Preliminary objections joined to merits and dismissed (six month period;non-exhaustion of domestic remedies);Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-4;Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award

The applicant was born in 1973 and lived before his arrest in the town of Khudzhand, Tajikistan. He is currently residing in Moscow.

In 2005 the applicant lost his job at a telephone exchange in Khudzhand and started earning his living by printing various texts for people on his computer, including theses and extracts from the Koran.

In 2005 several persons were arrested in Khudzhand on suspicion of membership of Hizb ut-Tahrir (“HT”), a transnational Islamic organisation, banned in Russia, Germany and some Central Asian republics. Subsequently, the applicant learnt that some of the arrestees had testified before the prosecuting authorities that he was a member of HT and had printed various materials for it from the Internet. The applicant denies being a member of HT.

On 16 February 2006 the prosecutor's office of the Sogdiyskiy Region of Tajikistan (“the Sogdiyskiy prosecutor's office”) instituted criminal proceedings against the applicant on suspicion of membership of an extremist organisation (Article 307 § 2 of the Tajikistani Criminal Code (“TCC”)). In particular, the applicant was suspected of having actively worked with HT by printing out leaflets and religious literature for that organisation with a view to their dissemination. The case was assigned the number 9615.

On 19 February 2006 the Sogdiyskiy prosecutor's office ordered the applicant's placement in custody. Shortly thereafter the applicant was arrested and placed in the basement of the Ministry of National Security (MNS). According to the applicant, he was held there for about three months. He was systematically beaten up and was tortured at least six times with electricity. He was held in premises with nothing to rest on, was refused access to the toilet for lengthy periods of time and received no food.

On 6 May 2006 the prosecutor's office of the BobodzhonGafurovskiy District (“the Bobodzhon-Gafurovskiy prosecutor's office”) opened a further criminal case against the applicant in connection with his alleged activities within HT. In particular, the applicant was suspected of: having secretly studied extremist literature provided by other members of HT; having worked for the organisation as an IT specialist; having printed out the organisation's leaflets and other literature and secretly distributed it among non-members of the organisation; having paid membership fees to the organisation and trained another member to work with the PC. On the same day the applicant was charged with membership of a criminal organisation banned owing to its extremist activities (Articles 187 § 2 and 307.2-3), incitement to religious and other hatred (Article 189 § 3) and public appeals to overthrow the constitutional order and to engage in extremist activities (Articles 307 and 307.1). The criminal case was joined with case no. 9615 and given the number 9431.

According to the applicant, in May 2006 he and other detainees were taken to a construction site for a recreation zone for officers of the MNS, where they were ordered to dig, working in a bending position. When they tried to straighten up, the guards beat them severely.

On 24 May 2006, fearing further beatings, the applicant escaped.

According to the applicant, his relatives told him that after his escape law enforcement officials had tortured his co-accused to find out where he had gone and whether they had helped him to make good his escape.

On 25 May 2006 the Bobodzhon-Gafurovskiy prosecutor's office instituted criminal proceedings against the applicant for escaping from custody. The decision stated that on 24 May 2006, “while in custody at a summer cottage [дачный участок] belonging to the MNS”, the applicant had fled to an unknown destination.

On an unspecified date the criminal case against the applicant in connection with his alleged activities within HT was transferred for examination to the Bobodzhon-Gafurovskiy District Court of the Sogdiyskiy Region

By a decision of 6 June 2006 the Bobodzhon-Gafurovskiy District Court put the applicant's name on a wanted list and suspended the examination of the criminal case against him pending his arrest.

On 9 June 2006 the Bobodzhon-Gafurovskiy prosecutor's office charged the applicant with escape from custody.

It appears that the applicant was hiding in Tajikistan until December 2006, when he moved to Kyrgyzstan. On an unspecified date in May 2007 the applicant arrived in Russia.

On 5 August 2008 the applicant was arrested in Moscow as a person wanted by the Tajikistani authorities.

On 6 August 2008 the Nagatinskiy deputy prosecutor questioned the applicant about the circumstances of his arrival in Russia. According to the applicant's written explanation [объяснение] of the same date, in 2006 the Tajikistani authorities had opened a criminal case against him on suspicion of membership of an extremist organisation. For about three months in 2006 he had been held in custody. During that period he had been taken on a daily basis to work at a construction site, from where he had escaped. In 2007 the applicant had come to Russia to avoid criminal prosecution and to earn a living. He had not applied for Russian citizenship, refugee status or political asylum. The transcript bore the applicant's signature. In the applicant's submission, the explanation was compiled by the Russian authorities on the basis of material from his criminal case produced by the Tajikistani law enforcement authorities.

On 11 September 2008 the Tajikistani Prosecutor General's Office (“the TPGO“) sent to the Russian Prosecutor General's Office a request for the applicant's extradition to Tajikistan in connection with the charges concerning his membership of HT. The letter stated that the applicant would be tried only on the charges for which his extradition was being sought, and that he would not be extradited to a third country without the consent of the Russian authorities.

On 5 December 2008 the TPGO sent their Russian counterpart an additional request for the applicant's extradition on the charge of escaping from custody.

By a letter of 19 December 2008 the applicant's lawyer informed the Russian Prosecutor General's Office that the applicant intended to challenge before the courts the refusal to grant him refugee status (see below) and requested them to take that fact into account when examining the extradition issue.

On 30 December 2008 the deputy Prosecutor General of the Russian Federation ordered the applicant's extradition to Tajikistan. The decision, in its relevant parts, read as follows:

“... [Mr] Gaforov is charged with having actively participated in 2002-2006 in the activities of a criminal organisation “Hizb-ut-Tahrir al-Islam”, aimed at the violent seizure of state power and the overthrow of the constitutional order and banned on the territory of Tajikistan by a court decision ...

The [applicant's] actions are punishable under Russian criminal law and correspond to Article 210 of the Russian Criminal Code (membership of a criminal organisation); Article 278 (acts aimed at violent overthrowing of the constitutional order); Article 280 (public appeals in the media to engage in extremist activities); Article 282 § 2 (c) (incitement to hatred and degrading treatment via the mass media, carried out by an organised group); Article 282 § 2 (membership of an extremist organisation); Article 282 § 2 (membership of an organisation banned by a court decision because of its extremist activities); Article 205 § 1 (financing terrorism). The above-mentioned offences carry penalties of over one year's imprisonment. The time-limits for [the applicant's] prosecution under Russian and Tajikistani legislation have not expired.

[The applicant] is charged with having absconded from custody ... on 24 May 2006 ...

The [applicant's] actions are punishable under Article 313 § 1 of the Russian Criminal Code (escape from custody of a person detained on remand) and carry a penalty of over one year's imprisonment. The time-limits for [the applicant's] criminal prosecution under Russian and Tajikistani legislation have not expired.”

Lastly, the decision stated that, according to the Federal Migration Service (“the FMS”), the applicant had not obtained Russian citizenship, and concluded that there were no other grounds for not extraditing him to Tajikistan.

On 21 January 2009 the applicant appealed against the decision of 30 December 2008, alleging that, if extradited, he would be subjected to torture in breach of Article 3 of the Convention. He averred, in particular, that he had described in detail the treatment to which he had been subjected while in custody in Tajikistan and that the Russian Prosecutor General's Office had disregarded those submissions and the relevant materials from international NGOs showing that the Tajikistani law enforcement authorities systematically tortured detainees. The applicant also submitted that the Tajikistani authorities were not able to provide effective guarantees against the risk of ill-treatment and unfair criminal proceedings. Lastly, he stated that the decision to extradite him had been taken despite the fact that his asylum application was pending.

By a letter of 10 February 2009 the TPGO guaranteed to their Russian counterpart that, if extradited, the applicant would not be persecuted on political, ethnic, linguistic, racial or religious grounds and that he would not be subjected to torture or inhuman or degrading treatment or punishment. The letter also noted that on 11 March 2008 the Supreme Court of Tajikistan had declared HT a terrorist organisation and had banned its activities on the territory of Tajikistan.

At a hearing on 16 February 2009 the Moscow City Court (“the City Court”) examined the applicant's complaint about the decision to extradite him to Tajikistan.

According to the hearing transcript, the applicant submitted to the court that after his arrest in 2006 in Tajikistan he had been severely beaten and on six occasions tortured with electricity with a view to extracting a confession that he was a member of HT. He had been held in the MNS basement for about three months. During his detention there he had been systematically beaten and insulted and had been allowed access to the toilet only twice a day. While still in detention, he had been taken to a construction site for an MNS recreation zone. There he and other detainees had worked laying the foundation for a sports centre; they had also been ordered to mow grass. The applicant and other detainees had been systematically subjected to beatings. Unable to stand the beatings and the lack of food, the applicant had escaped. The applicant further stressed that he feared returning to Tajikistan because after his escape several MNS officials had threatened his family. They had allegedly told his family members that if the applicant was caught, they would not leave him alive. An MNS officer who had beaten the applicant and who had been on duty on the day of his escape had allegedly told the applicant's sister that if he went to jail because of the applicant, he would kill the applicant's whole family, once released.

At the hearing the applicant's lawyer also stated that his client's detention was unlawful because the authorities had failed to extend it properly, in breach of the Code of Criminal Procedure (“CCrP”) and the decisions of the Constitutional Court.

Having heard the applicant and his lawyer and granted their request to include in the case file reports from various NGOs and international organisations on the situation in Tajikistan in relation to torture, the City Court adjourned the examination of the complaint pending the outcome of the asylum proceedings.

By a faxed letter of 25 February 2009 the City Court informed the Russian Ministry of Foreign Affairs (“the MID”) about the applicant's case and his allegations of the risk of torture were he to be extradited to Tajikistan. The City Court asked the MID to present their position and to assist the court in obtaining information from the Tajikistani Ministry of Foreign Affairs on the issues raised by the applicant.

By a letter of the same date the City Court asked the Tajikistani Ministry of Foreign Affairs to submit its position and any relevant information on the applicant's allegations concerning the risk of torture and inhuman and degrading treatment should he be extradited to Tajikistan, and to verify those allegations via the relevant State authorities.

On 13 March 2009 the MID replied to the City Court that Tajikistan had become party to almost all the international instruments on the protection of human rights and that it had thereby confirmed its intention to build a democratic and secular state based on respect for the rule of law. A post of ombudsman had been created. The MID did not have any information to indicate that “the applicant's civil rights would be violated if he was extradited”. It does not appear that the Tajikistani Ministry of Foreign Affairs replied to the City Court's request.

On 20 April 2009 the City Court examined the applicant's complaint about the decision of 30 December 2008. The applicant and his lawyer attended the hearing

According to the hearing transcript, the applicant reiterated before the court his submissions concerning his alleged torture while in custody in Tajikistan. He submitted that the fact of his previous torture and the threats to his family members proved that he ran a risk of being subjected to such treatment again, should the extradition decision be upheld. The applicant's lawyer asked the court to release the applicant, stressing that he had been detained for a long period of time and that his detention had not been extended despite clear instructions from the Constitutional Court in that respect.

The City Court dismissed the applicant's complaint. The decision, in so far as relevant, read as follows:

“ [Mr] Gaforov is charged with having, in the period from August 2002 to February 2006 in the Sogdiyskiy Region of the Republic of Tajikistan, been an active member of the criminal organisation “Hizb ut-Tahrir al-Islami”, founded with the aim of violent seizure of power and overthrowing the constitutional order, which [organisation] had been banned by a court from the territory of the Republic of Tajikistan because of its extremist activities; [the applicant] is also charged with having financed the above organisation. During the relevant time period, being a member of that organised group and using the mass media, [the applicant] disseminated materials containing public appeals for the violent overthrow of the existing state regime to take control of the territory of the Republic of Tajikistan and seize power there. [The applicant] recruited citizens to the extremist organisation with a view to disrupting the constitutional order of the Republic of Tajikistan; made public appeals to engage in extremist activities; disseminated leaflets and other printed materials aimed at incitement to ethnic, racial, ..., religious hatred, degrading treatment, propaganda proclaiming the superiority of certain citizens based on their religious ... convictions, and the founding of an Islamic state “Caliphate” on the territory of the Republic of Tajikistan.

The [applicant's] actions are punishable under Russian criminal law and correspond to Article 210 § 2 [of the Russian Criminal Code] (participation in a criminal organisation); Article 278 (acts aimed at violent overthrow of the constitutional order); Article 280 § 2 (public appeals via the mass media to engage in extremist activities); Article 282 § 2 (c) (incitement to hatred and degrading treatment committed by an organised group through the mass media); Article 282-1 § 2 (membership of an extremist organisation); Article 282-2 § 2 (membership of an organisation banned by a final court decision because of its extremist activities); and Article 205-1 § 1 (financing terrorism). The above-mentioned offences carry penalties of over one year's imprisonment. The time-limits for [the applicant's] prosecution under Russian and Tajikistani law have not expired.

Moreover ... [the applicant] is charged with having absconded from custody ... on 24 May 2006 ...

The above-mentioned actions of [the applicant] are punishable under Article 313 § 1 of the Russian Criminal Code (escape from custody of a person detained on remand) and carry a penalty of over one year's imprisonment. The time-limits for [the applicant's] criminal prosecution under Russian and Tajikistani law have not expired ...

The decision of the Prosecutor General of the Russian Federation of 30 December 2008 is lawful and well-founded.

From the information submitted by the Russian FMS [Federal Migration Service] and its Moscow branch it follows that [the applicant] had not obtained Russian citizenship or applied for it in accordance with the law

At the court hearing [the applicant] explained that he had not applied for Russian citizenship; he had been arrested in Russia as a person whose name had been put on an international wanted list...; [he] had not applied for refugee status before his arrest because he thought that he would not be granted it as a wanted person; he was not a refugee, he had not been and was not being persecuted in the territory of the Republic of Tajikistan on political or any other grounds, except for his criminal prosecution; he had left his place of residence voluntarily, having fled from custody – [a fact] which proves that [the applicant] was deliberately hiding in the territory of the Russian Federation from the Tajikistani law enforcement bodies.

Thus, there are no grounds stipulated in international agreements or the legislation of the Russian Federation to prevent [the applicant's] extradition ...

The court has examined and dismissed [the applicant's] arguments, supported by his lawyer ... with reference to the opinion [заключение] of 13 March 2009 by specialist Ms Ryabinina and materials confirming, in their opinion, that he should not be extradited to Tajikistan on account of his possible persecution there. However, having applied to the FMS after his arrest pursuant to an international warrant, [the applicant] himself had explained that he feared extradition to Tajikistan because of the possibility of his conviction leading to a long term of imprisonment.

Hence, the court considers that there is no well-founded fear of [the applicant] becoming a victim of persecution in Tajikistan under Article 1 § 1-1 of the Refugees Act. Consequently, he does not satisfy the criteria to be granted refugee status because only 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, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to avail himself of the protection of that country as a result of such events, can be recognised as a refugee.

Furthermore, the receiving country furnished an assurance that [the applicant] would be prosecuted only for the crimes with which he had been charged. Moreover, the Republic of Tajikistan is party to almost all international legal instruments on human rights, and has thereby reaffirmed its intention to build a secular democratic state based on the rule of law; a post of Ombudsman had been created there.

The issue of whether [the applicant] is guilty of the crimes in respect of which [the Tajikistani authorities] have requested his extradition can only be assessed by a court in the requesting country examining the merits of the criminal case against him. Hence, [the applicant's] and his lawyer's arguments that he is not guilty and that the charges against him are fabricated are not subject to this court's examination.”

The City Court decision was silent on the issue of the applicant's detention.

On 21 April 2009 the applicant appealed to the Supreme Court of the Russian Federation (“the Supreme Court”), submitting that the City Court had failed to take into account his arguments, supported by materials from various NGOs, that he would be subjected to torture in the event of extradition. He also averred that the City Court had disregarded that at the time of its examination of the case appeal proceedings against the FMS decision to refuse him refugee status had been pending.

On 8 June 2009 the applicant lodged an additional appeal statement with the Supreme Court submitting that the City Court had failed to assess Ms Ryabinina's opinion and materials from various NGOs attesting to the existence of systematic problems with torture in Tajikistan and had limited its assessment to the MID letter stating merely that “there was no indication that [the applicant's] civil rights would be violated in the event of his extradition”. He stressed that the City Court had confused the risk of torture with the risk of criminal prosecution, although the applicant's position in that respect was unequivocal: he feared his extradition to Tajikistan because he had already been subjected to torture there and he had fled to Russia for that reason. The City Court's conclusion that he had voluntarily left Tajikistan was at odds with the fact that the applicant had fled from custody. Lastly, the City Court had exceeded its jurisdiction in finding that the applicant did not satisfy the criteria to be granted refugee status, as it was for the civil courts to rule on that matter.

On 8 June 2009 the Supreme Court of the Russian Federation (“the Supreme Court”) examined the applicant's appeal against the City Court decision. The applicant's lawyer was present at the hearing, but the applicant did not attend. At the hearing the applicant's lawyer filed a written request for release with the Supreme Court. He submitted that his detention in the absence of a judicial decision had exceeded the two-month limit set in Article 109 of the CCrP. In that connection he referred to Article 466 of the CCrP, the Constitutional Court's decisions nos. 101-0 and 333-O-P (see below) and the fact that the latest court decision to place him in custody had been taken on 16 September 2008. He also complained that the Babushkinskiy District Court and the Moscow City Court had refused to examine his complaints about his detention.

By a decision of the same date the Supreme Court dismissed the complaint, reproducing verbatim the text of the decision of 20 April 2009. The Supreme Court decision was silent on the matter of the applicant's detention.

On 23 October 2008 the applicant filed an application for asylum with the Moscow Department of the Federal Migration Service (“the Moscow FMS”), stating that he could not return to Tajikistan, where he had been subjected to ill-treatment. In particular, he submitted that in February 2006 he had been arrested by law enforcement officials who had tortured him with electricity and severely beaten him. Two days later he had been transferred to the MNS, where he had been kept in a damp basement together with eight other persons. He had not been fed and had been allowed access to the toilet only twice a day. The applicant and other detainees were systematically beaten up with a view to extracting confessions about their involvement with HT, to which they had finally had to confess because of the beatings. The MNS officers had forced the applicant and his fellow detainees to work on their construction site and had beaten them if they did not work properly. In May 2006, while at a construction site, he had escaped because he could no longer endure the violence.

In an interview with an official of the Moscow FMS on 28 November 2008, the applicant reiterated and confirmed his earlier submissions

On 15 December 2008 the Moscow FMS refused to grant the applicant asylum, finding that the reason for his request was his fear of being sentenced to a lengthy term of imprisonment if extradited. It further noted that when questioned by FMS officials, the applicant submitted that he had been unlawfully arrested by the Tajikistani law enforcement officials and that he had fled from custody because he had been severely ill-treated. The FMS concluded that the grounds referred to by the applicant did not constitute well-founded fear of being persecuted in his home country.

On 13 January 2009 the applicant appealed to the Zamoskvoretskiy District Court of Moscow (“the Zamoskvoretskiy District Court”) against the decision of 15 December 2008, submitting that the Tajik authorities were persecuting him on religious grounds in connection with his alleged membership of HT, a banned religious organisation. Referring to Article 3 of the Convention, he stressed that the migration authority had disregarded his consistent and convincing submissions in respect of the ill-treatment to which he had been subjected. Knowing that the Code of Civil Procedure made no provision for a detainee's transportation to court hearings concerning their civil claims, the applicant did not request the Zamoskvoretskiy District Court to secure his presence.

On 7 April 2009 the Zamoskvoretskiy District Court examined the applicant's complaint in the presence of his lawyer and dismissed it. The applicant was not brought to the hearing. The court found that in examining the applicant's application the Moscow FMS had obtained from the Russian Prosecutor General's Office and their Tajikistani counterpart materials concerning his criminal prosecution in Tajikistan. Those State bodies had not confirmed that the Tajikistani authorities were persecuting Tajikistani nationals because of their religious beliefs, or torturing them or treating them inhumanely in connection with criminal proceedings against them. Although the applicant had arrived in Russia in May 2007, he had applied for asylum only after his arrest with a view to extradition. In sum, the applicant had failed to adduce convincing reasons showing that he had well-founded fears of being persecuted in Tajikistan on political, racial, religious, national or ethnic grounds or because of his membership of a particular social group, and had only applied to the migration authorities because of his criminal prosecution.

On 20 April 2009 the applicant appealed against the decision of 7 April 2009, submitting that the Zamoskvoretskiy District Court had disregarded his detailed and consistent submissions concerning the illtreatment to which he had been subjected while in custody in Tajikistan and his persecution on religious grounds. He also averred that the district court had disregarded a number of reports of UN bodies and NGOs attesting to the widespread practice of ill-treatment of detainees by law enforcement authorities in Tajikistan.

On 25 June 2009 the Moscow City Court set aside the decision of 7 April 2009 and remitted the case at first instance for fresh examination.

On 10 September 2009 the Zamoskvoretstkiy District Court upheld the migration authority's refusal to grant the applicant asylum, reproducing almost verbatim the reasoning of its decision of 7 April 2009. The court also noted that as the applicant only feared criminal prosecution and thus did not qualify for asylum it would not attach any weight to his submissions concerning the risk of ill-treatment in Tajikistan in the event of extradition and the general human rights situation in that country.

The applicant appealed against the decision. Referring to reports of various NGOs, he stressed that the problem of ill-treatment of detainees persisted in Tajikistan and that he feared his extradition not only because of the general situation in the country but also because of his own experience of ill-treatment at the hands of the Tajikistani State officials, who were persecuting him on religious grounds. However, the District Court had refused to take that information into account and limited its assessment to the information provided by the Russian State authorities.

On 26 January 2010 officers of the United Nations High Commissioner for Refugees (“the UNHCR”) interviewed the applicant in the remand facility in connection with his application for international protection.

On 28 January 2010 the City Court upheld the decision of 10 September 2009 in the presence of the applicant's lawyer. The City Court decision, in its relevant part, stated:

“On 28 November 2008 [Mr] Gaforov, a national of the Republic of Tajikistan, held in IZ-77/4 in Moscow, applied for refugee status.

In his questionnaire [анкета] and report form [опросный лист] [the applicant] stated that there was a real risk of his persecution by law enforcement officials who had arrested him in 2006 in Khudzhand and charged him with being a member of HT. Moreover, [the applicant] stated that he feared criminal prosecution and had been subjected to ill-treatment while in detention [in Tajikistan].

In arriving at its conclusions the [Moscow FMS] examined information submitted by the Russian Prosecutor General's Office and concerning [the applicant's] prosecution by the Tajikistani prosecutor's office on various charges under Articles of the Tajikistani Criminal Code.

There is no indication of [the applicant's] persecution on religious grounds in the Bobodzhon-Gafurovskiy prosecutor's office's decision of 6 May 2006 to charge the applicant [with his activities within HT].

From the impugned decision [of the Moscow FMS] it transpires that in arriving at its conclusions the authority took into account information from the [Russian] Prosecutor General's Office and their Tajikistani counterpart.

In examining [the applicant's] complaint, the [District] court correctly established that the applicant had not referred to any humanitarian reasons to be granted temporary asylum in the Russian Federation, such as precise details of his personal persecution by the Tajikistani authorities, [or stated] that in the event of his return there existed a real risk to his personal safety from the [Tajikistani] authorities. He had not justified his application for temporary asylum by his state of health or the need for medical assistance. He also failed to submit any evidence that there were obstacles to his returning to Tajikistan.”

On 8 February 2010 the applicant applied to the Moscow FMS for temporary asylum. The outcome of those proceedings is unclear.

On 10 March 2010 the UNHCR office informed the applicant's lawyer that it had examined her client's application for international protection. The examination established that the applicant was “outside his country of nationality due to well-founded fear of being persecuted by the authorities of his country for reasons of imputed political opinions”, that he was “unable to return to the Republic of Tajikistan” and thus “eligible for international protection under the UNHCR mandate”.

On 7 August 2008 the Nagatinskiy District Court of Moscow ordered the applicant's placement in custody pending extradition, with reference to Articles 97, 99, 101 and 108 of the Russian CCrP and Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention” – see the Relevant Domestic Law below). The court stated, in particular, that the applicant was charged under the Tajikistani Criminal Code with a crime carrying a sentence of imprisonment, that he had fled from custody, did not have a permanent place of residence or registration in Russia and might, consequently, again abscond to avoid prosecution. It further stated that the need to place the applicant in custody was also justified by his eventual extradition to Tajikistan, and that the related proceedings had been instituted following the Tajik authorities' petition under Article 61 of the Minsk Convention. The decision did not specify the term of the applicant's detention and stated that it was open to appeal before the Moscow City Court within three days after its delivery. There is no indication that the applicant challenged the decision on appeal.

On 16 September 2008, the Simonovskiy District Court of Moscow ordered the applicant's placement in custody pending extradition, referring to Article 466 § 1 of the CCrP and Article 60 of the Minsk Convention. The court stated that the Russian Prosecutor General's Office was verifying the materials in respect of the applicant's extradition and that no grounds preventing it had been established. On 7 August 2008 the Nagatinskiy District Court had ordered the applicant's placement in custody pending receipt of the formal request for his extradition under Article 61 of the Minsk Convention. By the time of the examination of the case by the Simonovskiy District Court, that request had been received. The applicant was charged with having escaped from custody which, under the Tajikistani Criminal Code, was punishable with over two years' imprisonment. Furthermore, the applicant had absconded, he did not have a permanent place of residence or a permanent job in Russia and his name was on the international list of wanted persons. Hence, the applicant's requests for application of a non-custodial preventive measure were unfounded and he was to be remanded in custody. The decision did not set a time-limit for the applicant's detention and stated that it was open to appeal before the Moscow City Court within three days after its delivery. There is no indication that the applicant challenged the decision on appeal.

On 21 January 2009 the applicant complained to the Babushkinsky District Court of Moscow that his detention in the absence of a judicial decision had exceeded the two-month term set in Article 109 of the CCrP. He referred to Article 466 of the CCrP, Constitutional Court decisions nos. 101-0 and 333-O-P (see the section on Relevant Domestic Law below) and the fact that the latest court decision to place him in custody had been taken on 16 September 2008. He requested his immediate release.

On 27 January 2009 the Babushkinskiy District Court disallowed the applicant's complaint, finding that he had failed to comply with the formal requirements for lodging a civil claim, laid down in the Code of Civil Procedure. The applicant was invited to rectify the shortcomings and informed of his right to appeal against the decision.

On 14 September 2009 the applicant complained about his detention to the Nagatinskiy District Court. In particular, he averred that the latest detention order authorising his placement in custody was dated 16 September 2008 and that neither that decision nor the previous one dated 7 August 2008 specified the term of his detention. In any event, since 16 September 2008 the Nagatinskiy prosecutor's office had not requested the courts to extend his detention pursuant to Article 109, so it had become unlawful after the expiry of the two initially authorised two-month terms; that is to say that out of the thirteen months the applicant had spent in custody, nine months of that detention had been unlawful. Furthermore, the Babushkinskiy District Court had refused to examine the applicant's complaint about detention and the City Court had likewise disregarded his request for release submitted at the hearing of 20 April 2009. Relying on Articles 5 §§1 and 4 of the Convention, the Court's case-law, Articles 109 and 110 of the CCrP and the practice of the Constitutional Court, the applicant insisted that his detention had been unlawful, that he had not been provided with an effective remedy to complain about it and that the applicable legislation did not meet the requisite standards of quality of the law. Lastly, he argued that the extradition check against him had been finalised on 30 December 2008 and that after that date no action was taken with a view to extraditing him.

On 21 September 2009 the Nagatinskiy District Court refused to examine the applicant's complaint. It held firstly that the applicant had failed to appeal against the decision of 7 August 2008 within the required time-limits. As to the alleged inaction of the prosecutor's office, it was open to the applicant to complain about it under Article 125 of the CCrP to the Simonovskiy District Court, which had territorial jurisdiction over the matter.

On 21 October 2009 the applicant appealed against that decision to the Moscow City Court.

On the same date the applicant complained to the Simonovskiy District Court, reiterating his submissions made in the complaint of 14 September 2009.

By a letter of 29 October 2009 the Simonovskiy District Court returned the applicant's complaint of 21 October 2009, stating that in the Russian Federation criminal proceedings were conducted in accordance with the provisions of the CCrP and that the applicant had failed to refer to any provisions of the CCrP in his submissions.

On 8 December 2009 the applicant complained to the Prosecutor General's Office about his detention, averring that he had been held in custody for sixteen months and that twelve months of that detention had been unlawful because the prosecutor's office had failed to request the courts to extend it. He also stressed that the decision to extradite him had become final in June 2009, after which date no action had been taken with a view to extraditing him.

On 21 December 2009 the Moscow City Court dismissed the applicant's appeal against the decision of 21 September 2009. It held, in particular, that it was open to the applicant to complain about his detention to a court having territorial jurisdiction or to an appeal court.

On 30 December 2009 the Prosecutor General's Office replied to the applicant that his detention had been authorised first by the Nagatinskiy and then by the Simonovskiy District Court, pursuant to Article 466 § 1 of the CCrP. According to Article 109 of the CCrP, the maximum term of detention of persons charged with particularly serious crimes was up to eighteen months. The Prosecutor General's Office had decided on the applicant's extradition on 30 December 2008, that is within the required time-limit. The applicant's ensuing detention was prompted by his appeals to the courts against the extradition order and by the decision of the European Court of Human Rights to apply Rule 39 of the Rules of Court. As to the Supreme Court Ruling of 29 October 2009 (see below), it was applicable only to persons in respect of whom the Russian authorities were carrying out an extradition check, and not to those in respect of whom the Prosecutor General's Office had already issued an extradition order. In the applicant's case the Prosecutor General's Office had decided on 30 December 2008 to extradite him and that decision was to be enforced.

On 22 January 2010 the Ombudsman to the President of the Russian Federation (“the ombudsman”) wrote to the Prosecutor General of the Russian Federation stating, in particular, that the European Court of Human Rights had recently found a breach of Article 5 of the Convention on account of the unsatisfying quality of the law in several cases involving persons detained pending extradition. Yet the practice continued, in breach of the applicable Russian legislation, of keeping in custody foreign nationals whose detention on remand had not been extended. The ombudsman opined that the problem lay in the domestic authorities' inconsistent practice in applying the relevant legislation, and had persisted even after the Constitutional Court's Ruling no. 101-O and the Supreme Court's Ruling no. 22 (see Relevant Domestic Law below). The ombudsman referred to the Yuldashev, Isakov, Khaydarov and Sultanov cases, which were pending before the Court, in which the term of the applicants' detention pending extradition had exceeded the eighteen-month maximum term laid down in Article 109 of the CCrP.

The ombudsman further stressed that on 5 February 2010 the eighteen-month maximum detention term was about to expire for the applicant in the present case and that the domestic courts had twice authorised his remand in custody without setting any time-limit for his detention. He also stated that the Government were justifying the detention on remand of the applicants in the above-mentioned cases by the fact that the Strasbourg Court had indicated to them under Rule 39 to suspend their extradition. However, nothing in the Strasbourg Court's Rules provided for the respondent State's obligation to hold detainees whose extradition was suspended in custody in breach of the Russian legislation. Lastly, the ombudsman asked the Prosecutor General to carefully examine the situation of the persons mentioned in his letter, in particular with regard to the extension of their detention for an unlimited period of time, and to further improvement of the legislation and its correct application in order to prevent possible violations of the Convention.

By a letter of 8 February 2010 the Deputy Prosecutor General of the Russian Federation replied to the ombudsman. The letter, in so far as relevant, read as follows:

...the decisions to extradite the applicants in the cases mentioned [in your letter] were taken within the time-limits established by Article 109 of the CCrP, the lawfulness of those decisions was verified by the courts and those decisions are bound to be executed. To release the above-mentioned persons from custody would entail breach by the Russian Federation of its international obligations concerning extradition.

The possibility to apply the provisions of the CCrP in respect of the time-limits for the detention of persons held in custody pending extradition was first mentioned in Constitutional Court Ruling no. 101-O ... In its Ruling... no. 158-O the Constitutional Court stated that in its previous Ruling no. 101-O it had not, and could not have, established what particular provisions of the CCrP were to regulate the procedures and time-limits for the detention of persons in custody pending extradition ... as it had no jurisdiction in the matter ...

The Supreme Court, in its replies of 9 August and 6 October 2008 to the Prosecutor General's requests for clarification, explained that in deciding on procedures and time-limits for the detention of persons detained pending extradition, the authorities were to apply the provisions of the CCrP. However, this issue had never been examined by the Plenary of the Supreme Court and the practice of the domestic authorities in this respect had not been studied or summarised.

Until 29 October 2009 there was no uniform judicial practice on this category of cases in different regions of the Russian Federation. Some judges requested that the time-limits for detention be extended, others refused to extend those time-limits, considering it unnecessary.

On 26 November 2009, following the Supreme Court's Ruling no. 22 ..., the Prosecutor General's office sent out to prosecutors in all regions of the Russian Federation an information letter explaining the order on extending the time-limits for the detention of persons in respect of whom the extradition check was pending and the decision to extradite was not yet final... Further time-limits for the detention of a person pending extradition are regulated by Article 467 of the CCrP.

The lengthy detention of Mr Yuldashev, Mr Isakov, Mr Khaydarov, Mr Sultanov and [the applicant] Mr A.Gaforov ... is at the present moment a consequence of the European Court's application of Rule 39 of the Rules of Court pending the examination of their cases [by the Strasbourg Court].”

On 23 April 2010 the Babushkinskiy district prosecutor ordered the applicant's release from custody, finding that the time-limits for his detention under Article 109 of the CCrP had expired and that there was no reason to extend his detention.

On the same date the Babushkinskiy District Court dismissed the prosecutor's request to confine the applicant to the detention centre for foreign nationals [центр содержания иностранных граждан ГУВД по г. Москве]. The court held that only persons charged with administrative offences could be held in the above-mentioned centre and that, in any event, the maximum time-limits for the applicant's detention had expired pursuant to Articles 107-109 of the CCrP.

It appears that the applicant was released shortly thereafter.

Chapter 13 of the CCrP governs the application of preventive measures. Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond, continue to engage in criminal activities, threaten witnesses or hinder the investigation (Article 97). When deciding on the necessity to apply a preventive measure, it is necessary to take into account the gravity of the charges and the various personal details of the person concerned (Article 99). Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 108 § 3). The request should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level, further to a request lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 109 § 2). Further extensions up to twelve months may be granted at the request of an investigator, with the approval of a prosecutor of the Russian Federation, only if the person is charged with a serious or particularly serious criminal offence or offences (Article 109 § 3).

Chapter 16 of the CCrP lays down the procedure by which acts or decisions of a court or public official in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125).

Under Article 466 § 1, upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his or her deputy is to decide on the preventive measure in respect of the person whose extradition is sought “in accordance with the established procedure”. If a foreign court's decision to place a person in custody is appended to the extradition request, a prosecutor is entitled to place that person under house arrest or remand him or her in custody without the Russian courts validating his decision (Article 466 § 2).

The Custody Act (Law no. 103-FZ of 15 July 1995) lays down the procedure and conditions for the detention of persons arrested under the CCrP on suspicion of criminal offences; it also applies to persons suspected or accused of criminal offences who are remanded in custody (Article 1). Persons suspected or accused of criminal offences have a right to lodge complaints with a court or another authority concerning the lawfulness and reasonableness of their detention (Article 17(7)).

The Constitutional Court examined the compatibility of Article 466 § 1 of the CCrP with the Russian Constitution and reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.

In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCrP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP, or in excess of the time-limits fixed therein.

The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition.

The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction.

In this decision the Constitutional Court reiterated that Article 466 of the CCrP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure.

By a decision (решение) of 14 February 2003 the Supreme Court of the Russian Federation granted the Prosecutor General's request and classified a number of international and regional organisations as terrorist organisations, including HT (also known as the Party of Islamist Liberation), and prohibited their activities on Russian soil. It held that HT aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States.

By a Directive Decision No.1 adopted by the Plenary Session of the Supreme Court of the Russian Federation on 10 February 2009, (“Directive Decision of 10 February 2009”) the Plenary Session issued several instructions to the courts on the application of Article 125 of the CCrP. The Plenary reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke Article 125 of the CCrP to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stated that whilst the bulk of decisions amenable to judicial review under Article 125 also included decisions to institute criminal proceedings, refusals to admit a defence counsel or to grant victim status, a person could not rely on Article 125 to challenge a court's decision to apply bail or house arrest or to remand a person in custody. It was further stressed that in declaring a specific action or inaction of a law enforcement authority unlawful or unjustified, a judge was not entitled to annul the impugned decision or to oblige the official responsible to annul it but could only request him or her to rectify the indicated shortcomings. Should the authority concerned fail to comply with the court's instructions, an interested party could complain to a court about the authority's inaction and the latter body could issue a special decision [частное определение], drawing the authority's attention to the situation. Lastly, the decision stated that a prosecutor's decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under Article 125 of the CCrP.

In a Directive Decision No. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“Directive Decision of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCrP, only a court could order placement in custody of a person in respect of whom an extradition check was pending and the authorities of the country requesting extradition had not submitted a court decision to place him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor's petition to place that person in custody. In deciding to remand a person in custody a court was to examine if there existed factual and legal grounds for applying the preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court's authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor's decision could be challenged in the courts under Article 125 of the CCrP. In extending a person's detention with a view to extradition a court was to apply Article 109 of the CCrP.

Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers 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.”

The Council of Europe Commissioner for Human Rights issued a Recommendation (CommDH(2001)19) on 19 September 2001 concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows:

“11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.”

For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007 V.

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

Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60).

The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3).

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 requisite supporting documents within forty days from the date of placement in custody (Article 62 § 1).

The “Conclusions and Recommendations: Tajikistan”, issued by the UN Committee against Torture on 7 December 2006 (CAT/C/TJK/CO/1), pointed out the following areas of concern regarding the human rights situation in the country:

“The definition of torture provided in domestic law ... is not fully in conformity with the definition in article 1 of the Convention, particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity.

There are numerous allegations concerning the widespread routine use of torture and ill-treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings. Further, there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill-treatment.

The Committee is also concerned at:

(a) The lack of a legal obligation to register detainees immediately upon loss of liberty, including before their formal arrest and arraignment on charges, the absence of adequate records regarding the arrest and detention of persons, and the lack of regular independent medical examinations;

(b) Numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest, due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials;

(c) Reports that unlawful restrictions of access to lawyers, doctors and family by State agents are not investigated or perpetrators duly punished;

(d) The lack of fundamental guarantees to ensure judicial supervision of detentions, as the Procuracy is also empowered to exercise such oversight;

(e) The extensive resort to pretrial detention that may last up to 15 months; and

(f) The high number of deaths in custody.

There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the Convention by both law enforcement officials and investigative bodies.

There are reports that there is no systematic review of all places of detention, by national or international monitors, and that regular and unannounced access to such places is not permitted.”

The report by Amnesty International entitled “The State of The World's Human Rights”, released in 2007, in so far as relevant, reads as follows:

There were continuing reports of unlawful arrests and widespread and routine torture or other ill-treatment by law enforcement officers, several of whom were sentenced to prison terms.

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.”

In its “World Report 2008 – Tajikistan” of 31 January 2008 the Human Rights Watch stated as follows:

“Tajikistan's human rights situation continues to be characterized by lack of access to justice, due process violations, incommunicado detention, and ill-treatment in custody. The government interferes with opposition political parties. Government harassment of non-traditional religious groups and Muslim groups that are independent of state-controlled religious bodies has intensified.

Torture and Ill-treatment in Custody

Human rights organizations and lawyers continue to receive reports of arbitrary arrests, violations of detention procedures and fair trial standards, and credible, serious allegations of ill-treatment and torture in detention. Defense lawyers themselves are subject to threats and harassment if they insist on effective assistance of counsel.

Tajikistan has not amended its law on torture to comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. Law enforcement officials can be charged with "abuse of professional competency" (criminal code article 314), but not with torture. National legislation does not prohibit torture evidence from being admitted at trial.

Impunity for ill-treatment in detention continues to be widespread. There were, however, at least two cases in 2007 in which law enforcement officers were prosecuted for ill-treatment. In April police lieutenant Nurullo Abdulloev was sentenced to seven years' imprisonment by a court in Kulyab for the unlawful detention and ill-treatment of two detainees. In another case in April, two police officers were each sentenced to two years' imprisonment for beating and torturing with electrical shock a 15-year-old boy in the capital, Dushanbe. All three men were convicted under article 314.

Actions in the Name of Countering Terrorism and Extremism

In 2007 law enforcement bodies continued to arrest individuals simply because they were accused of possessing leaflets of Hizb ut-Tahrir, a banned Islamic organization, and at least three alleged Hizb ut-Tahrir members were sentenced to more than 10 years' imprisonment each for "incitement of ethnic and religious hatred" and "membership in extremist organizations." In the first case of a child being imprisoned for membership in Hizb ut-Tahrir, Muminbek Mamedov, a 17-year-old boy, was sentenced to eight years' imprisonment.

In January the Supreme Court banned another 10 organizations, including the Islamic Movement of Turkestan, as "extremist." In August a small Islamist group, Mavlavi, was banned on the grounds that it holds "unsanctioned gatherings."

Uzbek and Tajik citizens continue to be arrested for alleged membership in the Islamic Movement of Uzbekistan. In these highly political cases involving terrorism charges, the suspects are frequently denied procedural protection and the right to a fair trial, and routinely suffer from inhumane treatment in detention.

Visiting Tajikistan in April, United Nations High Commissioner for Human Rights Louise Arbour called on the government to ensure better access to justice and to allow local and international monitors, including the International Committee of the Red Cross, to visit detention places. Asma Jahangir, the UN special rapporteur on freedom of religion or belief, visited Tajikistan in February, concluding that religious communities and individuals faced "challenges," and underscoring the importance of the government's ensuring that "especially vulnerable individuals" be protected "from harassment by non-State actors in the name of religion."

In March the UN Human Rights Committee issued two decisions on applications alleging abuses by Tajik authorities. It found that in both Ashurov v. Tajikistan, and Karimov and Nursatov v. Tajikistan the victims had been subjected to torture and unfair trial. The decisions urge Tajik authorities to ensure effective remedy to the applicants, including compensation, and in the Ashurov case to immediately release the victim. At this writing the government has not implemented the decisions.”

In its monthly report of November 2008 the Bureau on Human Rights and the Rule of Law, an NGO established in Tajikistan, provided the following information on the situation regarding torture in detention in that country:

“In Tajikistan only 2% of victims of torture are able to prove that fact and have the perpetrators punished... This conclusion is based on the findings of the research of practice of ill-treatment by law enforcement officials at arrest and during the preliminary investigation carried out by the League of lawyers and the public foundation “Panorama”. Having interviewed the victims, the researchers came to the following conclusions.

The detainees stated that they had been subjected to the following methods of illtreatment: psychological pressure – 24%; being hit, kicked and beaten with truncheon on different parts of the body – 32,5%; threats of physical violence – 12,5%. 32% of victims stated that they had been simultaneously subjected to various forms of torture, in particular, torture with electricity, threats and beatings.

57% of victims of torture and ill-treatment suffered from psychological disorder, one third of the interviewed had bodily injuries. 3% of victims of torture or illtreatment had grave bodily injuries. There were also fatal cases [among those examined by the researchers]. There were suspiciously many cases of suicides committed in custody.

The research showed that the perpetrators were mostly unpunished. The main reason for this was that the majority of victims of torture were not complaining to law enforcement bodies. Only 24% [of the interviewed] submitted such complaints. The main reasons for failure to complain were fear of reprisals (44,5%), lack of trust towards the law enforcement officials (29%), lack of knowledge of the relevant procedures (6,7%)....”

The World Report chapter on Tajikistan by Human Rights Watch released in January 2009, in so far as relevant, reads as follows:

“Actions in the Name of Countering Terrorism and Extremism

Following a recommendation by the prosecutor general, the Supreme Court of Tajikistan designated Hizb ut-Tahrir, a group that supports the reestablishment of the Caliphate, or Islamic state, by peaceful means, an "extremist" organization. The government continued to arrest alleged Hizb ut-Tahrir members and convict them either of sedition or incitement to racial, ethnic, or religious hatred, often simply for possessing the organization's leaflets.

Torture and Deaths in Custody

Tajikistan's definition of torture does not comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. In a positive move, in March 2008 the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings.

Experts agree that in most cases there is impunity for rampant torture in Tajikistan. In one of the few cases that reached the courts, two policemen in Khatlon province were convicted in August 2008 for ill-treating minors; one of the two received a fouryear prison sentence, and the other a suspended sentence.

NGOs and local media reported at least three deaths in custody in 2008, including the death from cancer of the ex-deputy chair of the Party of Islamic Revival Shamsiddin Shamsiddinov. The party alleged his arrest in 2003 was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery.

In an April 1, 2008 decision (Rakhmatov et al. v. Tajikistan) the UN Human Rights Committee found that Tajikistan violated the rights, including freedom from torture, of five applicants, two of them minors when they were arrested. Tajikistan failed to cooperate with the committee's consideration of the complaint. Similar violations were established in an October 30, 2008 decision (Khuseynov and Butaev v. Tajikistan)”.

In January 2010 the Human Rights Watch released its World Report 2010, where the chapter on Tajikistan, in so far as relevant, states:

“Torture is routinely used by law enforcement officials, and the Tajik government continues to deny human rights groups access to places of detention.

Torture

Torture is practiced by law enforcement officers and within the penitentiary system in a culture of near-impunity. It is often used to extract confessions from defendants, who during initial detention are often denied access to family and legal counsel. To date the Tajik government has refused all requests from human rights groups to visit detention sites, interrogation rooms and prisons.

Tajikistan's definition of torture does not fully comply with recommendations made to the country by the United Nations Committee against Torture in November 2006. In a small sign of a progress, local and international human rights groups recently completed a campaign to document instances of torture in Tajikistan, as part of a twoyear project funded by the European Union. That project, which was run in Tajikistan by the Bureau on Human Rights and the Rule of Law, determined that over the past two years there had been more than 90 cases of torture.

Freedom of Religion

There continued to be reports of the Tajik authorities prosecuting alleged members of Hizb ut-Tahrir, an international Islamic organization that is banned in several countries in the region, and sentencing them to long prison terms on questionable evidence.”

The 2009 US Department of State Country Report on Human Rights Practices, released on 11 March 2010, in so far as relevant, reads as follows:

“The government's human rights record remained poor, and corruption continued to hamper democratic and social reform. The following human rights problems were reported: ... torture and abuse of detainees and other persons by security forces; impunity of security forces; denial of right to fair trial; harsh and life-threatening prison conditions; prohibition of international monitor access to prisons; ...

The law prohibits [cruel, inhumane or degrading treatment or punishment], but some security officials used beatings or other forms of coercion to extract confessions during interrogations, although the practice was not systematic. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture.

In Sughd region, four suspects arrested in a murder case claimed investigators tortured them seeking to extract confessions. One suspect claimed an investigator threatened to 'ruin' his daughter if he did not confess to a crime. The same individual stated he lost toenails as a result of torture while in custody. The courts dismissed the individual's claim of torture, and he was convicted of murder and other crimes and sentenced to 30 years in prison. Several individuals held in Dushanbe city jails also claimed they were beaten while in custody. Articles in the criminal code do not specifically define torture, and the country's law enforcement agencies have not developed effective methods to investigate allegations of torture. According to a report during the year by Human Rights Watch, 'Experts agreed that in most cases there is impunity for rampant torture in Tajikistan'.

In an April 2008 court decision (Rakhmatov et al. v. Tajikistan) the UN Human Rights Committee found that the government violated the human rights, including freedom from torture, of three adults and two minors. The committee also noted that the government failed to cooperate with the committee and that similar allegations were substantiated in an October 2008 court decision (Khuseynov and Butaev v. Tajikistan). Denial of access to detention centres impeded efforts to determine if any improvements had occurred since then.

The Ministry of Justice (MOJ) continued to deny access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions. Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions, but their representatives were limited to administrative or medical sections, and MOJ personnel accompanied them. The government did not sign an agreement with the International Committee of the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centres, and the ICRC's international monitoring staff has not returned to the country since 2007.

Detainees and inmates described harsh and life-threatening prison conditions, including extreme overcrowding and unsanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons. Organizations such as the UN Human Rights Council reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor.

The government placed few checks on the power of prosecutors and police to make arrests. The criminal justice system operated under the criminal procedure code based on a 1961 Soviet law. Individuals reported that some prosecutors and courts pressed questionable criminal charges and that some officials influenced judges inappropriately to get convictions. In December the government approved a new criminal procedure code to replace the existing code in April 2010.

Victims of police abuse may submit a formal complaint in writing to the officer's superior or the Office of the Ombudsman. Most victims chose to remain silent rather than risking retaliation by the authorities.

By law prosecutors are empowered to issue arrest warrants, and there is no requirement for judicial approval of an order for pre-trial detention. Police may detain a suspect without a warrant in certain circumstances, but a prosecutor must be notified within 24 hours of arrest. After a warrant is issued, the police may hold a suspect 72 hours before arraignment. Defence advocates alleged that prosecutors often held suspects for longer periods and only registered the initial arrest when the suspect was ready to confess. Pre-trial detention may last as long as 15 months in exceptional circumstances.

Prosecutors oversee pre-trial investigation and have the right to initiate criminal proceedings. Individuals have the right to an attorney upon arrest and the government must appoint lawyers for those who cannot otherwise afford one. In practice the government provided few attorneys for public defence, and these attorneys were generally ineffective. There is no bail system, although criminal detainees may be released conditionally and restricted to their place of residence pending trial. The typical length of pre-trial detention was two to three months.

According to the law, family members are allowed access to prisoners only after indictment; officials occasionally denied attorneys and family members access to detainees. Authorities held detainees charged in crimes related to national security incommunicado for long periods without formally charging them. In January, after relatives of former citizen Muhammadi Salimzoda sought his whereabouts for five months, the SCNS admitted that Salimzoda had been in state custody the entire period. Salimzoda was sentenced to 29 years' imprisonment for espionage and attempting to overthrow the government, but he claimed security personnel obtained his confession to the crimes under physical and psychological duress.

The government generally provided a rationale for arrests, although some detainees claimed that authorities falsified charges or inflated minor problems to make politically motivated arrests. Some police and judicial officials regularly accepted bribes in exchange for lenient sentencing or release.

Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests. Opposition parties and local observers claimed the government selectively prosecuted political opponents. There was no reliable estimate of the number of political prisoners, but former opposition leaders claimed there were several hundred such prisoners held in the country, including former fighters of the UTO.

In February Rustam Fayziev, deputy chairman of the unregistered Party of Progress, died in prison after four years of confinement for insulting and defaming President Rahmon in a 2005 unsent, unpublished letter. The government claimed his death was the result of natural causes. Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in prison following his unlawful extradition from Russia and 2005 conviction for corruption. Former interior minister Yakub Salimov remained in prison serving a 15-year sentence for crimes against the state and high treason following his 2005 closed trial.”

The chapter “Tajikistan” in the Amnesty International report “The State of the World's Human Rights”, released in May 2010, states, in so far as relevant:

“The Government continued to exert tight control over the exercise of religion. Reports of torture and other ill-treatment by law enforcement officers continued.

Torture and ill-treatment

Report of torture and ill-treatment by law enforcement officials continued, in particular, to extract confessions during the first 72 hours, the maximum period suspects could be held without charge.

On 27 June, Khurshed Bobokalonov, a specialist in the Tajikistani Oncology Centre, dies after being arrested by the police. He had been walking along the street when the police stopped him and accused him of being drunk. He protested, and some 15 policemen bundled him into a police car. The Ministry of the Interior claimed that he died of a heart attack on the way to the police station. His mother reported injuries on her son's face and body, and on 22 July the Minister of the Interior announced an investigation into possible “death through negligence”. There was no public information about the progress of the investigation by the end of the year.”


Violation of Art. 6-1 (non-enforcement);Not necessary to examine Art. 13;Violation of P1-1;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in 1931, 1948, 1954 and 1944 respectively and live in Tirana (Albania) and Varese (Italy).

The applicants’ father owned a villa with a surface area of 42.70 sq. m and two adjacent plots of land measuring approximately 46.70 sq. m and 48.55 sq. m respectively. From 1946 to 1978 the applicants’ father rented the villa to B.N.’s father.

On an unspecified date, as the villa was uninhabitable, the State granted the applicants’ father a compulsory loan of 16,204 leks (ALL) for renovation of the villa.

In 1976 B.N. constructed two additional buildings on the plot of land measuring 48.55 sq. m. By a decision of 23 February 1976 the Tirana District Court allocated the additional buildings to B. N.

As a result of the applicants’ father’s failure to repay the debt, the villa was nationalised by virtue of decision no. 133 of 14 July 1978. From 1978 onwards B.N.’s family continued to live in the villa as tenants of a State-owned property.

In 1996, pursuant to the Property Restitution and Compensation Act (“the Property Act”), the applicants lodged a claim with the Tirana Commission on Property Restitution and Compensation (Komisioni I Kthimit dhe Kompensimit te Pronave).

On 22 May 1996 the Tirana Commission, holding that the nationalisation of the applicants’ father’s villa had been illegal, awarded the applicants the villa (with a surface area of 42.70 sq. m) and the plot of land measuring 46.70 sq. m, subject to the repayment of ALL 1,204 (representing the outstanding amount of their father’s unpaid debt to the State which had led to the nationalisation of the properties). With regard to the plot of land measuring 48.55 sq. m, in view of B.N.’s investment in the additional building, the Commission upheld his right of first refusal on the purchase of the land.

On an unspecified date in 1997, B.N., the tenant of the villa which had been allotted to the applicants, brought a civil action before the Tirana District Court, claiming property rights over the villa and the adjacent plot of land. Moreover, he alleged that the Commission’s decision of 22 May 1996 should be declared null and void, in so far as it was in breach of section 13 of the Property Act.

On 15 July 1997 the Tirana District Court declared the Commission’s decision of 22 May 1996 null and void. It found that according to an expert report, the outlays by the State and B.N.’s father on structural changes and annexes to the original building amounted to more than 85% of the property’s original value. The Commission’s decision was therefore held to have been in breach of section 13 of the Property Act.

On 7 November 1997 the Tirana Court of Appeal, having examined an appeal by the applicants alleging a violation of their property rights, upheld the District Court’s decision and dismissed the appeal.

The applicants appealed to the Civil Division of the Supreme Court, which on 6 May 1998 quashed the decisions of the above courts. It held that the decisions had been based on an expert report which was illogical and contained incorrect calculations and accordingly sent the case back for rehearing.

On 11 April 2001 the Tirana Court of Appeal, rehearing the case, declared the Commission’s decision null and void. Relying on a new expert report, it held that the nationalisation of the applicants’ father’s villa had been in accordance with substantive law requirements at the material time and that, consequently, the applicants could not benefit from the process of restitution of property. Moreover, the court upheld the applicants’ property rights over the two adjacent plots of land and, pursuant to section 16 of the Property Act, decided on their right to receive compensation in one of the forms provided for by law.

On 15 February 2002 the Civil Division of the Supreme Court dismissed an appeal by the applicants as being ill-founded.

The applicants lodged an appeal with the Constitutional Court on the basis of Article 131 (f) of the Constitution. They alleged that the Supreme Court’s decision and the Court of Appeal’s judgment had been unconstitutional.

On 24 September 2002 the Constitutional Court, in accordance with section 31 of the Constitutional Court Organisation and Operation Act (Law no. 8577 of 10 February 2000), decided de plano to declare the applicants’ complaint inadmissible as being “outside its jurisdiction”.

In a letter of 22 March 2004 the applicants informed the Registry that the authorities had failed to comply with the final decision of 11 April 2001 relating to the compensation issue.

The Albanian Constitution reads as follows:

“1. The right of private property is protected by law.

Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided for by the Civil Code.

The law may provide for expropriations or limitations in the exercise of a property right only in the public interest.

Expropriations, or limitations of a property right that are equivalent to expropriation, shall be permitted only in return for fair compensation.

A complaint may be lodged with a court to resolve disputes regarding the amount/extent of compensation due.”

“In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”

“State bodies shall comply with judicial decisions.”

“The Constitutional Court shall decide on: ...

(f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”

“1. Within two to three years from the date when this Constitution enters into force, Parliament, guided by the criteria laid down in Article 41, shall pass laws for the just resolution of different issues relating to expropriations and confiscations carried out before the approval of this Constitution.

Laws and other normative acts relating to expropriation and confiscation that were passed before the entry into force of this Constitution shall be applied provided they are compatible with the latter.”

The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) underwent several amendments during the past ten years.

The Property Act of 1993 (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996), as in force at the time, in its relevant parts reads as follows:

“Former owners and their legal heirs have the right of ownership. A former owner shall have the right either to have allocated the original land or to be awarded compensation in kind if one of the following conditions is met:

(1) the alleged property was pasture, meadow, forestry land, or agricultural or non-agricultural land;

(2) the alleged property was not subject to Law no. 7501 of 19 July 1991;

(3) the alleged property is currently State-owned;

(4) the alleged property has been designated as suitable for construction and is situated within the boundaries of a city.

The restitution or compensation in kind shall not exceed 10,000 sq. m pursuant to section 1(4) of Decree no. 1359 of 5 February 1996, as amended by Law no. 8084 of March 7 1996.”

“Former owners shall be entitled to restitution of their former buildings without having to repay outlays made by the Government or other owners on structural alterations, annexes or floor additions to former private buildings, where such outlays amount to up to 20% of the building’s value.

Former owners shall be entitled to restitution of their former buildings once they have repaid more than 20% of the value of outlays, where such outlays amount to between 20% and 50% of the building’s value. The value of the outlays shall be calculated on the basis of construction prices at the time of the building’s restitution. A building shall remain in co-ownership where the value of such outlays is more than 50% of the building’s value. .... The courts shall have authority to resolve disputes between parties.”

“Where a building site or agricultural land that has been reclassified as a building site is occupied by a permanent construction, the former owners shall be compensated, within the limit fixed for expropriation, by one of the following methods:

(a) by means of State bonds, equivalent to the compensation owed, and with first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans;

(b) by means of an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations;

(c) by means of an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations.

Any outstanding amount after the application of (b) and (c) above shall be compensated according to other methods established by this Act.

The Council of Ministers shall have the authority to define more detailed rules for determining the methods and deadlines for such compensation.”

The new Property Act enacted in 2004 provides for two forms of restitution of property, namely the return, under certain circumstances, of the original property and compensation in the event of the impossibility for the authorities to return the original property. The Act provides for five forms of compensation: (a) a property of the same kind; (b) a property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, (e) a sum of money (section 11).

The Act instituted the State Committee for Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role is to decide on the lawfulness of district committees’ decisions. At district level decisions on restitution and compensation claims are to be taken by District Committees for Property Restitution and Compensation (section 15).

In accordance with the Act, the persons entitled to claim restitution or compensation have to lodge an application for such purpose with the District Committee by 31 December 2007 (section 19). The Act grants the committee discretion to decide which one of the forms of compensation should be granted. The entitled persons have to express in writing their preferences regarding the form of compensation to be awarded. The District Committee’s decision may be appealed against to the State Committee (section 11).

In order to comply with the committees’ decisions awarding payment of pecuniary compensation, section 23 of the above-mentioned Act provides for the establishment of a ten-year Property Compensation Fund, whose aim is to provide financial support for such awards.

The above-mentioned Act was scrutinised by both the Constitutional Court and the Supreme Court.

On 24 March 2005 the Supreme Court, Joint Colleges, concluded that the Property Act of 2004 had no retroactive effect and that its provisions could therefore not have any impact on property rights recognised by administrative or court decisions given before its entry into force.

In November 2005 the Government (as newly elected on 3 July 2005) introduced in Parliament a new bill on the Property Restitution and Compensation Act, which proposes several amendments to the Property Act of 2004. The bill, which is currently pending before Parliament, will be discussed in the coming months.


Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicant was born in 1947 and lives in the Moscow Region.

On 17 July 2002 the applicant privately sent a complaint to the deputy Governor of the Moscow Region. He reported on usurpation of a plot of communal land, adjacent to a public street in Iksha, by the private person Ms V. The applicant alleged that Ms A., the head of the Iksha town council, not only had failed to stand up for the rights of other Iksha residents but actively contributed to making the usurpation possible. In particular, Ms A. had allegedly brought about premature retirement of a land surveyor who had objected to the usurpation; she had interfered with the activities of court bailiffs who had come to reclaim the usurped land; she had assisted V. in obtaining title to the land by adverse possession; and she had ostensibly made an exemption for V. from regulations prohibiting planting of vegetables in the protected areas. The letter concluded as follows:

“Such outrageous conduct of the appointed (not elected!) head of the town council vis-à-vis the town residents, – in full view of everyone – discredits the power that appointed A. and sets an example of breaking the law with impunity provided that you can 'make a deal' with the council head.

I ask you to state your opinion on A.'s anti-social behaviour and assist [us] in returning the land plot into communal use, notwithstanding her opposition...”

On 27 September 2002 Ms A. lodged a civil action against the applicant for refutation of information damaging to her honour and dignity and compensation for non-pecuniary damage. She maintained that the applicant's letter had contained untrue facts and insulting value-judgments, which could have damaged her reputation in the eyes of her hierarchical superiors, thereby causing her non-pecuniary damage.

On 27 January 2003 the Dmitrov Town Court of the Moscow Region granted Ms A.'s defamation action, finding that the applicant had failed to prove the truthfulness of his allegations contained in the letter of 17 July 2002. Assessing the allegedly insulting value-judgments in the concluding paragraphs of the letter, the court held as follows:

“In addition to failing to substantiate the said allegations with any proof, [the applicant] used expressions which, in their form and contents, are not appropriate in respect of an official, which the plaintiff is...

Also, the court considers that the judgments used by the [applicant] in his letter – such as 'A. knows that by law protected areas may not be occupied, but ostensibly makes an exemption for V.', 'such outrageous conduct... discredits the power that appointed A. and sets an example of breaking the law with impunity provided that you can 'make a deal' with the council head', 'A.'s anti-social behaviour' – are not only untrue because the [applicant] failed to prove that these facts had occurred, but also insulting for the Town Council Head; this information, phrased as insults, damages dignity and honour of the plaintiff, and it was sent to a deputy Governor of the Moscow Region, which might have led to belittlement of the plaintiff's authority in the eyes of regional managers...”

The court bound the applicant to make a rectification by way of a letter to the deputy Governor of the Moscow Region and to pay 300 Russian roubles (EUR 10) to Ms A. for non-pecuniary damage.

The applicant lodged a statement of appeal, maintaining that his letter had stated his subjective view on the existing problem.

On 4 March 2003 the Moscow Regional Court partly upheld, on the applicant's appeal, the judgment of 27 January 2003. It did not analyse the truthfulness of the factual allegations and grounded its judgment on the three expressions quoted above in the last paragraph of the judgment of 27 January 2003. The appeal court struck down the obligation to send a rectification, but upheld the award in respect of non-pecuniary damage.

Article 29 guarantees freedom of ideas and expression.

Article 33 provides that Russian citizens shall have the right to petition in person, as well as to submit individual and collective appeals to, State authorities and local self-government bodies.

Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.

Resolution no. 11 of the Plenary Supreme Court of 18 August 1992 “on certain issues that have arisen in the course of judicial examination of claims for the protection of honour and dignity of individuals, and professional reputation of individuals and legal entities” (as amended on 25 April 1995, in force at the material time) established that the notion “dissemination of information” employed in Article 152 of the Civil Code was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person. It specified, however, that “communication of such information to the person whom it concerned could not be treated as dissemination”.