their arrest, in practice lawyers are at the mercy of investigators, who can deny them access for many days. During this period of incommunicado detention, the risk of torture or other ill-treatment is particularly high. The new Criminal Procedure Code also introduced remand hearings within 72 hours of a suspect’s arrest. However, they often take place with a delay, and judges in many cases ignore torture allegations and the injuries presented to them in the courtroom. Usually they rely on the version of events given by [those] accused of the torture.

There are no routine medical examinations when detainees are admitted to police stations and temporary detention facilities. Upon transfer to pre-trial detention facilities under the jurisdiction of the Ministry of Justice they undergo a medical examination. However, when medical personnel suspect that a detainee [has undergone] torture or other ill-treatment they ... usually return them to the temporary detention facility until the signs of injury have faded.

Victims rarely lodge complaints ... for fear of repercussions, and impunity for abusive officers is the norm. Often relatives and lawyers are reluctant to file complaints, so as not to worsen the situation for the detainee.

Prosecutor’s offices are tasked with investigating allegations of torture. Sometimes close personal and structural links between prosecutor’s offices and police undermine the impartiality of prosecutors. The authorities have not published comprehensive statistics on prosecutions of law-enforcement officers relating specifically to torture or other ill-treatment, rather than broader charges such as “abuse of power“ or “exceeding official authority”.

Judges [regularly] base verdicts on evidence allegedly extracted under duress ...

Tajikistan has not given the International Committee of the Red Cross access to detention facilities to carry out monitoring since 2004. It has not ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides for a system of regular visits to places of detention carried out by independent international and national bodies.”

In January 2012 Human Rights Watch released its World Report 2012, in which the relevant chapter on Tajikistan states:

“Torture remains an enduring problem within Tajikistan’s penitentiary system and is used to extract confessions from defendants, who are often denied access to family and legal counsel during initial detention. Despite discussions with the International Committee of the Red Cross (ICRC) in August, authorities have not granted ICRC access to places of detention. With rare exceptions, human rights groups are also denied access.

While torture is practiced with near impunity, authorities took a few small steps to hold perpetrators accountable ...

Under the pretext of combating extremist threats, Tajikistan continues to ban several peaceful minority Muslim groups... Local media continued to report on prosecutions of alleged members of Hizb ut-Tahrir and the Jamaat Tabligh movement.”

The report by Amnesty International entitled “Shattered Lives: Torture and other ill-treatment in Tajikistan”, released on 12 July 2012, reads, in so far as relevant, as follows:

“... Amnesty International’s research shows that practices of torture and other ill‑treatment remain widespread in all types of detention facilities in Tajikistan. Detainees at the early stages of detention were found to be at particular risk, subjected to torture or other ill-treatment by law enforcement officers in order to “solve” crimes by obtaining confessions of guilt and also to obtain money from torture victims or their relatives. The general climate of impunity keeps police abuse virtually unchecked ...

The scale of torture and other ill-treatment in Tajikistan

In Tajikistan torture and ill-treatment occur in a climate of secrecy. [T]he perpetrators are rarely brought to justice ... [T]orture and other ill-treatment occur particularly in pre-trial detention ... Domestic law has significant shortcomings when it comes to safeguards against torture. In addition, those crucial safeguards that do exist in law, such as access to a lawyer immediately after apprehension, are rarely applied in practice ...

2.1. Torture and other ill-treatment by police

[T]he routine use of torture results from the lack of technical capacity to investigate crimes... A local independent human rights observer told Amnesty International that: “people may get away without beatings in less serious cases, but in cases involving grave crimes – if they don’t confess, they get beaten”, adding that police “won’t hesitate to resort to violence ...

2.2. Torture and other ill-treatment used in the context of national security and counter-terrorism

The fight against terrorism and threats to national security are often invoked by the Tajikistani authorities as key to securing national and regional stability. However, ... frequently human rights are violated in the pursuit of groups perceived as a threat to national security ...

[The] research indicates that particular targets are Islamic movements and Islamist groups or parties, and that people accused of being Islamist extremists are at particular risk of torture and other ill-treatment in Tajikistan ...

In September 2010 an explosion occurred at the office of the [police] in Khujand, resulting in several deaths and injuries to over two dozen people. Following this the Tajikistani authorities redoubled their efforts to find members of Islamic movements and Islamist groups or parties who they alleged were responsible. Law enforcement officers came under increased pressure to solve cases with national security implications ...

Torture and other ill-treatment upon return to Tajikistan

... Amnesty International is concerned at a series of recent cases where the Tajikistani authorities have made extradition requests based on unreliable information for people alleged to be members of banned Islamic groups, who have subsequently alleged being tortured on their return. Many of these extradition requests have been issued for people in the Russian Federation.”

In Resolution 1571 (2007) on member States’ duty to cooperate with the Court, adopted on 2 October 2007, the Parliamentary Assembly stated, inter alia:

“13. The Court has also used the instrument of interim measures (Article 39 of the Rules of the Court) in order to prevent irreparable damage. The Assembly commends the Court for finding that such interim measures are binding on states parties. It considers that this instrument may have still wider potential uses for protecting applicants and their lawyers who are exposed to undue pressure. The Court may find it useful in this respect to examine the practice of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, which have used interim measures to enjoin the authorities to place applicants under special police protection in order to shield them from criminal acts by certain non-state actors.”

The explanatory memorandum adopted by the Assembly’s Committee of Legal Affairs and Human Rights (Doc. 11183 of 9 February 2007, § 48) referred in this connection to the practice developed under Article 63 § 2 of the American Convention on Human Rights, which empowers the Inter-American Court of Human Rights to order positive action by states. For example, in the Aleman-Lacayo case, the InterAmerican Commission of Human Rights asked the Court to adopt a measure requesting that the Government of Nicaragua adopt effective security measures to protect the life and personal integrity of Dr AlemanLacayo, including providing him and his relatives with the “name and telephone number of a person in a position of authority” who would be responsible for providing them with protection. The Court granted the Commission’s request and called upon the Nicaraguan Government to adopt “such measures as are necessary to protect the life and personal integrity of Dr Aleman-Lacayo” (see Aleman-Lacayo case, Inter-American Court of Human Rights, Order of 2 February 1996).

The Assembly’s Resolution 1571 (2007) further called upon the competent authorities of all member States to:

“17.1. refrain from putting pressure on applicants, potential applicants, their lawyers or family members, aimed at obliging them to refrain from submitting applications to the Court or withdrawing those applications which have already been submitted;

17.2. take positive measures to protect applicants, their lawyers or family members from reprisals by individuals or groups including, where appropriate, allowing applicants to participate in witness protection programmes, providing them with special police protection or granting threatened individuals and their families temporary protection or political asylum in an unbureaucratic manner;

17.3. thoroughly investigate all cases of alleged crimes against applicants, their lawyers or family members and to take robust action to prosecute and punish the perpetrators and instigators of such acts so as to send out a clear message that such action will not be tolerated by the authorities; ...”

The Assembly further stated:

“18. The Assembly is of the view that member states’ co-operation with the European Court of Human Rights would benefit if the Court were to continue to develop its case law to ensure full implementation of the member states’ duty to cooperate with the Court, in particular by:

18.1. taking appropriate interim measures, including new types thereof, such as ordering police protection or relocation of threatened individuals and their families;

18.2. urgently notifying applications to respondent states in cases where the Court is informed of credible allegations of undue pressure on applicants, lawyers or family members;

18.3. granting priority to such cases;

18.4. taking up cases of alleged unlawful pressure on applicants and lawyers with the representatives of the state concerned and, as appropriate, alerting the Committee of Ministers to any persistent problems.”

Lastly, the Assembly invited “national parliaments to include all aspects of states’ duty to co-operate with the Court in their work aimed at supervising the compliance of governments with obligations under the Convention, and to hold the executive or other authorities accountable for any violations.”

In Recommendation 1809 (2007) the Assembly proposed that the Committee of Ministers address a recommendation to all member States inviting them to take the necessary measures in order to prevent applicants who had initiated proceedings before the Court, their lawyers, members of their families, or the NGOs assisting them from being subjected to unlawful pressure or reprisals, and to ensure that perpetrators and instigators of such acts were brought to account.

The Assembly’s more recent Recommendation 1956 (2011) of 26 January 2011 specifically dealing with the question of interim measures under Rule 39 reads as follows:

“3. A major concern of the Assembly is the growing number of member states that have recently ignored interim measures ordered by the Court under Rule 39. This emphasises the need for the Committee of Ministers to reinforce its role in the execution of the Court’s judgments.

The Assembly therefore invites the Committee of Ministers to:

4.1. consider extending its mandate under Article 46 of the European Convention on Human Rights (“the Convention”, ETS No. 5) by introducing a competence to monitor compliance with the letter and spirit of Rule 39 measures of which notice has been given under Rule 39.2 of the Rules of Court;

4.2. fully use its competence pursuant to Article 46 of the Convention in resolving the cases of non-compliance in a way which fully and effectively upholds the Convention; ensure, in collaboration with the Court, that a mechanism or working method is established for follow-up in cases of non-compliance, and investigate cases and/or publish statements in this connection;

4.3. give priority to judgments finding violations of Article 34 of the Convention in cases concerning expulsion and extradition of aliens, while supervising their execution by respondent states according to Article 46 of the Convention;

4.4. seek to adopt an interim resolution calling for member states to take individual and/or general measures, in those cases where an individual has been expelled to a state which has no wish to return him or her;

4.5. co-operate with the Court and other relevant actors in order to publish uptodate Rule 39 statistics as well as information on the extent of compliance by contracting parties; ...”

In its Resolution 1788 (2011) adopted on the same date, the Assembly also stated:

“10. While still relatively rare, the growing number of breaches is of grave concern given the harm to the individuals concerned and the impact on the integrity of the Convention system as a whole. The Assembly condemns any disrespect of legally binding measures ordered by the Court, and in particular disrespect for the right of individual application as guaranteed by Article 34 of the Convention, as a blatant disregard for this unique system of protection of human rights.

The Assembly therefore urges the member states of the Council of Europe to:

15.1. guarantee the right of individual petition to the Court under Article 34, neither hinder nor interfere with the exercise of that right in any manner whatsoever and fully comply with the letter and spirit of interim measures indicated by the Court under Rule 39, in particular by:

15.1.1. co-operating with the Court and Convention organs, by providing full, frank and fair disclosure in response to requests for further information under Rule 39(3), and facilitating to the highest degree any fact-finding requests made by the Court;

The Assembly recognises the primary role of the Court in finding solutions for dealing with interim measures under Rule 39 and in this context expresses the hope that the Court will:

16.8. require, in more cases, the adoption of specific measures by states to remedy harm caused, in order that the Committee of Ministers may more effectively monitor the execution of judgments ...”

In Resolutions ResDH(2001)66 and ResDH(2006)45 the Committee of Ministers emphasised that the principle of cooperation with the Court embodied in the Convention was of fundamental importance for the proper and effective functioning of the Convention system and called on the governments of the Contracting States to ensure that all relevant authorities strictly complied with that obligation.

The Committee of Ministers’ Interim Resolution CM/ResDH(2010)83 concerning the Court’s judgment in the case of Ben Khemais v. Italy (no. 246/07, 24 February 2009) reads as follows:

“The Committee of Ministers ...

Recalling that the applicant in the present case was expelled to Tunisia on 2 June 2008 despite the Court’s interim measure under Rule 39 of the Rules of the Court requiring the Italian authorities not to do so until further notice;

Noting that the Court consequently found that the applicant’s expulsion amounted to violations of Article 3 and of Article 34 of the Convention;

Recalling that, in the context of the examination of the present case, the Committee noted, at its 1078th meeting (March 2010), that the Italian authorities were fully committed to complying with the interim measures indicated by the Court under Rule 39;

Deploring that, despite this commitment, the Italian authorities expelled another applicant, Mr. Mannai, to Tunisia on 1 May 2010 in breach of an interim measure indicated on 19 February 2010 by the Court requiring the Italian authorities not to do so until further notice;

Noting with concern that in at least two other cases the Italian authorities have expelled applicants to Tunisia although the Court had previously indicated not to do so under Rule 39 ;

Recalling firmly that, according to the Court’s well-established case-law, Article 34 of the Convention entails an obligation to comply with interim measures indicated pursuant to Rule 39 of the Rules of the Court since the Grand Chamber’s judgment of 4 February 2004 in the case of Mamatkulov and Askarov against Turkey,

Stressing once again the fundamental importance of complying with interim measures indicated by the Court under Rule 39 of the Rules of Court;

Expressing confidence however that the Italian authorities will finally take the necessary measures to ensure that interim measures indicated by the Court are strictly complied with, to prevent similar violations in the future;

FIRMLY RECALLS the obligation of the Italian authorities to respect interim measures indicated by the Court;

URGES the Italian authorities to take all necessary steps to adopt sufficient and effective measures to prevent similar violations in the future;

DECIDES to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted.”

Responding to Recommendation 1809 (2007) of the Parliamentary Assembly (see paragraph 113 above), the Committee of Ministers adopted Resolution CM/Res(2010)25 on member States’ duty to respect and protect the right of individual application to the Court, the relevant parts of which read as follows:

“... Emphasising that the right of individuals to apply to the European Court of Human Rights (hereinafter referred to as ‘the Court’) is a central element of the convention system and must be respected and protected at all levels;

Stressing that respect for this right and its protection from any interference are essential for the effectiveness of the Convention system of human rights protection;

Recalling that all States Parties to the Convention have undertaken not to hinder in any way the effective exercise of this right, as stipulated by Article 34 of the Convention;

Recalling that positive obligations, including to investigate, form an essential characteristic of the Convention system as a whole;

Recalling also that the Court’s case law has clearly established that Article 34 of the Convention entails an obligation for States Parties to comply with an indication of interim measures made under Rule 39 of the Rules of Court and that non-compliance may imply a violation of Article 34 of the Convention;

Noting therefore with concern that there have been isolated, but nevertheless alarming, failures to respect and protect the right of individual application (such as obstructing the applicant’s communication with the Court, refusing to allow the applicant to contact his lawyer, bringing pressure to bear on witnesses or bringing inappropriate proceedings against the applicant’s representatives), as found in recent years by the Court;

Deploring any interference with applicants or persons intending to apply to the Court, members of their families, their lawyers and other representatives and witnesses, and being determined to take action to prevent such interference;

Recalling the 1996 European Agreement relating to persons participating in proceedings of the European Court of Human Rights (ETS No. 161);

Recalling its Resolutions ResDH(2001)66 and ResDH(2006)45 on the states’ obligation to co-operate with the European Court of Human Rights,

Calls upon the States Parties to:

refrain from putting pressure on applicants or persons who have indicated an intention to apply to the Court, members of their families, their lawyers and other representatives and witnesses aimed at deterring applications to the Court, having applications which have already been submitted withdrawn or having proceedings before the Court not pursued;

fulfil their positive obligations to protect applicants or persons who have indicated an intention to apply to the Court, members of their families, their lawyers and other representatives and witnesses from reprisals by individuals or groups including, where appropriate, by allowing applicants and witnesses to participate in witness protection programmes and providing appropriate forms of effective protection, including at international level;

in this context, take prompt and effective action with regard to any interim measures indicated by the Court so as to ensure compliance with their obligations under the relevant provisions of the Convention;

identify and appropriately investigate all cases of alleged interference with the right of individual application, having regard to the positive obligations already arising under the Convention in light of the Court’s case law;

take any appropriate further action, in accordance with domestic law, against persons suspected of being the perpetrators and instigators of such interference, including, where justified, by seeking their prosecution and the punishment of those found guilty;

if they have not already done so, ratify the 1996 European Agreement relating to persons participating in proceedings of the European Court of Human Rights,

Decides also to examine urgently, particularly in the context of its supervision of the execution of judgments finding a violation of Article 34, to any incident of interference with the right of individual application and encourages the Secretary General to consider exercising his powers under Article 52 of the Convention where justified by the circumstances.”

In its Final Declaration, the High Level Conference on the Future of the Court held in Izmir on 26-27 April 2011 reiterated the requirement for the States Parties to comply with the interim measures in the following terms:

“[The Conference] stresses the importance of States Parties providing national remedies, where necessary with suspensive effect, which operate effectively and fairly and provide a proper and timely examination of the issue of risk in accordance with the Convention and in light of the Court’s case law; and, while noting that they may challenge interim measures before the Court, reiterates the requirement for States Parties to comply with them.”

Replying to the Assembly’s Recommendation 1956 (2011) (see paragraph 114 above), the Committee of Ministers assured the Assembly that “it fully uses its competence under Article 46 in all cases establishing violations of Article 34, whether in order to ensure that urgent individual measures are rapidly adopted, or repetitions of violations prevented through the introduction of necessary domestic safeguards.” The Committee reminded the Assembly that the new working methods applied since January 2011 had fixed as indicators for classification under enhanced supervision all cases calling for urgent individual measures or revealing major structural problems (see Doc. 12836).

Following the information received from the Court about repeated complaints of Russia’s disregard for interim measures in the present case and several other cases (see paragraph 52 above), the Committee of Ministers examined that issue in connection with the execution of the Court’s judgment in the Iskandarov case (cited above).

The Committee of Ministers’ decision (CM/Del/Dec(2012)1136/19), adopted on 8 March 2012 at the 1136th meeting of the Ministers’ Deputies, reads, in so far as relevant, as follows:

“The Deputies

as regards the Iskandarov case, recalled that the violations of the Convention in this case were due to the applicant’s kidnapping by unknown persons, whom the Court found to be Russian State agents, and his forcible transfer to Tajikistan after his extradition had been refused by the Russian authorities;

noted with profound concern the indication by the Court that repeated incidents of this kind have recently taken place in respect of four other applicants whose cases are pending before the Court where it applied interim measures to prevent their extradition on account of the imminent risk of grave violations of the Convention faced by them;

took note of the Russian authorities’ position that this situation constitutes a source of great concern for them;

noted further that the Russian authorities are currently addressing these incidents and are committed to present the results of the follow-up given to them in Russia to the Court in the framework of its examination of the cases concerned and to the Committee with regard to the Iskandarov case;

urged the Russian authorities to continue to take all necessary steps to shade light on the circumstances of Mr. Iskandarov’s kidnapping and to ensure that similar incidents are not likely to occur in the future and to inform the Committee of Ministers thereof.”

During its subsequent examination of the issue, the Committee of Ministers, confronted with yet another case of alleged disappearance of an applicant notwithstanding the interim measures indicated by the Court, reiterated its previous concerns at the repetition of such incidents and continued as follows (see decision adopted on 6 June 2012 at the 1144th meeting - CM/Del/Dec(2012)1144/18):

“The Deputies

deplored the fact that, notwithstanding the serious concerns expressed in respect of such incidents by the President of the Court, the Committee of Ministers and by the Russian authorities themselves, they were informed that yet another applicant disappeared on 29 March 2012 in Moscow and shortly after found himself in custody in Tajikistan;

took note of the Russian authorities’ position according to which the investigation in the Iskandarov case is still ongoing and had not at present established the involvement of the Russian State in the applicant’s kidnapping;

regretted however that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer, nor to establish the responsibility of any state agent;

noted that, according to the information given by the Russian authorities, following the dissemination in April 2012 of the Committee of Ministers’ decision adopted at the 1136th meeting to the Prosecutor General’s Office, to the Investigative Committee, the Ministry of the Interior, the Federal Migration Service and to the Federal Baliffs’ Service, no other incidents of this kind had taken place, and invited the Russian authorities to clarify whether they consider that this measure is sufficient to effectively put an end to such an unacceptable practice.”

By a decision adopted at the 1150th meeting of the Ministers’ Deputies on 26 September 2012 (CM/Del/Dec(2012)1150), the Committee of Ministers made the following findings and assessment:

“The Deputies

noted with regret that to date no-one responsible for the applicant’s illegal transfer to Tajikistan has been identified in the Iskandarov case;

noted that no incidents similar to those described in the Iskandarov case took place since the last examination of this case by the Committee and invited the Russian authorities to continue to take all necessary measures in order to ensure that such incidents no longer occur in the future;

welcomed the adoption on 14 June 2012 by the Supreme Court of the Russian Federation of a Ruling providing important guidelines on how to apply domestic legislation in the light of the Convention requirements, in particular with regard to Articles 3 and 5 of the Convention;

noted further with satisfaction that the measures adopted by the Russian authorities in response to the judgments of this group (the Constitutional Court’s decision, instructions issued by the Prosecutor General and the Decisions of the Plenum of the Supreme Court) have already resulted in a number of judgments of the Court finding no violations of the Convention;

encouraged the Russian authorities to ensure rapid progress with regard to the preparation and adoption of the legislative reform required by these judgments.”

The Committee of Ministers resumed examination of the issue at the 1157th meeting of the Ministers’ Deputies held on 6 December 2012 and adopted the following decision (CM/Del/Dec(2012)1157):

“The Deputies

recalled that in abiding by a Court’s judgment, the State party has an obligation to take all measures to prevent violations similar to those found by the Court;

consequently deeply regretted that, notwithstanding the serious concerns expressed by the Court and by the Committee of Ministers in respect of incidents allegedly similar to that in the Iskandarov judgment, they were informed that yet another applicant, who was subject to an interim measure indicated by the Court under Rule 39 in connection with his planned extradition to Tajikistan, would have disappeared from Volgograd on 20 October 2012 (Latipov v. Russian Federation, No. 77658/11);

noted that such incidents, if confirmed, and lack of appropriate response thereto by the authorities would raise a more general issue as to the compatibility of this situation with the obligations of the Russian Federation under the Convention;

reiterated their regret expressed in their earlier decision that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer, nor to establish the responsibility of any state agent;

consequently called upon the Russian authorities to address without further delay this worrying and unprecedented situation, notably by adopting protective measures in respect of other persons who may be subject to an interim measure indicated by the Court under Rule 39 in connection with their removal from the Russian territory and ensuring that all such incidents are effectively investigated in strict compliance with their Convention obligations;

invited the Russian authorities to provide information on the applicant’s current situation in the Iskandarov case, in particular as far as guarantees against illtreatment are concerned.”

The Committee of Ministers’ latest decision on the matter (CM/Del/Dec(2013)1164), which was adopted on 7 March 2013 at the 1164th meeting of the Ministers’ Deputies, reads as follows:

“The Deputies

took note of the Russian authorities’ position according to which the measures taken so far can prevent further abductions and forced transfers of persons in whose respect the Court indicated an interim measure under Rule 39 of its Rules of Procedure;

noted however with serious concern that at present several complaints of foreign nationals are pending before the Court concerning alleged violations of their rights and the non-observance of interim measures indicated by the Court with regard to their forced transfer from the territory of the Russian Federation;

invited the Russian authorities to clarify the relevance of the measures already taken in circumstances similar to those described in the Iskandarov and Abdulkhakov judgments;

reiterated their call upon the Russian authorities to adopt without further delay the necessary measures to put an end to such incidents by taking further special protective measures in respect of the applicants and a set of measures to ensure rapid and effective investigations into disappearances and forced transfers, and to inform the Committee of Ministers accordingly;

in view of the persistence of this alarming situation and having regard to the obligations of the Russian Federation under the Convention, invited the President of the Committee of Ministers to address a letter to his Russian counterpart in order to draw his attention to the serious concern of the Committee of Ministers as well as its repeated calls to adopt the above-mentioned measures;

decided to resume consideration of these questions at the latest at their 1179th meeting (September 2013) (DH) however agreeing, in the event that a new, similar incident is brought to the Committee’s attention, to return to this issue at their first meeting following notification of such an incident.”