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.

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