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AFFAIRE M.E. c. FRANCE

Requête no 50094/10 – 6 juin 2013 (On non-refoulement and accelerated asylum procedures):http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120072

1. Non-refoulement

50.  Sur la situation générale en Egypte, les rapports consultés dénoncent les nombreuses violences et persécutions subies par les chrétiens coptes d’Egypte au cours des années 2010 et 2011, mais également la réticence des autorités égyptiennes à poursuivre les agresseurs. Les parties ne fournissent aucun élément permettant de penser que la situation des coptes s’est améliorée au cours de l’année 2012. Malgré cela, la Cour, en l’état des informations dont elle dispose, est d’avis que l’on ne peut conclure à un risque généralisé, pour tous les coptes, suffisant à entraîner une violation de l’article 3 en cas de retour vers l’Egypte.

51.  Sur les risques personnels encourus en cas de renvoi dans son pays d’origine, le requérant rappelle les persécutions déjà subies en raison de son appartenance à la minorité copte et fait valoir qu’il risque d’en subir à nouveau notamment en raison de sa condamnation par contumace pour des faits de prosélytisme. La Cour note que le requérant produit de nombreux documents dont l’authenticité n’est pas contestée par le Gouvernement et notamment deux convocations, l’une devant un tribunal datant de 2007 et l’autre du 16 juin 2010 émanant de la police d’Assiout, démontrant qu’il est encore aujourd’hui activement recherché. Certes, le requérant encourt trois ans de prison ferme, peine a priori à elle seule insuffisante au regard du seuil de gravité exigé s’agissant de l’article 3 de la Convention. Tout porte à croire cependant que le requérant pourrait, en tant que prosélyte reconnu et condamné, être une cible privilégiée de persécutions et de violences de la part d’intégristes musulmans, qu’il soit libre ou incarcéré. Même si ces risques proviennent de personnes privées et non pas directement de l’Etat, l’absence de réaction de la part des autorités de police face aux plaintes déposées par les chrétiens coptes, dénoncées par les rapports internationaux, instaure un doute sérieux quant à la possibilité pour le requérant de recevoir une protection adéquate de la part des autorités égyptiennes.

52.  Ainsi, la Cour estime, au vu du profil du requérant et de la situation des chrétiens coptes en Egypte, qu’il existe, dans les circonstances particulières de l’espèce, un risque réel qu’il soit soumis à des traitements contraires à l’article 3 de la Convention de la part des autorités égyptiennes en cas de mise à exécution de la mesure de renvoi.

53.  Par conséquent, la décision de renvoyer le requérant vers l’Egypte emporterait violation de cette disposition si elle était mise à exécution.

2. Accelerated asylum procedure

66.  La Cour est consciente de la nécessité pour les Etats confrontés à un grand nombre de demandeurs d’asile de disposer des moyens nécessaires pour faire face à un tel contentieux. Elle ne remet pas en cause l’intérêt et la légitimité de l’existence d’une procédure prioritaire, en plus de la procédure normale de traitement des demandes d’asile, pour les demandes dont tout porte à croire qu’elles sont infondées ou abusives. Elle note d’ailleurs que la directive européenne 2005/85 du 1er décembre 2005 relative à des normes minimales concernant la procédure d’octroi et de retrait du statut de réfugié dans les Etats membres donne à ces derniers la possibilité d’appliquer une procédure accélérée notamment lorsque des éléments clairs et évidents permettent aux autorités de considérer que le demandeur ne pourra pas bénéficier d’une protection internationale, lorsque la demande paraît frauduleuse ou lorsque, sans motif valable, elle n’a pas été présentée dans les délais les plus brefs suivant la date d’entrée sur le territoire.

67.  La Cour rappelle qu’elle a déjà examiné la compatibilité de la procédure d’asile dite prioritaire appliquée aux demandeurs en rétention et le recours devant le tribunal administratif contre un arrêté préfectoral de reconduite à la frontière. Dans l’arrêt I.M. c. France précité, §§ 49-63 et §§ 64-74, la Cour a jugé, quant à l’effectivité du système de droit interne pris dans son ensemble, que si les recours exercés par le requérant étaient théoriquement disponibles, leur accessibilité en pratique avait été limitée par plusieurs facteurs, liés pour l’essentiel au classement automatique de sa demande en procédure prioritaire, à la brièveté des délais de recours à sa disposition et aux difficultés matérielles et procédurales d’apporter des preuves alors que le requérant se trouvait en détention ou en rétention (ibid., § 154). La Cour a conclu à la violation de l’article 13 combiné avec l’article 3 après avoir constaté qu’il s’agissait d’une première demande d’asile et que le requérant, gardé à vue puis détenu, n’avait pas eu la possibilité de se rendre en personne à la préfecture pour introduire une demande d’asile comme l’exige le droit français (ibid., §§ 141 et 143). Dans l’arrêt Sultani c. France (no 45223/05, §§ 64-65, CEDH 2007‑IV (extraits)), la Cour a, au contraire, estimé que le réexamen d’une demande d’asile selon le mode prioritaire ne privait pas l’étranger en rétention d’un examen circonstancié dès lors qu’une première demande avait fait l’objet d’un examen complet dans le cadre d’une procédure d’asile normale. Le simple fait qu’une demande d’asile soit traitée en procédure prioritaire et donc dans un délai restreint ne saurait en conséquence, à lui seul, permettre à la Cour de conclure à l’ineffectivité de l’examen mené.

68.  En l’espèce, la Cour observe que, comme dans l’arrêt I.M. précité, le requérant est un primo-demandeur d’asile et que, du fait du classement en procédure prioritaire, il a disposé de délais de recours réduits et, partant, très contraignants pour préparer, en rétention, une demande d’asile complète et documentée en langue française, soumise à des exigences identiques à celles prévues pour les demandes déposées hors rétention selon la procédure normale. La Cour relève cependant qu’à la différence de l’arrêt I.M., le requérant a particulièrement tardé à former sa demande, ce qui a d’ailleurs justifié le classement en procédure prioritaire. En effet, ce n’est qu’en août 2010, lors de son placement en centre de rétention, que le requérant, arrivé pourtant sur le territoire français en septembre 2007, a sollicité l’asile. La Cour n’est pas convaincue par la thèse du requérant selon laquelle ce retard serait dû à son ignorance de l’existence d’une procédure d’asile. Elle en déduit que le requérant a donc disposé de trois années pour présenter une demande d’asile, laquelle aurait bénéficié d’un examen complet dans le cadre de la procédure normale, ou, à tout le moins, pour se procurer les documents de nature à étayer une telle demande d’asile pour parer la mesure d’éloignement qui, en raison du caractère irrégulier de son séjour en France, risquait d’être prise à son encontre.

69.  La Cour souligne que lorsqu’il a fait l’objet d’un arrêté préfectoral de reconduite à la frontière, le requérant a pu former un recours suspensif devant le tribunal administratif et une demande d’asile, également suspensive, devant l’OFPRA. Ces recours sont certes enfermés dans des délais brefs de, respectivement, quarante-huit heures et cinq jours. Eu égard au caractère particulièrement tardif de la demande d’asile du requérant et, partant, à la possibilité qu’il avait de rassembler, au préalable, toute pièce utile pour documenter une telle demande, celui-ci ne peut cependant valablement soutenir que l’accessibilité des recours disponibles a été affectée par la brièveté des délais dans lesquels ceux-ci devaient être exercés et par les difficultés matérielles, notamment linguistiques, qu’il a rencontrées pour obtenir les preuves qui lui étaient nécessaires.

70.  Ces considérations amènent la Cour à conclure à l’absence de violation de l’article 13 combiné avec l’article 3.

Case of E.A. v Russia

Application no. 44187/04, 23 May 2013 (health treatment in detention and ill-treatment):

45.  The Court reiterates that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately ensured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI).

45.  The Court reiterates that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately ensured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI).

46.  Where complaints are made about a failure to provide necessary medical assistance in detention, it is not indispensable for such a failure to have led to a medical emergency or have otherwise caused severe or prolonged pain in order for the Court to find that a detainee was subjected to treatment incompatible with the guarantees of Article 3 (see Ashot Harutyunyan v. Armenia, no. 34334/04, § 114, 15 June 2010). Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds, save for in exceptional cases (see Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.), no. 48799/99, 5 April 2001), or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. However, a lack of appropriate medical treatment may raise an issue under Article 3 even if the applicant’s state of health did not require his immediate release.

47.  The national authorities must ensure that diagnosis and care in detention facilities, including prison hospitals, are prompt and accurate, and that, where necessitated by the nature of a medical condition, supervision is regular and systematic, and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Dirdizov v. Russia, no. 41461/10, § 95, 27 November 2012, and Sakhvadze v. Russia, no. 15492/09, § 83, 10 January 2012).

48.  On the whole, while taking into consideration “the practical demands of imprisonment”, the Court reserves a fair degree of flexibility in deciding, on a case-by-case basis, whether any deficiencies in medical care were “compatible with the human dignity” of a detainee (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).

49.  The Court reiterates that an unsubstantiated allegation of no, delayed, or otherwise unsatisfactory medical care is normally not sufficient to disclose an issue under Article 3 of the Convention. A credible complaint should normally include, among other things, sufficient reference to the medical condition in question, medical prescriptions that were sought, made or refused, and some evidence – for instance, expert reports – capable of disclosing serious failings in the applicant’s medical care (see Valeriy Samoylov v. Russia, no. 57541/09, § 80, 24 January 2012).

50.  The Court also reiterates that its task is to determine whether the circumstances of a given case disclose a violation of the Convention in respect of an applicant, rather than to assess in abstracto the national legislation of the respondent State, its regulatory schemes or the complaints procedure used by an applicant. Thus, mere reference to the domestic compliance with such legislation or schemes, for instance as regards licensing of medical institutions or qualifications of medical professionals, does not suffice to oppose an alleged violation of Article 3 of the Convention. It is fundamental that the national authorities dealing with such an allegation apply standards which are in conformity with the principles embodied in Article 3 (ibid., § 81).

51.  Concerning its own scrutiny, the Court reiterates that, in view of the subsidiary nature of its role, it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a case. The Court has held in various contexts that where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179 and 180, 24 March 2011). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (ibid.).

52.  In its assessment of issues under Article 3 of the Convention, the Court gives thorough scrutiny to the question of the authorities’ compliance with the prescriptions issued by medical professionals, in the light of the specific allegations made by an applicant (see Vladimir Vasilyev v. Russia, no. 28370/05, § 59, 10 January 2012).

65.  The Court has been unable to assess on the basis of the available information whether the applicant’s HIV status in 2003 to 2006 required (HA)ART or whether some other form of medical care was appropriate and afforded to him. The fact remains, however, that for several years there was no proper immunological assessment to determine the appropriate time to initiate antiretroviral therapy. It was not until 2007, that is, nearly four years after the authorities had learned of the applicant’s illness, that he was enabled to commence the therapy.

66.  These considerations are sufficient for the Court to conclude that in the circumstances of the present case the authorities failed to comply with their responsibility to ensure the provision of adequate medical care to the applicant (see A.B. v. Russia, §§ 132-135, and Koryak, § 102, both cited above).

67.  In view of the gravity of the applicant’s medical condition and the respondent Government’s omission to substantiate their position regarding the absence of any need for medical care in relation to the applicant’s HIV between 2003 and 2006, the case discloses a failure on the part of the respondent State leading to a situation in which the applicant can be said to have been subject to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The Court thus considers that the authorities’ failure amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

68.  There has therefore been a violation of this provision.

Le Concile d’Orléans (511 a.d.) et le droit d’asile

Extrait du livre “Clovis” de Godefroid Kurth, 1893 (pp. 454-455):

“En ce qui concerne le droit d’asile, l’assemblée confirma les dispositions inscrites dans le code Théodosien, et reproduites dans la loi des Burgondes et dans celle des Visigoths. Elle proclama le caractère inviolable non seulement du sanctuaire lui-même, mais encore du vestibule ou atrium qui le précédait, et des habitations ecclésiastiques qui entouraient le vestibule. La raison de cette extension de l’immunité est manifeste : pour que le droit d’asile de devînt pas illusoire, il fallait que le réfugié trouvât un logement dans le pourpris de l’édifice sacré ; sinon, il aurait pu être tenté de profaner le lieu saint lui-même en y dressant sa table et son lit. Le concile défendit à l’autorité publique de pénétrer dans les cloîtres pour y chercher le coupable, que ce fût un homicide, un adultère, un voleur, un ravisseur ou un esclave fugitif ; il défendit aussi au clergé de le livrer, avant que celui qui le poursuivait eût prêté le serment solennel, sur l’Evangile, qu’il ne lui infligerait pas de châtiment corporel et qu’il se contenterait, soit de reprendre son esclave, soit de recevoir une compensation. Si l’homme qui avait prêté ce serment le violait, il devait être excommunié et séparé de la société de tous les catholiques. Si, d’autre part, le coupable ne voulait pas convenir d’une composition et s’enfuyait de l’enceinte, on ne pouvait pas en rendre responsable le clergé. Si c’était un esclave, et qu’il refusât de sortir après que son maître avait prêté le serment requis, alors celui-ci avait le droit d’aller s’emparer de sa personne.

Telle fut la forme que le concile d’Orléans donna au droit d’asile dans le royaume franc. On conviendra qu’à une époque d’anarchie il constituait une des plus précieuses garanties d’ordre public, et un des meilleurs moyens d’adoucir le moeurs. Il ne supprimait pas le châtiment des coupables, comme on l’a dit souvent ; il en atténuait la rigueur cruelle, il mettait un obstacle à l’exercice illimité de la vengeance privée, et il préparait de loin la substitution du règne du droit aux violences de l’arbitraire.”

ECHR: CASE OF SAVRIDDIN DZHURAYEV v. RUSSIA

CASE OF SAVRIDDIN DZHURAYEV v. RUSSIA, Application no. 71386/10, 25 April 2013

Standard of proof

129.  In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002). However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, with further references, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII; Iskandarov v. Russia, cited above, § 107; and El Masri, cited above, § 151).

130.  The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principleaffirmanti incumbit probatio (he who alleges something must prove that allegation). In certain circumstances, where the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide asatisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; D.H. and Others v. the Czech Republic[GC], no. 57325/00, § 179, ECHR 2007‑XII; and Iskandarov v. Russia, cited above, § 108). Where a party fails to adduce evidence or provide information requested by the Court or to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate (Rule 44C § 1 of the Rules of Court).

Non-refoulement

Assessment of situations

155.  The Court reiterates that, where domestic proceedings have taken place, as in the present case, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, 24 March 2011). This should not lead, however, to abdication of the Court’s responsibility and a renunciation of all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance (see Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 69, Series A no. 246‑A, andScordino v. Italy (no. 1) [GC], no. 36813/97, § 192, ECHR 2006‑V). In accordance with Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention.

156.  With reference to extradition or deportation, this means that in cases where an applicant provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government, the Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources, such as, for instance, other Contracting or non‑Contracting States, agencies of the United Nations and reputable non‑governmental organisations (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007, and Ismoilov and Others v. Russia, no. 2947/06, § 120, 24 April 2008). Accordingly, the Court will first assess whether the applicant’s complaint received an adequate reply at the national level.

165.  Having regard to the above, the Court finds that the domestic authorities did not carry out an independent and rigorous scrutiny of the applicant’s claim that there existed substantial grounds for fearing a real risk of treatment contrary to Article 3 in his home country (see De Souza Ribeiro v. France [GC], no. 22689/07, § 82, 13 December 2012). Although the FMS’s subsequent decision granting the applicant temporary asylum (see paragraphs 31 and 96-97 above) may have remedied to a certain extent the consequences of the impugned decisions upholding the applicant’s extradition, the Court does not find it appropriate to speculate on that matter, given that the later developments erased any benefit of the temporary protective measure taken by the FMS in the applicant’s favour. The Government have not expressed a different view on the latter point (see paragraphs 142-143 and 146 above).

166.  The Court has therefore to conduct its own scrutiny of whether, on the facts submitted to it, the applicant’s return to Tajikistan subjected him to treatment in breach of Article 3 of the Convention.

Examination of the applicant’s situation

170.  Turning to the applicant’s personal situation, the Government argued that he did not run any risk of ill-treatment, as he had been charged with common criminal offences and was not being prosecuted on any political ground. The Court notes, however, that one of the main charges against the applicant directly related to his involvement in a “criminal conspiracy”, and later, in the IMU, which the Tajik prosecutor’s office categorised as a “criminal armed group”. It was explicitly acknowledged by the Russian authorities that the IMU advocated “radical Islam” and that the Tajik authorities were attempting to limit its influence (see paragraph 27 above). The Court cannot, therefore, readily adopt the Government’s view that the applicant’s alleged involvement in the IMU was a criminal charge with no links to his religious or political activities.

171.  The Court also notes in that connection that the applicant fled Tajikistan shortly after the alleged ill-treatment and death in custody of his religious tutor, Mr Marufov (see paragraph 12 above). The latter events were also reported by a reputable international NGO (see paragraph 102above) and have never been refuted before the Court. Those circumstances tend to support the applicant’s fear that the criminal proceedings brought against him were related to his religious views and activities. That the applicant was considered eligible for international protection under the UNHCR mandate and eventually granted temporary asylum in Russia likewise corroborates the reality of the risk to which he was exposed in his home country (see paragraphs 30-31 above).

172.  It is common ground, furthermore, that the IMU’s activities were banned by law in Tajikistan and that the Tajik authorities regarded it as a terrorist organisation. Consequently, the applicant’s alleged involvement in the IMU and the corresponding criminal charges against him inevitably raised, in the Court’s view, an important issue of national security. From that perspective, the applicant’s situation was similar to that examined by the Court in the case of Gaforov (cited above, §§ 132-33). The Court does not share the position of the City Court, which considered the aforementioned judgment as an impertinent reference for assessment of the applicant’s personal situation in the present case. In the Court’s view, the applicant’s prosecution for his involvement in the IMU, taken in the context of harassment of non-traditional religious groups by the Tajik authorities, heightened the risk of his being subjected to ill-treatment in detention with a view to extracting confessions relating to his religious activities.

173.  Considering the above, the Court takes the view that the applicant’s personal circumstances, coupled with the general human-rights situation in the requesting country, were sufficient to infer that he was facing a real risk of ill‑treatment in Tajikistan.

Positive obligation to protect the applicant against the real and immediate risk of forcible transfer to Tajikistan

178.  The Court has found it established that on the evening of 31 October 2011 the applicant was kidnapped in Moscow by unidentified persons who detained him for one or two days in an unknown location before transferring him by aircraft to Tajikistan, where he was exposed to a real risk of treatment contrary to Article 3 (see paragraphs 138 and 176 above).

179.  The Court reiterates that the obligation on Contracting Parties, under Article 1 of the Convention, to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill‑treatment administered by private individuals (see El Masri, cited above, § 198, and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000‑III). Those measures should provide effective protection, in particular, of vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001‑V, and, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, pp. 3159-60, § 115).

180.  In the Court’s view, the above principles logically apply to the situation of an individual’s exposure to a real and imminent risk of torture and ill-treatment through his transfer by any person to another State. Where the authorities of a State party are informed of such a real and immediate risk, they have an obligation under the Convention to take, within the scope of their powers, such preventive operational measures that, judged reasonably, might be expected to avoid that risk (see, mutatis mutandis, Osman, cited above, § 116).

181.  Turning to the circumstances of the present case, the Court notes at the outset that the applicant’s representative immediately informed the head of the Moscow City Police Department, the Director of the FMS, the Prosecutor General and the Representative of the Russian Federation at the Court of the applicant’s abduction on 31 October 2011 and asked them to protect him from the ensuing immediate risk of his forcible transfer to Tajikistan (see paragraphs 46-48 above). The Court is satisfied that the applicant’s representative addressed the relevant State authorities in a timely manner, provided sufficient evidence of the applicant’s vulnerable situation and advanced weighty reasons warranting extraordinary measures of protection against the real and immediate risk he was facing.

182.  Importantly, the claim by the applicant’s representative was immediately upheld by the Russian Commissioner for Human Rights, who also sent an official request to the head of the Moscow City Police Department urgently to take all possible measures to prevent the applicant’s transfer from Moscow to Tajikistan, in particular, through a Moscow airport (see paragraph 49 above).

183.  The Court is therefore convinced that the competent authorities and, in particular, the Moscow City Police Department, were well aware ‑ or ought to have been aware – of the real and immediate risk of the applicant being transferred to Tajikistan by his kidnappers through one of theMoscow airports. Indeed, the circumstances in which the applicant was abducted and the background to his abduction should have left no doubt about the existence of that risk and should have prompted the competent authorities to take preventive operational measures to protect him against unlawful acts by other individuals, whoever they might have been (see, mutatis mutandis, Koku v. Turkey, no. 27305/95, § 132, 31 May 2005, and Osmanoğlu v. Turkey, no. 48804/99, § 76, 24 January 2008). The Court is equally convinced that among the authorities contacted by the applicant’s representatives, the police, more than anyone else, were under a statutory duty to ensure security and law enforcement in the city of Moscow and its airports, and were vested with the necessary powers to ensure that urgent and effective measures were put in place to protect the applicant.

184.  The Government failed nonetheless to inform the Court of any timely preventive measure taken by the police or any other authority to avert that risk. Their response was limited to a general statement that the applicant’s freedom of movement had not been restricted at the relevant time and that the authorities had been under no obligation to conduct any surveillance in his respect.

185.  The Government’s failure to adduce any information in that connection leads the Court to accept the applicant’s view that no such measure was taken by any authority. The Court is mindful of the inevitable difficulties the police may have faced in dealing with a case such as the present one, the objective obstacles inherent in that task and the limited time available. Those difficulties cannot, however, absolve the relevant authorities of their obligation, under Article 3 of the Convention, to take, within the scope of their powers, such preventive operational measures as might have been reasonably expected of them for the applicant’s protection against his forcible transfer to Tajikistan, in particular, through a Moscow airport. The authorities’ failure to take any such action in the present case amounts to a violation of the State’s positive obligations under Article 3 of the Convention.

Investigations into abduction

187.  The Court reiterates that Article 3, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation into any arguable claim of torture or ill-treatment by State agents. Such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998‑VIII, and El Masri, cited above, § 182).

188.  The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions (see Assenov and Others, cited above, § 103; Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts); and El Masri, cited above, § 183). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104, ECHR 1999‑IV; Gül v. Turkey, no. 22676/93, § 89, 14 December 2000; and El Masri, cited above, § 183).

189.  The investigation should be independent from the executive in both institutional and practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998‑IV; Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III; and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004) and allow the victim to participate effectively in the investigation in one form or another (see, mutatis mutandis, Oğur, cited above, § 92, andEl Masri, cited above, §§ 184-85).

190.  The Court considers that these well-established requirements of the Convention fully apply to the investigation that the authorities should have conducted into the applicant’s abduction and his ensuing exposure to ill‑treatment and torture in Tajikistan. Indeed, as highlighted above, the relevant information and complaints were brought to the authorities’ attention immediately after the applicant’s abduction on 31 October 2011 and resulted in pre-investigation inquiries, which have lasted for more than a year.

193.  Against this background, the results produced in response by the domestic investigation, as outlined in paragraphs 55-65 above, are incomprehensible. First, the investigators strictly limited their action to “pre-investigation inquiries” under Article 144 of the Code of Criminal Procedure, while persistently refusing to open criminal proceedings, which would have constituted the best, if not the only tool to meet the Convention requirements of effective investigation as set out in paragraphs 187-190 above. Given notably the limited procedural framework provided for by Article 144 and the failure to ensure the victim’s or his representatives’ effective participation in the investigation, the Court has serious doubts that a pre-investigation inquiry was capable of complying with the above‑mentioned requirements in a situation where an individual had lodged an arguable complaint of torture or ill-treatment, as in the present case (see, mutatis mutandis, Kleyn and Aleksandrovich v. Russia, no. 40657/04, §§ 56‑58, 3 May 2012).

194.  Secondly, the procedural strategy used by the investigative authorities in the applicant’s case gives rise to further concerns. In fact, the decisions by which the investigators concluded their inquiries and refused to open a criminal investigation were immediately quashed by their superiors on at least four occasions, only to be repeated a few weeks later in either identical or very similar terms (see paragraphs 55-63 above). For example, the second decision by the senior investigator, P.K., of 20 April 2012 refusing to initiate a criminal investigation repeated word for word his first decision of 21 March 2012. Both decisions were quashed by two equally identical decisions taken by the head of the Nikulinskiy Investigation Division or his deputy on 23 April and 21 March 2012 respectively. They were followed by two further consecutive decisions by the investigators, also refusing to open a criminal investigation without adding any new relevant element of substance. The Court is bound to conclude that the process of repeated quashing and renewal of identical decisions by the investigation division resulted in the proceedings being stalled in a manner that was incompatible with the Convention requirement of effective investigation. Not only was valuable time lost, but also the vicious circle within the investigation division deprived the applicant of any reasonable opportunity to challenge the investigators’ decisions in court under Article 125 of the Code of Criminal Procedure. In those circumstances, the Court sees no value for the applicant in obtaining such judicial review, as it would only prompt the investigators to repeat yet another cycle of their futile inquiries.

195.  Thirdly, the Court notes that the substance of the investigators’ decisions closely reflects the flawed investigative process highlighted above. Their decisions represent a mere compilation of general statements of fact, meaningless procedural requests and references to unreliable assumptions. For example, as late as 9 June 2012, the deputy head of the Nikulinskiy Investigation Division requested a second verification of whether the applicant had crossed the Tajikistan border and been remanded in custody in that country (see paragraph 62 above). Yet, the authorities must have been aware of the official letter of 28 March 2012 from the Prosecutor General of Tajikistan informing his Russian counterpart that the applicant had been detained in Tajikistan at the relevant time (see paragraph 44 above). Notwithstanding that obvious fact, the decision taken by the investigator on 9 July 2012 incomprehensibly concluded that it had been impossible to confirm or refute the information about the crossing of the State border by the applicant (see paragraph 63 above). Likewise, from March to July 2012, the investigators persistently relied on the hypothesis that the applicant might have staged his abduction to escape criminal liability in Tajikistan. The Court has already found that that hypothesis was devoid of any sense, in view of the obvious causal link between the applicant’s abduction in Moscow and his arrest in his home country (see paragraph 136 above). At the same time, the investigators failed to take some elementary and straightforward investigative steps, such as finding out which airlines had operated flights from Moscow to Khujand between 1 and 3 November 2011 and questioning the security and administrative staff of Domodedovo airport, where the applicant had reportedly boarded an aircraft. Instead, the investigator only referred to “verification” carried out by the FSB of the possible unlawful crossing of the Russian State border by the applicant and readily reproduced the general statement that Russian law did not provide for “personified accounting” of border crossings.

196.  In the Court’s view, the numerous flaws in the investigation identified above, by both their nature and their extent, are manifestly inconsistent with the respondent State’s obligations under Article 3 of the Convention.

Direct responsibility of the State in the abduction

197.  On the basis of the facts already established to the required standard of proof, the Court must now examine whether the respondent State is also responsible under the Convention on account of the alleged involvement of State agents in the applicant’s transfer to Tajikistan.

198.  Although the applicant was unable to provide any witness statements to that effect, he argued that his transfer to Tajikistan through Moscow’s Domodedovo airport could not have happened without the knowledge and either passive or active involvement of the Russian authorities.

199.  The Court asked the Government to explain in response how and by whom the applicant had been transferred from Moscow to Tajikistan against his will without complying with border, customs and other formalities in the Russian Federation. However, they did not provide any explanation (see paragraphs 42-45 and 124 above). As a result, the Court received no hard evidence either in favour or against the applicant’s allegation.

200.  The Court finds it appropriate in this connection to emphasise once again its natural limits as an international court to conduct effective fact‑finding, which should, as a matter of principle and effective practice, be the domain of domestic authorities (see, in addition to numerous authorities cited above, Demopoulos and Others v. Turkey (dec.), nos. 46113/99 et al., § 69, ECHR 2010). The Court’s proceedings on such controversial issues as those raised by the present case are all the more contingent on respondent States’ cooperation, in line with their undertaking under Article 38 of the Convention, to furnish all necessary facilities for the establishment of the facts. The Convention organs have repeatedly emphasised that obligation as being of fundamental importance for the proper and effective functioning of the Convention system (see, among others,Tanrıkulu v. Turkey [GC], cited above, § 70, and Committee of Ministers’ Resolutions ResDH(2001)66 and ResDH(2006)45). In the Court’s view, the only genuine way for Russia to honour its undertaking in the present case was to ensure that an exhaustive investigation of the incident was carried out and to inform the Court about its results. However, the Russian authorities manifestly failed to do so (see paragraphs 193-196 above), thus prompting the Court to examine the highly controversial issues at stake in the place of the domestic authorities. Such a failure by the State Party to adduce crucial information and evidence compels the Court to draw strong inferences in favour of the applicant’s position (Rule 44C § 1 of the Rules of Court). In this respect, the Court also attaches great weight to the way in which the official inquiries were conducted, as they did not appear to want to uncover the truth regarding the circumstances of the case (see El Masri, cited above, §§ 191-93).

201.  The Court is also mindful of the objective difficulties for the applicant to provide evidence in support of his allegation, since the events at issue lay within the exclusive knowledge of the authorities. His allegation was largely supported by the unrebutted presumption, which was upheld by the Court in the Iskandarov judgment (cited above, §§ 113-15), that his forcible transfer to Tajikistan could not have happened without the knowledge and either passive or active involvement of the Russian authorities. More recently, the Court came to the same conclusion in yet another similar case (Abdulkhakov v. Russia, no. 14743/11, §§ 125‑27, 2 October 2012). Both cases disclosed very similar circumstances in which the applicants were forcibly transferred to Tajikistan by aircraft from Moscow or the surrounding region.

202.  The Court does not discern any reason to reach a different conclusion in the present case. Indeed, it cannot be disputed that any airport serving international flights is subject to heightened security measures, remaining under the permanent control of the respondent State’s authorities and notably, the State border service. This fact alone tends to exclude, under ordinary circumstances, the possibility that a physical person could be forcibly taken directly to the airfield and put onboard a plane for a foreign country without having to account to any State agents. Any such action requires, therefore, the authorisation, or at least acquiescence, of the State agents in charge of a given airport and, in particular, those who effectively control the checkpoints of access to the airfield.

203.  As in the two previous similar cases mentioned above, the Government have shown nothing to rebut that presumption in the present case. Nor have they provided any plausible explanation of how the applicant could have been taken onboard an aircraft and flown from Moscow to Khujand without accounting to any Russian State official. Moreover, the authorities manifestly failed to elucidate the circumstances of the incident through an effective investigation at the domestic level. Those elements are sufficient for the Court to conclude that the respondent State is to be held responsible under the Convention for the applicant’s forcible transfer to Tajikistan on account of State agents’ involvement in that operation.

204.  The Court’s finding is all the more disturbing given that the impugned actions by State agents were characterised by manifest arbitrariness and abuse of power with the aim of circumventing the FMS’s lawful decision granting the applicant temporary asylum in Russia (see section 12(4) of the Refugee Act) and the steps officially taken by the Government to prevent the applicant’s extradition in accordance with the interim measures decided by the Court (see paragraph 5 above and paragraph 209 below). While the operational procedures here at issue differed in many respects from those of so-called “extraordinary renditions” examined in some recent cases, the Court’s findings convincingly show that the operation involving State agents in the present case was likewise conducted “outside the normal legal system” and, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see, mutatis mutandis, Babar Ahmad and Others v. the United Kingdom(dec.) nos. 24027/0711949/08 and 36742/08, §§ 113-14, 6 July 2010, and El Masri, cited above, § 239).

Respect of interim measures

211.  The Court reiterates that, by virtue of Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, which has been consistently reaffirmed as a cornerstone of the Convention system. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure entails a violation of that right (seeMamatkulov and Askarov, cited above, §§ 102 and 125, and Abdulkhakov, cited above, § 222).

212.  The Court cannot emphasise enough the special importance attached to interim measures in the Convention system. Their purpose is not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Shamayev and Others v. Georgia and Russia, cited above, § 473; Aoulmi v. France, no. 50278/99, § 108, ECHR 2006‑I (extracts); and Ben Khemais v. Italy, no. 246/07, § 82, 24 February 2009).

213.  The crucial significance of interim measures is further highlighted by the fact that the Court issues them, as a matter of principle, in truly exceptional cases on the basis of a rigorous examination of all the relevant circumstances. In most of those, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm in breach of the core provisions of the Convention. This vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands the utmost importance to be attached to the question of the States Parties’ compliance with the Court’s indications in that respect (see, inter alia, the firm position on that point expressed by the States Parties in the Izmir Declaration cited in paragraph 119 above and by the Committee of Ministers in its Interim Resolution CM/ResDH(2010)83 in the case of Ben Khemais cited in paragraph 117 above). Any laxity on this question would unacceptably weaken the protection of the Convention core rights and would not be compatible with its values and spirit (see Soering, cited above, pp. 34‑35, § 88); it would also be inconsistent with the fundamental importance of the right to individual petition and, more generally, undermine the authority and effectiveness of the Convention as a constitutional instrument of European public order (see Mamatkulov and Askarov,cited above, §§ 100 and 125, and, mutatis mutandis, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310).

214.  Considering the present case in the light of the above principles, the Court notes that it disclosed such exceptional circumstances warranting indication of interim measures to the respondent Government. On 7 December 2010 the latter was requested, in the interests of the parties and the proper conduct of the proceedings before the Court, not to extradite the applicant to Tajikistan until further notice. On 16 December 2010 the Government informed the Court that the authorities had taken relevant steps to guarantee that the applicant would not be extradited to Tajikistan until further notice (see paragraphs 5 and 209 above). Notwithstanding the steps taken, in November 2011, the applicant was forcibly transferred by aircraft from Moscow to Khujand by way of a special operation in which State agents were found to be involved (see paragraphs 202-203 above).

215.  The Government did not accept that those circumstances disclosed a breach of the interim measure, submitting that the applicant’s transfer to Tajikistan had not taken place through the extradition procedure, which had been immediately stayed following the Court’s decision of 7 December 2010. The Court is not convinced by the Government’s argument. While the measures taken to stay extradition may be indicative of the Government’s initial willingness to comply with the interim measures, they cannot, in the Court’s view, relieve the State of its responsibility for subsequent events in the applicant’s case. Nor could the Government legitimately pretend, as their argument may suggest, that the applicant’s forcible return to Tajikistanwas not prevented by the interim measures which were formulated by the Court in the present case.

216.  The Court concedes that the interim measure in the present case, as requested by the applicant and formulated in the Court’s decision of 7 December 2010, aimed at preventing his extradition, which was the most imminent legal way by which the applicant was about to be removed from Russia to Tajikistan at the relevant time. Whilst the formulation of the interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi v. Moldova [GC], no. 39806/05, § 91, 10 March 2009) and, indeed, to its very purpose. The sole purpose of the interim measure, as indicated by the Court in the present case – and the Government did not pretend to be unaware of it – was to prevent the applicant’s exposure to a real risk of ill-treatment in the hands of the Tajik authorities. There could have remained no doubt about either the purpose or the rationale of that interim measure after the case had been communicated to the Government and given priority by the Court, which took place on 30 January 2011. The Government’s understanding of the spirit and purpose of the interim measure is also demonstrated by the instructions that they sent to various domestic authorities to suspend “any actions to expel, extradite or otherwise forcibly remove the applicant to Tajikistan” (see paragraph 209 above). That the authorities’ strictly complied with the interim measure for almost eleven months until the unexpected events of 31 October 2011 also shows that its purpose and legal consequences did not raise any doubts.

217.  In view of the vital role played by interim measures in the Convention system, they must be strictly complied with by the State concerned. The Court cannot conceive, therefore, of allowing the authorities to circumvent an interim measure such as the one indicated in the present case by using another domestic procedure for the applicant’s removal to the country of destination or, even more alarming, by allowing him to be arbitrarily removed to that country in a manifestly unlawful manner. Yet, the latter is exactly what the Court has found the respondent State to be responsible for in the present case (see paragraphs 202-203 above). In so doing, the State frustrated the purpose of the interim measure, which sought to maintain the status quo pending the Court’s examination of the application. As a result, the applicant was exposed to a real risk of ill‑treatment in Tajikistan and the Court was prevented from securing to him the practical and effective benefit of his right under Article 3 of the Convention.

218.  The Government did not demonstrate any objective impediment preventing compliance with the interim measure (see Paladi, cited above, § 92). More seriously, they failed to explain in any way the arbitrary behaviour by the State agents who allowed the applicant to be forcibly put on a flight from Moscow to Khujand, let alone to bring those responsible to account (see, by contrast, Muminov v. Russia, no. 42502/06, § 44, 11 December 2008). The authorities unacceptably persisted in refusing to investigate the matter even after the Court had addressed the relevant issues, specifically drawing the Government’s attention to the worrying and unprecedented situation created by the repetition of such unacceptable incidents (see paragraph 52 above).

219.  Consequently, the Court concludes that Russia disregarded the interim measure indicated by the Court in the present case under Rule 39 of the Rules of Court, in breach of its obligation under Article 34 of the Convention.

Right to judicial review of detention

24.  The Court reiterates that Article 5 § 4 of the Convention proclaims the right to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Baranowski, cited above, § 68). Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review in appeal proceedings. At the same time, the standard of “speediness” is less stringent when it comes to proceedings before a court of appeal (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007, and Abdulkhakov, cited above, § 198).

225.  Although the number of days taken by the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been given with the requisite speed (see Merie v. the Netherlands (dec.), no. 664/05, 20 September 2007). What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant and any factors causing delay for which the State cannot be held responsible (see Jablonski v. Poland, no. 33492/96, §§ 91-94, 21 December 2000, and G.B. v. Switzerland, no. 27426/95, §§ 34‑39, 30 November 2000). The question whether the right to a speedy decision has been respected must thus be determined in the light of the circumstances of each case (see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000-XII, and Abdulkhakov, cited above, § 199).

227.  The Court notes at the outset that the impugned delays of 29 and 54 days go beyond what it has already found to be in violation of the “speediness” requirement in certain similar cases against Russia (see for comparison Abidov v. Russia, no. 52805/10, §§ 60-63, 12 June 2012, andNiyazov v. Russia, no. 27843/11, §§ 155-64, 16 October 2012). The Government gave no explanation for such prolonged delays, while referring to the domestic law requirement that an appeal against an order concerning placement in custody must be considered within three days.

228.  The Court finds nothing to indicate that the applicant or his counsel contributed to the length of the appeal proceedings (contrast Lebedev, cited above, §§ 99-100, and Fedorenko v. Russia, no. 39602/05, § 81, 20 September 2011). It therefore follows that the entire length of the appeal proceedings is attributable to the domestic authorities. The Court observes that the District Court, the City Court and the Supreme Court were geographically very close, which should, in principle, contribute to swifter communication between them – in particular, as far as the transfer of the case materials or the scheduling of appeal hearings were concerned.

229.  It does not appear that any complex issues were involved in determining the lawfulness of the applicant’s detention by the appeal court (compare Lebedev, cited above, § 102). Nor was it argued that proper review of the applicant’s detention had required, for instance, the collection of additional observations and documents.

230.  Having regard to the above circumstances and to its case-law in the similar cases mentioned above, the Court considers that the delays in examining the applicant’s appeals against the detention orders were incompatible with the “speediness” requirement of Article 5 § 4.

231.  There has therefore been a violation of Article 5 § 4 of the Convention.

Indications of measures under Article 46 ECHR

243.  The Court notes that the present case disclosed several violations of one of the core rights protected by the Convention, a prohibition of torture and ill-treatment, which failed to be prevented by either the domestic legal remedies or the interim measures indicated by the Court. It further observes that similar violations by the respondent State were found in the recent past and that alarming complaints about the disappearance and forcible transfer of applicants to Tajikistan and Uzbekistan continue to be regularly lodged with the Court, notwithstanding the indication of interim measures and the Government’s assurances that those measures would be complied with.

244.  The Court is fully aware of difficulties that may arise in the process of executing the judgments concerned, not least by reason of the applicants’ being under the jurisdiction of a State that does not abide by the Convention. Issues may thus arise with regard to various aspects of the execution, such as the payment of just satisfaction awards and the adoption of other remedial measures in respect of the applicant. Nor does the Court underestimate the importance of general measures to prevent new similar violations and possible questions regarding their identification and adoption.

245.  The Court also points out in this context that over the last ten years it has been consistently encouraged by the Contracting States to seize the opportunity to provide indications helping the State concerned to identify underlying problems and the necessary measures to implement the judgment (see in particular the Committee of Ministers’ Resolution Res(2004)3 of 12 May 2004 and the Declarations adopted by the High Contracting Parties at the Interlaken, Izmir and Brighton conferences). The Court has thus been developing its case-law in that direction through a pilot-judgment procedure and in other forms, thus assisting the Contracting States and the Committee of Ministers for the sake of the proper and effective application of Article 46 of the Convention. In the Court’s view, the need for its input in this area remains acute in certain types of cases.

246.  Having regard to the above considerations and bearing in mind, in particular, the nature of the violations found by the present judgment, the recurrence of similar violations in other recent cases and the questions that may arise in the execution of the judgment, the Court finds it appropriate to examine the present case under Article 46 of the Convention.

247.  The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court found to be violated. Such measures must also be taken in respect of other persons in the applicant’s position, notably by solving the problems that have led to the Court’s findings. This obligation has been consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court’s judgments (see Burdov v. Russia (no. 2), no. 33509/04, § 125, ECHR 2009, with further references).

248.  As regards the individual measures to be taken in response to the judgment, their primary aim is to achieve restitutio in integrum, that is, to put an end to the breach of the Convention and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Piersack v. Belgium (Article 50), 26 October 1984, § 11, Series A no. 85, and Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330‑B). This obligation reflects the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting in restoring the situation that existed before the wrongful act was committed, provided that restitution is not “materially impossible” and “does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation” (Article 35 of the Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts). In other words, while restitution is the rule, there may be circumstances in which the State responsible is exempted ‑ fully or in part – from this obligation, provided that it can show that such circumstances obtain (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 86, ECHR 2009). The States should organise their legal systems and judicial procedures so that this result may be achieved (see ibid., § 97, and Recommendation (2000)2 of the Committee of Ministers).

252.  The Court is of the view, however, that the obligation to comply with the present judgment cannot be limited to payment of the monetary compensation awarded under Article 41, which is only designed to make good for such consequences of a violation that cannot otherwise be remedied (see Scozzari and Giunta, cited above, § 250). The obligation to take further individual measures in addition to the payment of just satisfaction has already been upheld by the Convention organs in similar cases where applicants’ rights were violated by their removal from the area protected by the Convention (see, for example, Hirsi Jamaa and Others, cited above, § 211; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 171, ECHR 2010 (extracts); and the Committee of Ministers’ Resolution CM/ResDH(2012)68 in the latter case and its decisions cited in paragraphs 121-124 above).

253.  The fact that the applicant remains outside the respondent State’s jurisdiction makes it, arguably, more difficult for the latter to reach him and to take remedial measures in his favour. However, these are not circumstances that in themselves exempt the respondent State from its legal obligation to take all measures within its competence in order to put an end to the violation found and make reparation for its consequences. While specific measures needed may vary depending on the specificity of each case, the obligation to abide by the judgment commands the respondent State, subject to supervision of the Committee of Ministers, to find out and use in good faith such legal, diplomatic and/or practical means as may be necessary to secure to the maximum possible extent the applicant’s right which the Court has found to have been violated.

254.  In the Court’s view, the findings of the present judgment require such action to be taken. The current state of development of international law and international relations does not make it impossible for the respondent State to take tangible remedial measures with a view to protecting the applicant against the existing risks to his life and health in a foreign jurisdiction (see, by way of example, Al-Saadoon and Mufdhi, cited above, § 171, and the Committee of Ministers’ Resolution CM/ResDH(2012)68 of 8 March 2012; Othman (Abu Qatada), cited above, §§ 23-24 and 194-205; see also the measures taken by Russia to secure the applicant’s return from Turkmenistan in Garabayev v. Russia, no. 38411/02, §§ 34-35, 7 June 2007). The need for such measures is all the greater in the present case, given that the applicant had been granted temporary asylum by the Russian authorities themselves. It remains a fortiori open to the respondent State to take those individual measures that lie totally within its own jurisdiction, such as carrying out an effective investigation into the incident at issue in order to remedy the procedural violations found by the Court (see, by way of example, the proceedings taken against a State official for failure to respect the interim measures indicated by the Court in Muminov v. Russia, cited above, § 44).

255.  The Court is therefore convinced that it is incumbent upon the Russian Federation to avail itself of the necessary tools and procedures in order to take such measures in respect of the applicant. Given the variety of means to achieve this aim and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicant’s evolving situation, the adoption of such measures that are feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court.

256.  Viewing the matter under Article 46 of the Convention, the Court finds it of particular importance to emphasise the need for general measures to prevent new violations similar to those found. In that respect, the Court notes with great concern that the events at issue in the present case cannot be considered as an isolated incident. The Court reiterates that since its judgment in the Iskandarov case (cited above) where it held the Russian Federation responsible for a violation of Article 3 on account of the applicant’s unexplained abduction and transfer to Tajikistan by unidentified persons, it has been confronted with repeated incidents of that kind. The Court has already found a violation of both Article 3 and Article 34 in theAbdulkhakov case, in which the applicant was abducted in Moscow and forced to board a plane for Tajikistan in identical circumstances (seeAbdulkhakov, cited above, §§ 124-27). More recently, albeit in different circumstances, it found the same violations on account of another applicant’s deportation from Saint-Petersburg to Uzbekistan (see Zokhidov v. Russia, no. 67286/10, §§ 128-42 and 201-11, 5 February 2013, not yet final). The Court has more complaints of that kind on its list and, even more worryingly, has received some of them on account of similar incidents that occurred after a cautionary message conveyed by the Court’s President to the Russian Government (paragraph 52 above), and even after the recent decisions taken by the Committee of Ministers on that issue (see paragraphs 121-124 above).

257.  The findings of the present judgment support the view that the repeated abductions of individuals and their ensuing transfer to the countries of destination by deliberate circumvention of due process – notably in breach of the interim measures indicated by the Court – amount to a flagrant disregard for the rule of law and suggest that certain State authorities have developed a practice in breach of their obligations under the Russian law and the Convention. Such a situation has the most serious implications for the Russian domestic legal order, the effectiveness of the Convention system and the authority of the Court.

258.  It transpires from the Committee of Ministers’ decisions that the situation was also “a source of great concern” for the Government and they were addressing the incidents. The Committee of Ministers’ relevant decisions were, for instance, circulated to the Prosecutor General’s Office, the Investigative Committee, the Ministry of the Interior, the Federal Migration Service and the Federal Bailiff Service. The Government also declared that they were “committed to presenting the results of the follow‑up” given to the incidents in Russia to both the Committee of Ministers and the Court in the context of the relevant cases (see paragraphs 122-123 above). The Court’s findings above amply demonstrate, however, that no satisfactory follow-up was given in the present case and, more generally, that the decisive general measures still remain to be taken by the State authorities concerned. Those should include further improving the domestic remedies in the extradition and expulsion cases, ensuring the lawfulness of any State action in this area, effective protection of potential victims in line with the interim measures issued by the Court and effective investigation into every breach of such measures or similar unlawful acts.

259.  The Court acknowledges the recent significant development of the domestic jurisprudence undertaken by the Supreme Court of the Russian Federation in its Ruling no. 11 of 14 June 2012 (see paragraph 76 above). This development is in line with the Court’s case-law and perfectly supports the idea of improving domestic remedies in extradition and expulsion cases, which has long been promoted by the Convention organs in respect of all Contracting States (see, among the most recent authorities, the Grand Chamber’s stand in De Souza Ribeiro v. France, cited above, § 82; see also the Committee of Ministers’ Recommendation Rec(2004)6 on the improvement of domestic remedies and Recommendation R(98)13 on the right of rejected asylum seekers to an effective remedy). The Court trusts that the meticulous application of the Supreme Court’s ruling by all Russian courts would allow the judiciary to avoid such failings as those criticised in the present judgment (see paragraphs 161-165) and further develop emerging domestic case-law that directly applies the Convention requirements through judicial practice (see, among the most recent examples, the domestic courts’ decisions examined in Kulevskiy v. Russia (dec), no. 20696/12, §§ 18 and 36, 20 November 2012). The Court notes that the steps being taken by the courts of general jurisdiction echo the important case-law developed by the Russian Constitutional Court on extradition matters and the positive measures taken at other levels, as reflected in the Committee of Ministers’ decisions (see paragraphs 123-124 above). Against this background, it is all the more disturbing for the Court to face situations in which domestic legal mechanisms are blatantly circumvented as a result of the unlawful transfer of applicants to States that seek to prosecute them. The recurrence of such lawlessness is capable of wiping out the effectiveness of domestic remedies on which the Convention system totally relies (compare Al-Saadoon and Mufdhi, cited above, § 166). In the Court’s view, the State’s obligations under the present judgment require the resolution of this recurrent problem without delay.

260.  The lack of an effective domestic investigation into such unacceptable incidents raises further grave concerns, as demonstrated by the present judgment. The Convention requirement of an effective investigation in each incident of that kind instantly stems from the Court’s abundant case-law and finds support in the consistent position of the Committee of Ministers and Parliamentary Assembly, which notably insisted that the perpetrators of such incidents be brought to account in order to send a clear message that such actions would not be tolerated (see the Assembly’s Resolution 1571 (2007), and the Committee of Ministers’ Resolution CM/Res(2010)25, cited above). The Court observes that no such message has been sent either in the present case or in other similar cases that have arisen in the last eighteen months.

261.  The above-mentioned considerations lead the Court to conclude that the obligation arising from Article 46 requires urgent and robust action to be taken by the respondent State, including all such measures as may be needed to resolve the problems revealed by the present judgment. Besides the above-mentioned need to further improve domestic remedies and to prevent their unlawful circumvention in extradition matters, the adoption of general measures in response to the present judgment should address two other important concerns and pursue two corresponding aims.

262.  First, in view of their particularly vulnerable situation, applicants in respect of whom the Court has indicated interim measures must be granted effective protection by the State not only in law, but also in practice. Given that the general protection provided for by the ordinary legal framework regularly fails in cases such as the present one, an appropriate mechanism tasked with both preventative and protective functions, should be put in place to ensure that such applicants benefit from immediate and effective protection against unlawful kidnapping and irregular removal from the national territory and the jurisdiction of the Russian courts. The need for such a mechanism is particularly pressing in respect of the applicants wanted by those States to which unlawful forcible transfers or deportations have already taken place. In view of the exceptional purpose pursued by the interim measures and the likelihood of grave irreparable damage being caused by any breach thereof, any special mechanism thus introduced should be subject to close scrutiny by a competent law-enforcement officer at an appropriate level capable of intervening at short notice to prevent any sudden breach of interim measures that may occur on purpose or by accident. Applicants and their legal representatives should be allowed easy access to the State officers concerned in order to inform them of any emergency and seek urgent protection.

263.  Secondly, given the vital role of the interim measures in the Convention system and, therefore, the utmost importance attached to the States Parties’ compliance with them (see paragraphs 211-213 above), the State should avail itself of appropriate procedures and institutional arrangements to ensure effective investigation into every case of breach of such measures, inasmuch as the existing procedures fail to produce the results required. Close scrutiny of such investigations at an appropriate official level is also called for in order to ensure that they are conducted with the necessary diligence and to the required standard of quality.

264.  While emphasising the above areas of particular concern, the Court does not exclude other avenues for adoption of general measures, some of which have already been outlined in Council of Europe texts (see paragraphs 108-114 above). However, a thorough assessment of all such matters goes beyond the Court’s judicial function in view of the numerous legal, administrative, practical and security issues involved. The Court will therefore abstain at this stage from formulating specific orders, considering that the indications provided above will help to ensure the proper execution of the present judgment under supervision of the Committee of Ministers (see, mutatis mutandis, Burdov (no. 2), cited above, § 137, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 194, 10 January 2012). It is for the Russian authorities to propose to the Committee of Ministers concrete steps to secure the Convention rights concerned, and for the latter to assess the effectiveness of the measures proposed and to follow up their subsequent implementation in line with the Convention requirements, as highlighted by the present judgment.

ECHR: GAGLIANO GIORGI c. ITALIE

On 6 March, the European Court of Human Rights applied in the case Gagliano Giorgi v. Italy (Application no. 23563/07) for the first time the admissibility criteria of “significant disadvantage”, inserted by Protocol 14 to the European Convention on Human Rights, to a case concerning excessive length of criminal proceedings. The Court has reasoned as follows:

57.  En l’espèce, la Cour constate que, en raison de la durée de la procédure litigieuse, le 11 juin 1998, la cour d’appel a déclaré l’extinction du chef d’accusation de corruption pour prescription. Cela a de toute évidence entraîné une diminution de la peine retenue à l’encontre du requérant, d’autant plus que le délit prescrit était assorti de la peine la plus lourde des deux reprochés à l’intéressé, quoique les éléments du dossier ne permettent pas d’apprécier l’importance exacte de cette réduction ni d’éclaircir ultérieurement le lien existant entre la violation du délai raisonnable et celle-ci. La Cour observe également que le requérant a décidé de ne pas renoncer à la prescription, possibilité qui lui était offerte en droit italien (voir Droit interne pertinent, § 42 ci-dessus). Dans ces circonstances, la Cour est de l’opinion que la réduction de la peine en question à tout de moins compensé ou particulièrement réduit les préjudices découlant normalement de la durée excessive de la procédure. Au demeurant, la Cour voit mal la pertinence des observations de la partie requérante ayant trait au fait que l’arrêt du 1er mars 1996 avait octroyé au prévenu le bénéfice du sursis de l’exécution de la peine (voir § 23 ci-dessus). Elle note à cet égard que par ce même arrêt la Cour d’appel de Milan avait en fait déjà déclaré l’extinction du délit de corruption pour prescription.

58.  Dès lors, la Cour considère que le requérant n’a pas subi un « préjudice important » au regard de son droit à un procès dans un délai raisonnable.

59.  Quant à la question de savoir si le respect des droits de l’homme garantis par la Convention et ses Protocoles exige d’examiner la requête au fond, la Cour rappelle que cette notion renvoie aux conditions déjà définies pour l’application des articles 37 § 1 et 38 § 1 (dans sa rédaction antérieure au Protocole no 14) de la Convention. Les organes de la Convention ont interprété de manière constante ces dispositions comme exigeant la poursuite de l’examen d’une affaire, en dépit de la conclusion d’un règlement amiable ou l’existence d’une cause de radiation du rôle. Il a en revanche déjà été jugé que cet examen ne s’imposait pas lorsqu’il existe une jurisprudence claire et très abondante sur la question relative à la Convention qui se pose dans l’affaire soumise à la Cour (voir, entre autres, Van Houten c. Pays-Bas (radiation), no 25149/03, CEDH 2005-IX, et Kavak c. Turquie (déc.), no 34719/04 et 37472/05, 19 mai 2009).

60.  En l’espèce, la Cour estime qu’aucun impératif tiré de l’ordre public européen auquel participent la Convention et ses Protocoles ne justifie de poursuivre l’examen du grief.

61.  En effet, ledit grief pose la question du droit au délai raisonnable en matière pénale et notamment celle de la durée de la procédure principale dans le cadre du remède introduit par la loi « Pinto », qui ont fait l’objet d’une jurisprudence copieuse de la Cour (voir, entre autres, Cocchiarella c. Italie [GC], précité, Simaldone c. Italie, no 22644/03, 31 mars 2009 et Labita c. Italie [GC], no 26772/95, CEDH 2000-IV).

62.  Dans ces conditions, la Cour estime que le respect des droits de l’homme n’exige pas la poursuite de l’examen de ce grief.

63.  Enfin, s’agissant de la troisième condition posée par le nouveau critère de recevabilité, qui exige que l’affaire ait été « dûment examinée » par un tribunal interne, la Cour rappelle qu’elle vise à garantir que toute affaire fera l’objet d’un examen juridictionnel soit sur le plan national, soit sur le plan européen. Cette clause reflète également le principe de subsidiarité, tel qu’il ressort notamment de l’article 13 de la Convention, qui exige que des recours effectifs contre les violations soient disponibles au niveau national (Korolev, précitée). Combinée à la clause de sauvegarde précédente, elle garantit que ne sont pas en jeu devant la Cour des questions sérieuses d’application ou d’interprétation de la Convention et de ses Protocoles, ou des questions importantes relatives au droit national (voir le Rapport explicatif au Protocole no 14, § 83).

64.  En l’espèce, la Cour constate que la question portant sur la durée de la procédure pénale a été examiné à deux reprises par le juge d’appel et par le juge de cassation compétents aux termes de la loi « Pinto », le requérant ayant soumis à ce dernier les moyens tirés du refus de la cour d’appel de lui accorder une indemnisation pécuniaire.

65.  Dans ces conditions, la Cour estime que l’affaire a été dûment examinée par un tribunal interne, aucune question sérieuse relative à l’interprétation ou à l’application de la Convention ou au droit national n’ayant été laissée sans réponse.

66.  Les conditions du nouveau critère de recevabilité étant réunies, la Cour estime que ce grief doit être déclaré irrecevable en vertu de l’article 35 §§ 3 b) et 4 de la Convention.

The Court, however, found a violation of Article 6 on excessive length of judicial proceedings for the “compensation” proceedings for excessive length at the national level:

74.  La Cour note que la procédure « Pinto », débutée le 16 octobre 2001, s’est achevée le 6 décembre 2006 et a donc duré cinq ans et un mois (à ramener à quatre ans et deux mois compte tenu des retards imputables au requérant) pour deux degrés de juridictions. La Cour remarque aussi que, le requérant n’ayant obtenu aucune indemnisation, la procédure « Pinto » n’a pas eu de phase d’exécution.

75.  Même à supposer que la procédure en question revêtait une complexité particulière du fait des nombreux renvois au cours de la procédure principale, soit trois devant la cour d’appel et autant devant la Cour de cassation, la Cour souligne que sa durée a largement dépassé le délai susmentionné de deux ans et six mois, d’autant plus qu’elle n’a comporté aucune phase d’exécution.

76.  Partant, la Cour estime qu’il y a eu violation de l’article 6 § 1, sous l’angle du droit à un jugement dans un délai raisonnable.

Human Rights Committee oncluding Observations on the Libyan Arab Jamahiriya (4th Report)

On 15 November 2007, the Human Rights Committee published its Concluding Observations on the Libyan Arab Jamahiriya (UN Doc. CCPR/C/LBY/CO/4).

The Committee found violations of the prohibition of torture and cruel, inhuman and degrading treatment and of the right to equality and non-discrimination for the implementation of a system of forced detention for women with protection purposes:

9. The Committee regrets that Libyan laws permit the forced detention of women who have not been convicted in so-called social rehabilitation facilities, for their own protection according to the State party, without the possibility to challenge their detention before a court. (arts. 3, 7, 26)
The State party is urged to reconsider the legal provisions which now allow to detention of women in so-called rehabilitation facilities against their own will.

The Committee also found Libya not respecting its human rights obligations on prohibition of torture and cruel, inhuman and degrading treatment and of the right to equality and non-discrimination for not having adopted legislation for protection of women from violence:

10. The Committee also remains concerned that the State party has not yet adopted legislation concerning the protection of women against violence, especially domestic violence. (arts. 3, 7, 26)
The State party should take all necessary measures to effectively combat violence against women, including the enactment of appropriate legislation. The State party is requested to provide detailed information on this subject as well as disaggregated data on prosecution in its next periodic report.

The Committee also judged not in conformity with the Covenant’s human rights obligations the regime of inheritance and divorce towards women:

11. While the Committee takes note of some positive developments regarding the advancement of women, in particular regarding the admission of women to the judiciary and the establishment of a centre for women’s studies as well as a Department for Women’s Affairs, it reiterates its previous concern that inequality between women and men continues to exist in many areas, in law and practice, such as, notably, regarding inheritance and divorce (arts. 3, 17, 24, and 26).
The State party should review its laws in order to ensure equality between men and women in matters of personal status, in particular regarding divorce and inheritance. The State party should furthermore guarantee that equality is ensured in law and in practice.

The Committee also criticised the definition of terrorism and Libya’s counter-terrorism measures as not being in compliance with human rights:

12. While taking note of the State party’s assurance that all counter-terrorism measures taken by the State party are in compliance with international law, the Committee nevertheless is concerned that the terrorism-related elements in the draft penal code are not fully in conformity with the Covenant, and that it lacks a clear definition of “terrorism”. The Committee also regrets the lack of information regarding the safeguards provided by article 4 of the Covenant in times of emergency. The Committee also regrets the lack of information regarding the alleged rendition to Libya by other States of Libyan nationals accused of terrorist crimes (arts.. 4 and 9)
The State party should ensure that the draft penal code in its application to terrorism is compatible with the Covenant and that presently applicable counter-terrorism measures are in full conformity with the Covenant. The State party should also provide the Committee with information regarding the where abouts of the Libyan nationals that have been subject to rendition to Libya.

On death penalty, the Committee made clear its push towards abolition and the strict limits it applies to it:

13. The Committee reiterates its concern that under current legislation the death penalty can be applied to offences which are vague and broadly defined and which cannot necessarily be characterized as the most serious crimes under article 6, paragraph 2, of the Covenant. It also notes that the delegation did not provide sufficient details on the full range of offences punishable by death. The Committee notes the data provided by the State party regarding executions in the past six years which were allegedly for murder and theft, without clarification of the numbers for each offence. The Committee also regrets the absence of information in respect to death sentences (arts. 6 and 15).
The State party should take urgent steps to reduce the number and to specify, also in the envisaged revision of the penal code, the types of crimes for which the death penalty can be imposed. The State party should also provide the Committee with more detailed data regarding death sentences imposed and executions carried out in the past six years. The State party is furthermore encouraged to abolish the death penalty and to consider the ratification of the Second Optional Protocol to the Covenant.

The Committee highlighted the denounced large amount of enforced disapperances and extrajudicial executions:

14. The Committee reiterates its concern regarding the allegedly large number of forced disappearances and cases of extrajudicial, summary, or arbitrary executions and the lack of clarification on the part of the State party in this respect. The Committee is furthermore concerned that some eleven years after the event, the State party was unable to provide information on the status of the work of the Commission responsible for the inquiry into the events at Abu Salim prison in 1996 (arts. 6, 7 and 9).
The State party should urgently investigate all forced disappearances and extrajudicial, summary, or arbitrary executions, prosecute and punish the perpetrators of such acts and grant effective reparation including appropriate compensation, to victims or their families. The State party should provide the statistics required in this respect by the Committee in its previous concluding observations. The State party should ensure that the inquiry into the events in Abu Salim prison of 1996 is finalized as soon as possible and that the full report is made available.

On torture and cruel, inhuman and degrading treatment or punishment in detention facilities, the Committee reported many flaws:

15. While the Committee notes that the oversight of detention facilities is exercised by the Public Prosecutor’s Office and the Ministry of Justice, it remains concerned at continuing reports of systematic use of torture and cruel, inhuman or degrading treatment or punishment and the lack of information by the State party regarding the prosecution of these cases. The Committee is also concerned by the testimony of the Bulgarian nurses and the Palestinian doctor that they had allegedly been subject to ill-treatment and were forced to sign papers absolving the State from any
responsibility regarding their torture or ill-treatment. (arts. 2, 7, 9 and 10).
The State party should take urgent and effective measures to stop the use of all forms of torture and cruel, inhuman or degrading treatment or punishment, and to ensure prompt, thorough, and impartial investigations by an independent mechanism into all allegations of torture and ill-treatment, prosecute and punish perpetrators, and provide effective remedies and rehabilitation to the victims.

The Committee repeated that corporal punishment by amputation is a violation of the prohibition of torture and cruel, inhuman or degrading treatment or punishment:

16. The Committee remains deeply concerned that corporal punishment such as amputation and flogging are prescribed by law even if rarely applied in practice. They constitute a clear violation of article 7 of the Covenant. (art. 7)
The State party should immediately stop the imposition of all corporal punishment and repeal the legislations for its imposition without delay, as stipulated in the previous concluding observations of the Committee.

On impunity:

17. The Committee notes with concern that the continued practice and legal provisions regarding qisas (retribution) and diyah (payment), which may contribute to impunity, remain in force. (arts. 2, 7, 10 and 14)
The State party should review the laws and practice of qisas and the diyah in light of the Covenant.

On asylum-seekers ill-treatment and non-refoulement, the Committee encountered serious human rights violations:

18. While noting the establishment of a committee to draft a law on refugees and migrants, the Committee is concerned by reports that the State party routinely and collectively sends back refugees and asylum-seekers to their countries of origin where they might be subject to torture and other ill-treatment. The Committee furthermore notes with concern the persistent allegations by migrants, asylum-seekers and refugees of being exposed to torture and cruel, inhuman and degrading treatment upon arrest and particularly in detention centres. (arts. 7, 10, and 13)
The State party should adopt legislative and administrative structures to ensure that detention as well as extradition, expulsion or deportation of aliens do not lead to their being subjected to torture or other ill-treatment. The State party should also ensure that aliens claiming risks of torture and cruel, inhuman and degrading treatment can file an appeal against their forced removal with suspensive effects.

On arbitrary detention the Committee addresses the excessive length of pre-trial detention and protested at cases of use of incommunicado detention:

19. The Committee reiterates its concern at reports about the excessive length of pre-trial detention. The Committee is also concerned by the persistent reports of substantial numbers of detainees being held incommunicado, especially in cases of concern to the State security bodies. The Committee is furthermore concerned regarding reports about arbitrary arrests without judicial review and in violation of the provisions of the Covenant (arts. 9 and 14)
The State party should take all necessary measures to ensure that remand in custody and pre-trial detention is not excessively long in law and in practice, particularly through independent judicial supervision and prompt access to lawyers. The State party should also immediately stop arbitrary arrests and ensure that all persons under its jurisdiction are guaranteed the rights contained in the Covenant.

On special courts, the Committee repeated its opposition to their use in light of the ICCPR:

22. While acknowledging the abolition of the People’s Court in 2005, the Committee is concerned that the need for and the mandate of the new State Security Court, as well as the method of appointment and the period of tenure of the judges of this court are unclear, as is the difference between the State Security Court and the former People’s Court. The Committee regrets the reluctance of the State party so far to review the cases decided by the People’s Court (art. 14).
The State party should take urgent measures to ensure that all rights and guarantees provided under article 14 of the Covenant are respected in the composition, functions and procedures of the State Security Court, including that accused persons are granted the right to appeal against decisions of the court. The State party should provide the Committee with information regarding its mandate, legal basis, its composition, and its competence. Finally, the convictions and sentences handed down by the People’s Court should be reviewed by the State party’s judicial authority in the light of the guarantees contained in article 14 of the Covenant.

On freedom of expression and death penalty, finally, the group stressed the arbitrary character of such a punishment:

24. The Committee notes with concern that under Law 71 of 1972 and article 206 of the Penal Code, the death penalty can still be imposed for the establishment of groups, organizations or associations based on a political ideology contrary to the principles of the 1969 Revolution or calling for the establishment of such groups. (arts. 6 and 22)
The State party should provide statistical information on the number of and grounds for people sentenced to death or to prison based on having violated Law 71 of 1972 and Article 206 of the Penal Code. The State party should abolish these legal provisions in light of the Covenant.

ECHR: Moskovets v. Russia

On 23 April 2009, the European Court of Human Rights published its decision on the case Moskovets v. Russia (Application no. 14370/03). The case repeats many caveats already established in the contemporary judgment, Gubkin v. Russia. The Court has found a breach on the lawfulness of detention because of lack of motivation in the judicial order:

53.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Khudoyorov, cited above, § 124, and Fedotov v. Russia, no. 5140/02, § 74, 25 October 2005).

54.  The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).

(…)

64.  The Court considers that the decision of the St Petersburg City Court of 11 March 2003 did not constitute a “lawful” basis for the applicant’s detention from 2 December to 30 December 2002. The Government did not indicate any domestic legal provision that permitted a decision to be taken authorising a period of detention retrospectively. Furthermore, the Court reiterates that any ex post facto authorisation of detention on remand is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see Khudoyorov, cited above, § 142; Vladimir Solovyev, cited above, § 99; and Shukhardin v. Russia, no. 65734/01, § 69, 28 June 2007).

65.  The Court therefore considers that there was a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 2 December to 30 December 2002.

Going on, the Court has also established a violation of article 5(3) on length of detention on remand:

83.  The Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). The Court further reiterates that any system of mandatory detention pending trial is incompatible per se with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty (see Belevitskiy, cited above, § 102, with further references).

84.  The Court further notes that with the exception of the above-mentioned extension order of 28 November 2003 all decisions extending the applicant’s detention in the period from 1 July 2002 to 30 April 2004 were stereotypically worded and in summary form. Besides, they concerned six persons without describing in detail their individual situations.

85.  The Court has already found that the practice of issuing collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee is incompatible in itself with Article 5 § 3 of the Convention (see Aleksey Makarov v. Russia, no. 3223/07, § 53, 12 June 2008; Shcheglyuk v. Russia, no. 7649/02, § 45, 14 December 2006; Korchuganova, cited above, § 76; and Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006). By extending the applicant’s detention by means of collective detention orders the domestic authorities had no proper regard to his individual circumstances.

86.  The Court has frequently found a violation of Article 5 § 3 of the Convention in Russian cases where the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see Belevitskiy, cited above, §§ 99 et seq.; Khudobin v. Russia, no. 59696/00, §§ 103 et seq., ECHR 2006-… (extracts); Mamedova v. Russia, no. 7064/05, §§ 72 et seq., 1 June 2006; Dolgova, cited above, §§ 38 et seq.; Khudoyorov, cited above, §§ 172 et seq., ECHR 2005-X (extracts); Rokhlina, cited above, §§ 63 et seq.; Panchenko, cited above, §§ 91 et seq.; and Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 56 et seq., ECHR 2003-IX (extracts)).

87.  Having regard to the above, the Court considers that by failing to address specific facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify its more than four-year duration. In these circumstances it would not be necessary to examine under Article 5 § 3 of the Convention whether the proceedings were conducted with “special diligence”.

88.  There has therefore been a violation of Article 5 § 3 of the Convention.

The Court found a violation of Article 6(1) as for what concerns the appointment of lay judges as a requirement for a competent tribunal established by law:

97.  The Court reiterates that the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000). The Court is therefore requested to examine allegations such as those made in the present case concerning a breach of the domestic rules for appointment of judicial officers. The fact that the allegation in the present case concerned lay judges does not make it any less important as, pursuant to Article 15 of the Code of Criminal Procedure then in force, in their judicial capacity lay judges enjoyed the same rights as professional judges (see paragraph 34 above).

98.  The Court observes that the parties’ dispute focuses on the extent to which the participation of lay judges Ms D. and Mr S. in the applicant’s trial complied with the domestic legislation, notably the Lay Judges Act.

(…)

100.  The Court reiterates that it has found a violation of Article 6 § 1 of the Convention in other Russian cases in which it had been established that the selection of lay judges had been conducted contrary to the requirements of the Lay Judges Act (see Posokhov v. Russia, no. 63486/00, §§ 40-44, ECHR 2003-IV; Fedotova v. Russia, no. 73225/05, §§ 38-44, 13 April 2006; Shabanov and Tren v. Russia, no. 5433/02, §§ 28-32, 14 December 2006; and, most recently, Barashkova v. Russia, no. 26716/03, §§ 30-34, 29 April 2008). There is no reason to reach a different conclusion in the present case, and, therefore, no need to examine further the second aspect of the applicant’s complaint concerning the judicial capacity of the lay judges Ms D. and Mr S. after 1 January 2004.

101.  The Court concludes, therefore, that the St Petersburg City Court which convicted the applicant on 30 April 2004 cannot be regarded as a “tribunal established by law” and that there has been a violation of Article 6 § 1 of the Convention on that account.

Finally, the Court found a violation of Article 6(1) for excessive length of judicial proceedings:

111.  On the other hand, several manifest delays in the proceedings were caused by the conduct of the domestic authorities. The Court observes, in particular, that on 25 April 2001 the City Court referred the case for an additional investigation owing to serious breaches of the procedure. The resulting delay of eight months (from 25 April 2001 to 25 December 2001) could have been avoided had the relevant domestic authorities complied more strictly with the rules set out in the domestic law.

112.  After the case was submitted to the City Court on 25 December 2001, the first hearing was scheduled for 5 August 2002. The Government explained the resulting seven months’ delay by the heavy workload of the judge and the necessity to select the lay judges. In this respect the Court recalls that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision within a reasonable time (see Löffler v. Austria, no. 30546/96, § 21, 3 October 2000, and Bakhitov v. Russia, no. 4026/03, § 29, 4 December 2008). The Court also deplores the fact that although the domestic authorities were made aware of the applicant’s preference as to the composition of the court as early as November 2001, the selection of the lay judges for the hearing of the applicant’s case was conducted a year later, on 11 November 2002.

113.  The Court further observes that on 5 August 2002 the proceedings were suspended in view of the necessity to search for one of the applicant’s co-defendants. Four months later, on 15 December 2002 the proceedings were resumed despite the fact that the search had yielded no results. It appears that nothing precluded the domestic court from starting the trial four months earlier in the absence of the applicant’s co-defendant, and the delay in question should, therefore, be also attributed to the domestic authorities. Another delay, amounting to five months, for which the domestic authorities can be held responsible, occurred from 30 April 2004 when the trial court pronounced the judgment until the appeal hearing of 30 September 2004.

114.  Having regard to the foregoing, and especially to what was at stake for the applicant, given that he had been held in detention throughout the whole period while the proceedings were pending, the Court considers that the length of the proceedings in the present case did not satisfy the “reasonable time” requirement.

115.  There has accordingly been a breach of Article 6 § 1 of the Convention.

ECHR: Gubkin v. Russia

On 23 April, the European Court of Human Rights released its decision on the case Gubkin v. Russia (Application no. 36941/02).

The Court reinstated its jurisprudence on exhaustion of domestic remedies and overcrowding of prisons (see also Popov and Vorobyev v. Russia):

89.  The Court reiterates that it has already found a violation of Article 13 on account of the absence of an effective remedy for inhuman and degrading conditions of detention, finding as follows (see Benediktov, cited above, § 29, and Vlasov v. Russia, no. 78146/01, § 87, 12 June 2008):

“[T]he Government did not demonstrate what redress could have been afforded to the applicant by a prosecutor, a court or other State agencies, taking into account that the problems arising from the conditions of the applicant’s detention were apparently of a structural nature and did not only concern the applicant’s personal situation (cf. Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; and, most recently, Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006). The Government have failed to submit evidence as to the existence of any domestic remedy by which the applicant could have complained about the general conditions of his detention, in particular with regard to the structural problem of overcrowding in Russian detention facilities, or that the remedies available to him were effective, that is to say that they could have prevented violations from occurring or continuing, or that they could have afforded the applicant appropriate redress (see, to the same effect, Melnik v. Ukraine, no. 72286/01, §§ 70-71, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; and Ostrovar v. Moldova, no. 35207/03, § 112, 13 September 2005).”

90.  These findings apply a fortiori to the present case, in which the Government did not point to any domestic remedy by which the applicant could have obtained redress for the allegedly inhuman and degrading conditions of his detention or put forward any argument as to its efficiency.

As in the contemporary judgment indicated above, the court found overcrowding of prisons to constitute a violation of article 3 ECHR on prohibition of torture and cruel, inhuman or degrading treatment or punishment:

92.  As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). However, to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Valašinas v. Lithuania, no. 44558/98, §§ 100-01, ECHR 2001-VIII). When a person is held in detention, the State must ensure that he is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valašinas, cited above, § 102 and Kudła, cited above, § 94). When assessing conditions of detention, one must consider their cumulative effects as well as the applicant’s specific allegations (see Dougoz v. Greece, 6 March 2001, § 46, Reports of Judgments and Decisions 2001-II). The duration of detention is also a relevant factor.

93.  The Court notes that in the present case the parties have disputed certain aspects of the conditions of the applicant’s detention. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of facts presented to it which the respondent Government have failed to refute.

(…)

99.  The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees (see Benediktov, cited above, §§ 31 et seq.; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III).

100.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that the applicant was obliged to live, sleep and use the toilet in the same cell as so many other inmates for almost seven years was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.

101.  There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention from 15 June 1998 to 25 April 2005 in the facility IZ-61/1 of Rostov-on-Don, which the Court considers to be inhuman and degrading treatment within the meaning of Article 3 of the Convention.

Furthermore, the Court set up important principles on detention on remand, in particular with regard to the assessment of its “lawfulness”, deciding the absence of any grounds by judicial authorities on the detention directly affects the “lawfulness” of the detention under article 5(1):

112.  The Court reiterates that the trial court’s decision to maintain a custodial measure would not breach Article 5 § 1 provided that the trial court “had acted within its jurisdiction … [and] had the power to make an appropriate order” (see Korchuganova v. Russia, no. 75039/01, § 62, 8 June 2006). It is not in dispute that on 12 February 2002 the trial court acted within its powers and there is nothing to suggest that its decision to maintain the applicant’s custodial measure was invalid or unlawful under domestic law at the relevant time. However, the Court observes that on 12 February 2002 the Rostov Regional Court gave no reasons for its decision to remand the applicant in custody. The Regional Court also failed to set a time-limit for the continued detention or for a periodic review of the preventive measure. It follows, therefore, that the applicant remained in a state of uncertainty as to the grounds for his detention from 12 February to 1 July 2002, when the Regional Court re-examined his detention.

113.  The question thus arises whether this could be considered to be “an appropriate order”. In this respect the Court has already found a violation of Article 5 § 1 (c) of the Convention in a number of cases concerning a similar set of facts. In particular, it has held that the absence of any grounds given by judicial authorities in their decisions authorising detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 (see Khudoyorov, cited above, § 134; Nakhmanovich v. Russia, no. 55669/00, §§ 70-71, 2 March 2006; and Stašaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002). Permitting a prisoner to languish in detention without a judicial decision based on concrete grounds and without setting a specific time-limit would be tantamount to overriding Article 5, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Khudoyorov, cited above, § 142).

114.  The Court sees no reason to reach a different conclusion in the present case. It considers that the order of 12 February 2002 did not comply with the requirements of clarity, foreseeability and protection from arbitrariness, which together constitute the essential elements of the “lawfulness” of detention within the meaning of Article 5 § 1.

115.  There has therefore been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 12 February to 1 July 2002.

The Court also adjudicated on the length of detention on remand and its proportionality:

140.  The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion of his involvement in the commission of several criminal offences. However, after a certain lapse of time the persistence of a reasonable suspicion, in itself, no longer sufficed. Accordingly, the domestic authorities were under an obligation to analyse the applicant’s personal situation in greater detail and to give specific reasons for holding him in custody.

141.  The Court observes that in the period from March 2000 to July 2002 the domestic court maintained the applicant in detention without citing any particular reason. Subsequently, in the period from July 2002 to May 2004 the court extended the applicant’s detention on eight occasions. The only ground invoked for continuing the applicant’s detention was the fact that he was charged with serious and particularly serious criminal offences whose dangerousness alone was considered a sufficient reason for holding him in custody (see, in particular, paragraphs 21, 23 and 25 above). Each time the court used the same summary formula to extend the pre-trial detention of five persons, without describing their personal situation in any detail.

142.  As regards the domestic authorities’ reliance on the gravity of the charges as the sole and decisive element, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko, cited above, § 102; Khudoyorov, cited above, § 180; and Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001).

143.  In the present case the domestic courts refused to take into account any specific facts put forward by the applicant in his appeals against extensions and applications for release (see, for instance, paragraph 25 above). The courts assumed that the gravity of the charges carried such a preponderant weight that no other circumstances could have warranted the applicant’s release. The Court reiterates that any system of mandatory detention pending trial is incompatible per se with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty (see Belevitskiy, cited above, § 102, with further references).

144.  The given state of affairs was further aggravated by the fact that the domestic court issued collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee – a practice that the Court has found to be incompatible, in itself, with Article 5 § 3 of the Convention (see Aleksey Makarov v. Russia, no. 3223/07, § 53, 12 June 2008; Shcheglyuk v. Russia, no. 7649/02, § 45, 14 December 2006; Korchuganova, cited above, § 76; and Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006). By extending the applicant’s detention by means of collective detention orders the domestic authorities had no proper regard to his individual circumstances.

145.  Regard being had to the above circumstances, the Court finds that by failing to address the concrete facts of the applicant’s individual situation, by failing to consider the possibility of applying an alternative preventive measure and by relying solely on the gravity of the charges, the authorities extended his detention on grounds which cannot be regarded as “sufficient”. In those circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

146.  The Court finally observes that, notwithstanding the inordinate overall period of the applicant’s detention, at no point in the proceedings did the domestic authorities consider whether the length of his detention had exceeded a “reasonable time” or whether there was any room for applying an alternative measures to ensure his appearance at trial.

147.  There has therefore been a violation of Article 5 § 3 of the Convention.

Finally it concluded  by finding violations of the Convention on length of judicial proceedings and right to an effective remedy:

166.  The Court accepts that the involvement of five co-defendants in the proceedings in itself made the trial sufficiently complex. However, in the Court’s view, the complexity of the case does not suffice, in itself, to account for the length of the proceedings. Moreover, the fact that the applicant was held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Panchenko, cited above, § 133, and Kalashnikov, cited above, § 132).

167.  As regards the applicant’s conduct, the Court notes the Government’s argument that throughout the domestic court proceedings the applicant filed numerous requests in connection with his case, both during his trial and between hearings. It further notes that on many occasions the hearings were adjourned because the applicant sought replacement of the legal-aid counsel assigned to him by the domestic authorities. In this connection, the Court observes that Article 6 does not require a person charged with a criminal offence to co-operate actively with the judicial authorities. In particular, applicants cannot be blamed for taking full advantage of the resources afforded by national law in their defence (see Rokhlina, cited above, § 88, and Kalashnikov, cited above, § 129). As to the Government’s argument about the failure of the applicant’s representatives to appear before the trial court, the Court notes that throughout the trial the applicant was represented by legal-aid counsel appointed by the State. He therefore had little influence upon them and could not be held responsible for their absences. The Court accepts that the applicant was accountable for a certain delay resulting from his requests for adjournments in view of his allegedly poor health. However, this delay was negligible in view of the overall length of the proceedings.

168.  Turning to the conduct of the domestic authorities, the Court observes that the Government have not submitted any satisfactory explanation for the rather substantial periods of inactivity on the part of the domestic court when it came to the examination of the applicant’s convictions of 13 June 2000, 14 May 2001 and 17 May 2004 on appeal. In this connection the Court notes that the periods under consideration amounted to five, eight and ten months respectively, and that their aggregate length delayed the proceedings by almost two years.

169.  Having regard to the foregoing, and especially to what was at stake for the applicant, given that he had been held in detention throughout the whole period in which the proceedings were pending, the Court considers that the length of the proceedings in the present case did not satisfy the “reasonable time” requirement.

170.  There has accordingly been a breach of Article 6 § 1 of the Convention.

171.  In so far as the applicant’s complaint about the lack of an effective domestic remedy is concerned, the Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła, cited above, § 156). It notes that the Government did not indicate any remedy that could have expedited the determination of the applicant’s case or provided him with adequate redress for delays that had already occurred (see Sidorenko v. Russia, no. 4459/03, § 39, 8 March 2007, and Klyakhin, cited above, §§ 100-01). In particular, the Government did not explain how applications to the Prosecutor’s Office or the Rostov Regional Court that the applicant could have made in the course of the criminal proceedings could have expedited those proceedings.

172.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling on his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.

ECHR: Kamburov c. Bulgarie

On 23 April, the European Court of Human Rights published its decision on the case Kamburov c. Bulgarie (Application no. 31001/02, available only in French). In the case it found the violation of article 2(1) of Protocol no. 7, establishing the right to have his/her criminal conviction reviewed by a superior court. In order to trigger in this right the court had to establish whether the offence in merito was a criminal offence:

22.  La Cour rappelle que la notion d’« infraction pénale » du paragraphe 1 de l’article 2 du Protocole no 7 correspond à celle d’« accusation en matière pénale » de l’article 6 § 1 de la Convention (Gourepka c. Ukraine, no 61406/00, § 55, 6 septembre 2005 et Zaicevs c. Lettonie, no 65022/01, § 53, CEDH 2007-… (extraits)). Selon la jurisprudence constante de la Cour, l’applicabilité de l’article 6 sous son aspect pénal doit s’apprécier sur la base de trois critères, à savoir : a) la qualification de l’infraction au niveau interne, b) la nature de l’infraction, et c) le degré de gravité de la sanction dont est passible la personne concernée (voir, parmi beaucoup d’autres, Ezeh et Connors c. Royaume-Uni [GC], nos 39665/98 et 40086/98, § 82, CEDH 2003-X). Les indications que fournit le droit interne de l’État défendeur ont une valeur relative (Engel et autres c. Pays-Bas, 8 juin 1976, § 82, série A no 22, Öztürk c. Allemagne, 21 février 1984, § 52, série A no 73). Pour que l’article 6 s’applique, il suffit que l’infraction en cause soit par nature pénale ou ait exposé l’intéressé à une sanction qui, par sa nature et son degré de gravité, ressortit en général à la matière pénale.

23.  En l’espèce, l’infraction de trouble mineur à l’ordre public était qualifiée d’administrative par le droit bulgare, mais elle visait l’ensemble des citoyens et elle était passible d’une amende ou d’une peine de détention pouvant allait jusqu’à quinze jours. Eu égard à la portée générale de l’infraction, ainsi qu’à la nature et au degré de sévérité de la sanction maximum prévue par la législation interne, la Cour considère que le requérant a fait l’objet d’une « accusation en matière pénale » au sens de l’article 6 de la Convention (Zaicevs c. Lettonie, no 65022/01, §§ 31 à 36, CEDH 2007-… (extraits), Borissova c. Bulgarie, no 56891/00, §§ 29 et 30, 21 décembre 2006). En conséquence, la Cour conclut que l’article 2 du Protocole no 7 est applicable au cas de l’espèce et rejette l’exception soulevée par le Gouvernement.

Then, the Court found the violation as the procedure for review did not exist and the offence could not be cathegorised as a minor one, as the law provided for the possibility of detention as punishment:

24.  La Cour note qu’il n’est pas contesté qu’en vertu de l’article 7 du décret de 1963, le jugement du tribunal de district était définitif. Le Gouvernement soutient que l’intéressé pouvait introduire un recours en révision. Mais les dispositions régissant cette possibilité ont été abrogées plusieurs années avant la condamnation du requérant. Quant au recours en réouverture prévu par la loi de 1969, il ne remplissait pas les exigences de l’article 2 du Protocole no 7, car, outre son champ d’application très restreint, il n’était pas directement accessible au requérant (Gourepka, précité, §§ 60 et 61).

25.  Reste à vérifier si l’infraction pour laquelle le requérant a été condamné ne s’analyse pas en une « infraction mineure », au sens de l’article 2 § 2. A cet égard, la Cour doit se pencher sur les termes du rapport explicatif au Protocole no 7, d’où il ressort expressément que, pour décider si une infraction est de caractère mineur, un critère important est la question de savoir si l’infraction est passible d’emprisonnement ou non (paragraphe 16 ci-dessus).

26.  En l’occurrence, le décret de 1963 rendait l’infraction litigieuse passible d’une détention pouvant aller jusqu’à quinze jours. Or, eu égard à l’objectif de l’article 2 et à la nature des garanties qu’il prévoit, la Cour est convaincue qu’une infraction pour laquelle la loi prévoit une peine privative de liberté à titre de sanction principale ne peut pas être qualifiée de « mineure » au sens du paragraphe 2 de cet article (Zaicevs, précité, § 55). Le requérant aurait dû donc avoir la possibilité de faire examiner par une juridiction supérieure le jugement du tribunal de district.

27. Partant, il y a eu violation de l’article 2 du Protocole no 7.

ECHR: Affaire Rangelov c. Bulgarie

The European Court of Human Rights published on 23 April 2009 its decision on the case Affaire Rangelov c. Bulgarie (Application no. 14387/03, available only in French. In the decision the Court repeated its doctrine on detention on remand, as already established in other cases, included Popov and Vorobyev v. Russia.
The Court found a violation of article 5(4) of the Convention, the right to judicial review of the detention, because Bulgarian courts cannot appreciate evidence when deciding on the legitimacy of the detention on remand of a criminal suspect:

44.  La Cour rappelle que l’article 5 § 4 exige des tribunaux saisis d’une demande de libération, entre autres, d’examiner la question de savoir s’il existe des raisons plausibles de soupçonner le détenu de la commission d’une infraction pénale (Grauslys c. Lituanie, no 36743/97, § 53, 10 octobre 2000). Elle a déjà eu l’occasion par le passé de constater l’inobservation de cette exigence par les tribunaux bulgares en raison de la jurisprudence interne qui interdisaient aux juges de se livrer à une analyse des preuves recueillies lorsqu’ils étaient saisis d’une demande de libération après le renvoi de la personne concernée en jugement (voir Nikolova c. Bulgarie [GC], no 31195/96, §§ 59 et 61, CEDH 1999-II; Ilijkov c. Bulgarie, no 33977/96, §§ 95 à 99, 26 juillet 2001).

45.  La Cour constate le même défaut de la procédure de contrôle de la légalité de la détention dans la présente affaire. Les tribunaux n’ont fait que constater le fait que l’intéressé était inculpé d’infractions pénales graves sans se livrer à une analyse des preuves recueillies afin d’établir s’il existait des raisons plausibles de soupçonner l’intéressé de la commission de ces infractions. La Cour estime que la situation du requérant est identique à celle des requérants dans les affaires susmentionnées où elle a trouvé violation de l’article 5 § 4 en raison de l’étendue limitée du contrôle opéré par les tribunaux sur la régularité de la détention provisoire. Elle ne voit pas de raison d’arriver à une conclusion différente dans le cas d’espèce.

Moreover, it established that the Government cannot justify the excessive length of the judicial proceedings, in this case of  due to the death of one of the jurors, and that the Government is responsible for violation of article 6(1) when this is due from problems arising from the legal system itself:

56.  La Cour constate en revanche que le retard le plus important de la procédure pénale a été imputable aux juridictions : celui-ci est survenu suite au décès d’un des jurés. Toutes les mesures d’instruction accomplies devant le tribunal de la ville de Sofia ont été mises à néant et le tribunal a dû recommencer à recueillir toutes les preuves. Ainsi, un retard de trois ans a été accumulé, alors que cette situation aurait pu être évitée si le tribunal avait été assisté d’un juré suppléant, une possibilité que le code de procédure pénale de 1974 prévoyait dans son article 259 (voir Ilijkov précité, § 64).

57.  Dès lors, la Cour estime que la durée des poursuites pénales contre le requérant a dépassé les limites du délai raisonnable et elle conclut à la violation de l’article 6 § 1 de la Convention.