ITEMID: 001-113287
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ABDULKHAKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Tajikistan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 6. The applicant was born in 1979. He is currently in hiding in Tajikistan.
7. The applicant lived in the village of Sultanabod in Andijan Region, which is located in the Fergana Valley of Uzbekistan. He worked as a carpenter.
8. The events preceding the applicant’s departure from Uzbekistan, as described by him, may be summarized as follows.
9. On 25 May 2009 a police station in Khanabad, a neighbouring town, was burnt down. A number of witnesses stated that they had seen a car belonging to a resident of Sultanabod. The owner of the car was arrested. The police found out that he was a practising Muslim and that he regularly went to the mosque.
10. The imam of the local mosque was arrested, tortured and forced to disclose the names of all those visiting the mosque. In particular, he named Mr K., who taught the Koran. Mr K. was also arrested and tortured. He gave the police the names of his pupils, including the applicant’s name.
11. The applicant was summoned to the local police station, where he was beaten with the aim of extracting a confession to his involvement in extremist activities. He was, however, released after his relatives had bribed the police. He was then fined for participating in unlawful religious gatherings and for praying outside the mosque.
12. According to the applicant, all those arrested after the events of 25 May 2009 were convicted of anti-government activities and sentenced to imprisonment.
13. On 24 August 2009 the applicant left for Kazakhstan. His family, including his parents, one of his brothers, wife and three minor children, remained in Uzbekistan.
14. On 8 September 2009 the applicant’s house in Sultanabod was searched and a religious book was found. He then received a telephone call from a local police officer, who insisted that he should return to Uzbekistan.
15. On 4 November 2009 the applicant left Kazakhstan for Russia. He firstly went to the city of Kazan where another of his brothers lived and then, on 8 December 2009, took a train to Moscow. He intended to travel onward to Ukraine, where he wanted to apply for refugee status.
16. On 20 September 2009 the Andijan Region Interior Department charged the applicant with participating in an extremist organisation of a religious, separatist or fundamentalist nature (Article 244-2 § 1 of the Uzbek Criminal Code).
17. On 9 October 2009 the Andijan Town Court ordered the applicant’s arrest. On 13 October 2009 his name was put on the list of wanted persons.
18. On 24 October 2009 the Andijan Region Interior Department amended the charges against the applicant. He was charged with participating in an extremist organisation of a religious, separatist or fundamentalist nature; smuggling of extremist materials; storing and distributing materials containing religious extremist, separatist and fundamentalist ideas; using religion with the aim of disturbing the public peace and order; disseminating slanderous and damaging insinuations and committing other acts against the established rules of conduct and national security; and calling for the overthrow of the constitutional order of Uzbekistan, the usurpation of power and breach of the territorial integrity of Uzbekistan (the offences contained in Articles 244-2 § 1, 246 § 1, 244-1 § 3, 159 § 3 of the Uzbek Criminal Code). In particular, he was accused of membership of a banned organisation, “jamaat”, which was allegedly disseminating “the separatist, fundamentalist and extremist ideas of Wahhabism”. The members of that organisation were claimed to hold regular religious gatherings and to collect money. The applicant was also accused of smuggling religious books authored by Muhammad Rafiq Kamoliddin and Abduvali Mirzaev, which allegedly “encouraged unconstitutional and anti-government sentiments” and contained “slanderous insinuations alien to traditional Islam”. The Interior Department concluded from the above that, by being a member of a banned religious organisation and by smuggling extremist religious books, the applicant had disseminated the ideas of Wahhabism, called for the establishment of an Islamic Caliphate based on Sharia, and “slandered the democratic system established in the Republic of Uzbekistan”.
19. On 8 December 2009 the Moscow Interior Department informed the Andijan Region Anti-Terrorism Department that, according to their information, the applicant would arrive in Moscow the next day. In reply, the Andijan Region Anti-Terrorism Department confirmed that the applicant was wanted by the Uzbek authorities on the charge of membership of an extremist organisation of a religious, separatist or fundamentalist nature and that an arrest warrant had been issued in respect of him. It asked the Moscow Interior Department to keep the applicant in custody pending an extradition request, which would be sent without delay.
20. On 9 December 2009, immediately after his arrival in Moscow, the applicant was arrested.
21. On 30 December 2009 the Prosecutor General’s Office of the Russian Federation received a request for the applicant’s extradition from the Prosecutor General of Uzbekistan. The Uzbek prosecutor’s office gave an assurance that the applicant would not be extradited to a third-party State, or prosecuted or punished for any offences committed before extradition and which were not mentioned in the extradition request, without Russia’s consent. It also stated that after serving his sentence he would be free to leave Uzbekistan.
22. On 31 December 2009, 19 January and 3 February 2010 the Ministry of Foreign Affairs, the Federal Migration Service and the Federal Security Service informed the Prosecutor General that the applicant did not hold Russian citizenship and there were no other obstacles to his extradition to Uzbekistan.
23. On 5 May 2010 further assurances were given by a Deputy Prosecutor General of Uzbekistan. He gave an undertaking that the applicant would not be subjected to torture, violence or other forms of inhuman or degrading treatment and that the rights of the defence would be respected. He also gave an assurance that the Uzbek authorities had no intention of persecuting the applicant for political motives or on account of his race or religious beliefs.
24. On 10 December 2009 the Moskovsko-Ryazanskiy Transport Prosecutor ordered the applicant’s detention. He referred to the arrest warrant issued by the Andijan Town Court, to Article 61 of the 1993 Minsk Convention and to Article 108 of the Code of Criminal Procedure (“CCrP”).
25. On 18 January 2010 the Moskovsko-Ryazanskiy Transport Prosecutor again ordered the applicant’s detention. He referred to the extradition request received from the Uzbek authorities and relied on Article 466 § 2 of the CCrP.
26. On 8 February 2010 the Meshchanskiy District Court of Moscow extended the applicant’s detention until 9 June 2010, referring to Article 109 of the CCrP. On 7 April 2010 the Moscow City Court upheld the decision on appeal.
27. On 9 June 2010 the Meshchanskiy District Court extended the applicant’s detention until 9 September 2010, referring to Article 109 of the CCrP. On 28 July 2010 the Moscow City Court upheld that decision on appeal. It found, in particular, that the applicant’s detention was in conformity with Article 61 of the 1993 Minsk Convention and Article 466 § 2 of the CCrP.
28. On 7 September 2010 the Meshchanskiy District Court ordered a further extension of the applicant’s detention until 9 December 2010.
29. The applicant appealed on 9 September 2010. On 1 December 2010 the Moscow City Court rejected his appeal and upheld the decision of 7 September 2010.
30. On 8 December 2010 the Moscow City Court extended the applicant’s detention until 9 June 2011 on the grounds that the extradition proceedings against him were still pending.
31. On 16 December 2010 the applicant lodged appeal submissions. On 20 January 2011 the Supreme Court of the Russian Federation upheld the extension order on appeal.
32. On 9 June 2011 the Moskovsko-Ryazanskiy Transport Prosecutor ordered the applicant’s release subject to his lawyer providing a personal guarantee. Relying on Article 109 of the Code of Criminal Procedure (see paragraph 84 below), he found that the maximum detention period permitted under Russian law had expired and that it was not possible to extradite the applicant for the time being due to the indication of an interim measure by the Court.
33. On 22 December 2009 the applicant applied to the Russian Federal Migration Service (“the FMS”) for refugee status. In particular, he submitted that he was being persecuted in Uzbekistan for his religious beliefs. He feared being tortured with the aim of obtaining a confession to offences he had not committed.
34. On 13 April 2010 the Moscow Town Department of the FMS rejected his application.
35. On 6 September 2010 that decision was confirmed by a deputy head of the FMS. He found that, given that a majority of the population of Uzbekistan was Muslim, the applicant’s persecution for his adherence to Islam was unlikely. Although, according to the information provided by the Ministry of Foreign Affairs, the Uzbek authorities exercised close control over the religious life of the population, that was justified by their legitimate intention to limit the influence of radical Islamic organisations, such as Jamaat-e-Islami. The FMS had no competence to verify whether the charges brought against the applicant in Uzbekistan were well-founded. It therefore appeared that the application for refugee status had been motivated by the applicant’s wish to avoid criminal liability. As regards the applicant’s allegations of a risk of ill-treatment in Uzbekistan, they could not serve as a basis for granting refugee status. The existence of such a risk, if substantiated, might, however, serve as a basis for granting temporary asylum.
36. The applicant challenged that refusal before the Basmanniy District Court of Moscow. He complained that the FMS had presumed him guilty of the offences imputed to him and had disregarded his argument that he was being persecuted for his religious beliefs. He submitted that he had been tortured and fined for praying outside the mosque and that criminal proceedings had been opened against him after a religious book, which had never been declared extremist or banned by the authorities, had been found in his house. He also referred to the case-law of the Court, in particular the cases of Yuldashev v. Russia (no. 1248/09, 8 July 2010), Abdulazhon Isakov v. Russia (no. 14049/08, 8 July 2010), and Karimov v. Russia (no. 54219/08, 29 July 2010) in which the Court had found, in similar circumstances, that the applicants’ forced return to Uzbekistan would give rise to a violation of Article 3 of the Convention.
37. On 19 November 2010 the Basmanniy District Court confirmed the decision of 6 September 2010. It found that the reasons for the refusal of refugee status advanced by the FMS had been convincing and that the applicant had failed to substantiate his allegation that he had been persecuted for his religious beliefs.
38. The applicant appealed. He repeated his arguments advanced before the FMS and the Basmanniy District Court. He also referred to Amnesty International reports describing persecution and ill-treatment of members of minority religious Islamic groups.
39. On 24 December 2010 the Moscow City Court upheld the judgment of 19 November 2010 on appeal, finding that it had been lawful, well-reasoned and justified.
40. On 16 June 2011 the applicant applied to the FMS for temporary asylum, referring to the risks of his ill-treatment and persecution for his religious beliefs.
41. On 13 July 2011 the Moscow Town Department of the FMS rejected his application. It found that the applicant could not be persecuted for his religious beliefs because he belonged to the Sunni branch of Islam, which was the religion followed by 80% of the population of Uzbekistan. The charges brought against him appeared to be well-founded. It was also relevant that the applicant had never applied for a residence or work permit in Russia. There were therefore no grounds for granting temporary asylum to him.
42. On an unspecified date in October 2011 a deputy head of the FMS quashed the decision of 13 July 2011 and remitted the application for temporary asylum for fresh examination before the Moscow Town Department of the FMS.
43. It appears that the temporary asylum proceedings are still pending.
44. By letter of 18 November 2011, the office of the United Nations High Commissioner for Refugees (“UNHCR”) informed counsel for the applicant that the applicant had been granted mandate refugee status. The UNHCR found that he had a well-founded fear of being persecuted and ill-treated in Uzbekistan for reasons of his religion and imputed political opinion.
45. On 14 May 2010 a deputy Prosecutor General decided to extradite the applicant to Uzbekistan. The prosecutor enumerated the charges against the applicant and found that his actions were punishable under Russian criminal law. An extradition order was granted in respect of attempted overthrow of the constitutional order of Uzbekistan and dissemination of materials presenting a danger to national security and public order. The prosecutor found that the above offences corresponded to the offences of attempted violent overthrow of the government and constitutional order and public incitement to extremist activities, which were proscribed by Russian criminal law. However, the prosecutor refused to extradite the applicant for smuggling of extremist materials because this was not an offence under Russian criminal law and for membership of “Jamaat” because that organisation had never been declared extremist or terrorist in Russia.
46. The applicant challenged the extradition order before the Moscow City Court. He submitted that the accusations against him were unfounded and he was in fact being persecuted by the Uzbek authorities on account of his religious beliefs. He faced torture and other forms of ill-treatment if extradited to Uzbekistan. It transpired from the reports by the UN agencies and by respected international NGOs that torture was widespread in Uzbekistan and confessions were often extracted from defendants under duress. He also referred to the Court’s case-law, in particular the cases of Ismoilov and Others v. Russia (no. 2947/06, 24 April 2008) and Muminov v. Russia (no. 42502/06, 11 December 2008) concerning extradition to Uzbekistan.
47. During the hearing, Ms R., an expert in refugees from Central Asia, testified that charges under Article 159 of the Uzbek Criminal Code (attempted overthrow of the constitutional order of Uzbekistan, usurpation of power and breach of the territorial integrity of Uzbekistan) were in most cases politically motivated. Charges under Article 159 were often brought against individuals criticising the authorities or following religious practices not approved by the State. Such individuals were at a substantially higher risk of ill-treatment. In her opinion, the applicant was being persecuted for his religious beliefs and practices. She had drawn that conclusion, in particular, from the fact that he was being prosecuted for possessing a religious book by Abduvali Mirzaev, a respected imam whose followers were often targeted by the Uzbek authorities. It was significant that the books authored by him were not banned in Uzbekistan or any other country. She also referred to the Court’s case-law establishing that diplomatic assurances were not sufficient to ensure adequate protection against the risk of ill-treatment.
48. A witness for the applicant, Mr N., a former investigator in Uzbekistan, testified that ill-treatment was wide-spread in Uzbekistan. Suspects were tortured to obtain confessions and those confessions were subsequently used against them at trial. He also confirmed Ms R.’s statement that charges under Article 159 of the Uzbek Criminal Code were often brought against believers who attended a mosque, prayed or wore a beard. All persons charged under Article 159 were tortured.
49. The applicant asked the court to examine the reports about the situation in Uzbekistan by the UN agencies and human rights NGOs and the judgments of the Court. His request was rejected.
50. During the hearing the applicant also disputed the prosecutor’s finding that the actions imputable to him were punishable under Russian criminal law. He argued that under Russian law only the attempted violent overthrow of the government and the constitutional order was prosecutable, while he had never been accused of resorting to violence. Nor could possession of religious books be characterised as public incitement to extremist activities.
51. On 29 December 2010 the Moscow City Court upheld the extradition order. It held that the Uzbek and Russian authorities had followed the extradition procedure set out in applicable international and domestic law. The applicant was charged with offences punishable under Uzbek and Russian criminal law and there was no evidence that he was being persecuted for his political opinions or religious beliefs. The City Court found that the international reports, expert opinions and the Court’s case-law relied upon by the applicant were irrelevant because they described the general situation in Uzbekistan rather than the applicant’s personal circumstances. Mr N.’s testimony was also irrelevant because it referred to the situation from 1999 to 2002. The Uzbek authorities had given assurances that the applicant would not be tortured. There was no reason to question the validity of those assurances, which had been given by a competent State authority, the Prosecutor General’s office of Uzbekistan. The City Court therefore considered that the assurances were sufficient to exclude any risk of ill-treatment. It further held that the issue of the applicant’s guilt or innocence was not within the scope of the review undertaken by the extraditing authorities.
52. The applicant appealed. He reiterated his arguments advanced before the Moscow City Court and relied on Article 3 of the Convention. He further submitted that the diplomatic assurances against ill-treatment were unreliable due to the absence of any mechanism of compliance monitoring or any accountability for a breach of such assurances.
53. On 14 March 2011 the Supreme Court of the Russian Federation rejected his appeal and upheld the decision of 29 December 2010, finding that it had been lawful and justified. It endorsed the City Court’s finding that the international reports on the situation in Uzbekistan were irrelevant because they were not based on “real evidence”. It also found that the diplomatic assurances given by the Uzbek authorities were sufficient to ensure adequate protection against eventual ill-treatment of the applicant because if the assurances in respect of the applicant were breached, Russia would refuse to extradite other people. Moreover, the applicant had not submitted any evidence that such assurances had been breached in previous cases.
54. According to the applicant, in the afternoon of 23 August 2011 he met two acquaintances, K. and A., in the centre of Moscow. They were stopped by a policeman who checked their identity documents.
55. Immediately after that five or six people in plain clothes grabbed them by the arms and forced them into a van. The abductors put black plastic bags on their heads and laid them on the floor of the van.
56. By about 4 p.m. they arrived at a forest outside Moscow. They were then beaten and threatened with a gun. Their hands were burnt using a lighter.
57. At sunset they were handcuffed, forced into the van and brought to an airport by 1 a.m. on 24 August 2011. They drove directly into the airfield and parked near an airplane. They were then placed onboard the airplane, accompanied by two guards. The passengers boarded afterwards. The airplane took off at 1.40 a.m. and landed in the city of Khujand in Tajikistan three-and-a-half hours later.
58. At Khujand Airport the applicant, K. and A. were handed over to Tajik policemen. Black plastic bags were again put on their heads and they were then separated and placed in different cars.
59. The applicant was taken to a police station in Khujand, where he remained for three days. He was ill-treated and required to give evidence against K. The police officers threatened to tie him up and throw him into a river, stating that nobody knew that he was in Tajikistan because he had not been checked in for the flight.
60. On 26 August 2011 the applicant was taken to Dushanbe. He was taken to a police station, where he was questioned. On the next day he was placed in a temporary detention centre, where he remained until 2 September 2011.
61. On 30 August 2011 the Shokhmansurskiy District Court ordered the applicant’s detention pending extradition to Uzbekistan.
62. On 2 September 2011 the applicant was transferred to remand centre no. 1 in Dushanbe.
63. On 22 November 2011 the applicant was told that a court had ordered his release. He was released the next day.
64. A certificate issued by the Ministry of Justice of Tajikistan states that the applicant had “served his prison sentence” from 27 August to 22 November 2011.
65. The applicant has been in hiding ever since. Intending to return to Russia, he asked the UNHCR to assist him with recovering his national passport, which had been retained by the FMS in Moscow.
66. On an unspecified date an investigator of the Investigations Committee of the Zamoskvoretskiy District of Moscow opened an inquiry into the circumstances of the applicant’s abduction.
67. On 20 January 2012 the investigator refused to open criminal proceedings into the incident.
68. On 26 March 2012 the acting head of the Zamoskvoretskiy District Investigations Committee quashed the decision of 20 January 2012 and ordered an additional inquiry. He found that it was necessary to question counsel for the applicant and to obtain information about the applicant’s crossing of the Russian border.
69. The inquiry was resumed. On unspecified dates between 26 March and 5 April 2012 the investigator ordered that the local police should search for witnesses to the applicant’s abduction. In the same period he also sent inquiries for information about the applicant to the Federal Security Service, the local office of the Transport Department of the Interior Ministry, the FMS, the State Border Control Office in Domodedovo Airport, and other state agencies.
70. It appears that the inquiry is pending.
71. Chapter 54 of the Code of Criminal Procedure (“CCrP”) of 2002 governs the procedure to be followed in the event of extradition.
72. An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that case the extradition order should not be enforced until a final judgment is delivered (Article 462 § 6).
73. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4).
74. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in applicable international and domestic law (Article 463 § 6).
75. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be denied: a Russian citizen (Article 464 § 1 (1)) or a person who has been granted asylum in Russia (Article 464 § 1 (2)); a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1 (3)); a person in respect of whom criminal proceedings cannot be launched or a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground in Russian law (Article 464 § 1 (4)); or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1 (5)). Finally, extradition should be denied if the act that serves as the basis for the extradition request does not constitute a criminal offence under the Russian Criminal Code (Article 464 § 1 (6)).
76. In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a sentence for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served (Article 465 § 1).
77. In its ruling no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court indicated, with reference to Article 3 of the Convention, that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture, inhuman or degrading treatment in the requesting country. Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition. Russian authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty, subjected to ill-treatment or persecuted because of his or her race, religious beliefs, nationality, ethnic or social origin or political opinions. The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was sought. They should take into account the testimony of the person concerned and that of any witnesses, any assurances given by the requesting country, and information about the country provided by the Ministry of Foreign Affairs, by competent United Nations institutions and by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
78. The Constitution guarantees the right to liberty (Article 22):
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
79. The CIS Convention on legal assistance and legal relations in civil, family and criminal cases (“the Minsk Convention”), to which both Russia and Uzbekistan are parties, provides that in executing a request for legal assistance, the requested party applies its domestic law (Article 8 § 1).
80. A request for extradition must be accompanied by a detention order (Article 58 § 2). Upon receipt of a request for extradition, measures should be taken immediately to find and arrest the person whose extradition is sought, except in cases where that person cannot be extradited (Article 60).
81. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent (Article 61 § 1). A person may also be arrested in the absence of such a request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence for which extradition may be requested. The other Contracting Party must be immediately informed of the arrest (Article 61 § 2).
82. A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1).
83. The term “court” is defined by the CCrP as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54).
84. Chapter 13 of the CCrP (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), while criminal proceedings are pending. Such measures include placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive measure of restraint cannot be used (Article 108 §§ 1 and 3). A period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110).
85. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1). The competent court is the court with territorial jurisdiction over the location at which the preliminary investigation is conducted (ibid.).
86. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought. The measure must be applied in accordance with established procedure (Article 466 § 1). If a request for extradition is accompanied by an arrest warrant issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article 466 § 2).
87. On 4 April 2006 the Constitutional Court examined an application by Mr N., who had submitted that the lack of any limitation in time on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention. In its decision no. 101-O of the same date, the Constitutional Court declared the application inadmissible. In its view, the absence of any specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, which in the case of Russia was the procedure laid down in the CCrP. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. Accordingly, Article 466 § 1 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or the time-limits fixed in the Code. The Court also refused to analyse Article 466 § 2, finding that it had not been applied in Mr N.’s case.
88. On 1 March 2007 the Constitutional Court in its decision no. 333-O-P held that Articles 61 and 62 of the Minsk Convention, governing a person’s detention pending the receipt of an extradition request, did not determine the body or official competent to order such detention, the procedure to be followed or any time-limits. In accordance with Article 8 of the Minsk Convention, the applicable procedures and time-limits were to be established by domestic legal provisions.
89. The Constitutional Court further reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention, in that it required a court to examine whether the arrest was lawful and justified. The Constitutional Court held that Article 466 § 1 of the CCrP, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure and within the time-limits established in Chapter 13 of the CCrP.
90. On 19 March 2009 the Constitutional Court by its decision no. 383-O-O dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate the constitutional rights of [the claimant] ...”
94. Article 33 of the UN Convention on the Status of Refugees of 1951, which was ratified by Russia on 2 February 1993, provides as follows:
“1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
95. The Refugees Act (Law no. 4258-I of 19 February 1993) incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1 § 1 (1)).
96. The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2 § 1 (1) and (2)).
97. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10 § 1).
98. If a person satisfies the criteria established in section 1 § 1 (1), or if he does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12 § 2). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4).
99. In his report of 3 February 2003 submitted in accordance with the United Nations Commission on Human Rights resolution 2002/38 (E/CN.4/2003/68/Add.2), the Special Rapporteur on the question of torture, Theo van Boven, described the situation in Uzbekistan as follows:
“66. The combination of a lack of respect for the principle of presumption of innocence despite being guaranteed by the Constitution (art. 25) and [the CCrP] (art. 23), the discretionary powers of the investigators and procurators with respect to access to detainees by legal counsel and relatives, as well as the lack of independence of the judiciary and allegedly rampant corruption in the judiciary and law enforcement agencies, are believed to be conducive to the use of illegal methods of investigation. The excessive powers in the overall criminal proceedings of procurators, who are supposed at the same time to conduct and supervise preliminary criminal investigations, to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention, make investigations into complaints overly dependent on their goodwill ...
...
68. The Special Rapporteur believes, on the basis of the numerous testimonies (including on a number of deaths in custody) he received during the mission, not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations, that torture or similar ill-treatment is systematic as defined by the Committee against Torture. Even though only a small number of torture cases can be proved with absolute certainty, the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process cannot be denied. The Special Rapporteur also observes that torture and other forms of ill-treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.”
100. Subsequently, the UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006:
“The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials ... Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.”
101. Further referring to the situation regarding torture in Uzbekistan, the UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008:
“741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials ...
...
744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002 ...”
102. In its 2010 report (CCPR/C/UZB/CO/3) the UN Human Rights Committee, stated, in so far as relevant, as follows:
“11. The Committee notes with concern the continued reported occurrence of torture and ill-treatment, the limited number of convictions of those responsible, and the low sanctions generally imposed, including simple disciplinary measures, as well as indications that individuals responsible for such acts were amnestied and, in general, the inadequate or insufficient nature of investigations on torture/ill-treatment allegations. It is also concerned about reports on the use, by courts, of evidence obtained under coercion, despite the 2004 ruling of the Supreme Court on the inadmissibility of evidence obtained unlawfully ...
...
19. The Committee is concerned regarding the limitations and restrictions on freedom of religion and belief, including for members of non-registered religious groups. It is concerned about persistent reports on charges and imprisonment of such individuals. It is also concerned about the criminalization, under article 216-2 of the Criminal Code, of “conversion of believers from one religion to another (proselytism) and other missionary activities” (CCPR/C/UZB/3, para. 707). (art. 18) ...”
103. In its report of 29 March 2004, “Creating Enemies of the State: Religious Persecution in Uzbekistan”, Human Rights Watch remarked:
“For the past decade, with increasing intensity, the government of Uzbekistan has persecuted independent Muslims. This campaign of religious persecution has resulted in the arrest, torture, public degradation, and incarceration in grossly inhumane conditions of an estimated 7,000 people.
The campaign targets nonviolent believers who preach or study Islam outside the official institutions and guidelines. They include independent imams and their followers, so-called Wahhabis - a term used incorrectly by the government to defame people as “fundamentalists.” The most numerous targets were adherents of the nonviolent group Hizb ut-Tahrir (Party of Liberation), whose teachings in favor of an Islamic state the government finds seditious ...
International human rights law guarantees individuals the right to have and to express religion or beliefs. The Uzbek government’s policy and practices directly contravene these standards, as they punish certain religious believers for the content of their belief, for expressing their beliefs, exchanging information with others, or engaging in nonviolent association. In their treatment of independent Muslims, the Uzbek authorities’ systematic torture, ill-treatment, public degradation, and denial of due process also violate the country’s obligations under international law.
This report documents these violations. It explains how the state criminalized legitimate religious practice and belief and how it casts individuals’ exercise of their rights to freedom of conscience, expression, and association as attempts to overthrow the government. It details the ordeal independent Muslims have endured from their arrest through to their incarceration, in some cases serving up to twenty years. Most of the people whose stories are documented in this report remain incarcerated. They were tortured and suffered other forms of mistreatment by police trying to obtain confessions. They endured incommunicado detention, denial of defense counsel, denial of a fair trial, and convictions based on fabricated evidence. They continue to suffer torture and ill-treatment as they serve their sentences in Uzbek prisons. We also document the arrest, harassment, and intimidation of their families, including Soviet-style public denunciations that local officials stage against perceived Islamic “fundamentalists.” ...
Finally, the report describes the obstacles independent Muslims face in seeking redress through state agencies, including the courts, the ombudsperson’s office, and the procuracy. It also recounts the harassment they sometimes face in retribution for appealing to international organizations ...
... Since 2000, arrests and convictions of independent Muslims - members of Hizb ut-Tahrir mostly, but also people accused of “Wahhabism” - have continued apace and have outstripped the number of people returned to liberty following implementation of presidential amnesty decrees in 2001 and 2002. As of September 25, 2003, Human Rights Watch had analyzed and entered the cases of 1,229 independent Muslims into its database of religious prisoners in Uzbekistan. The cases of about 150 additional individuals convicted on charges related to religious activity, belief, or affiliation remained to be examined and entered into the database. Researchers from the Russian rights group Memorial have documented the cases of 1,967 independent Muslims.
While the campaign was carried out by law enforcement agents nationwide, it appeared that the arrests of independent Muslims occurred on a most massive scale in the capital city Tashkent and certain cities in the Fergana Valley. The overwhelming majority of cases documented by Human Rights Watch and Memorial involved the arrest of people from these regions.
As detailed in this report, the government’s actions were intended to eliminate a perceived threat of Islamic “fundamentalism” and “extremism” by silencing and punishing Muslims who rejected government control of religion. The policy was designed and carried out to remove charismatic Islam from the political equation, to prevent any potential contest between the Karimov government and independent-minded Muslim leaders for authority and the loyalty of the people. Fear of religion as a competitor for the hearts and minds of the people is part of the Soviet legacy, but the Karimov government made this project its own, incorporating inherited methods of control and instituting new tactics to prevent religious faith from ever challenging the government’s power.
Among the first targets of the government’s campaign were Muslim spiritual leaders who declined to limit their sermons and teachings to that which was dictated by state authorities. Other acts of “insubordination” varied from their opposition to the government’s ban on loudspeakers to call people to prayer, failure to praise President Karimov during religious services, and open discussion of the benefits of an Islamic state or the application of Islamic law, to their refusal to inform on congregation members and fellow religious leaders for security services. Government authorities inappropriately labeled these spiritual leaders “Wahabbis” and harassed or arrested people with close or only casual connection to them: members of their congregations, including those who had occasionally attended their services before their leaders fell out of favor, the imams’ students, mosque employees, and even their relatives ...
For the purpose of this report, the term “independent Muslims” refers to Muslims who do not defer to government policy in their religious practices, expression, or beliefs. Those in danger of being cast as “fundamentalists” do not share an identical set of beliefs and practices. The Uzbek government judges all Muslims who express their religious beliefs in any way that is outside the parameters it has set as suspect. Independence in this context does not necessarily mean breaking with traditional religious practice nor does it presume that independent Muslims make an active decision to challenge the will of the state. Uzbekistan’s campaign against independent Islam has targeted Muslims who exhibited no objective independence from the state, but who were simply deemed “too pious” by state agents.
Members of Hizb ut-Tahrir, like Muslims labeled “Wahhabi” by the state, are overwhelmingly self-defined Hanafi Sunnis, as are most Muslims in Uzbekistan, and not adherents of Wahabbism as it is understood in the Saudi Arabian context. Some so-called Wahhabis were thus labeled because they prayed five times a day - deemed by some local authorities in Uzbekistan’s provinces as evidence of excessive or suspicious piety - or overtly manifested their religious belief by growing a beard or wearing a headscarf that covered the face.”
104. In Amnesty International’s 2009 Report on Uzbekistan, published in May 2009, that organisation stated that it continued to receive persistent allegations of widespread torture and ill-treatment, stemming from persons suspected of being members of banned Islamic groups or having committed terrorist offences. The report stressed that the Uzbek authorities continued to actively seek the extradition of those persons from neighbouring countries, including Russia, and that most of those returned to Uzbekistan were held incommunicado, which increased their risk of being tortured or ill-treated.
105. On 1 May 2010 Amnesty International issued a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following:
“Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ...
Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ...
Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners.
According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other ill-treatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill-treatment remains the exception rather than the rule. ...
Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible.”
106. In January 2011 Human Rights Watch released its annual World Report 2010. The chapter entitled “Uzbekistan”, in so far as relevant, states:
“Uzbekistan’s human rights record remains abysmal, with no substantive improvement in 2010. Authorities continue to crackdown on civil society activists, opposition members, and independent journalists, and to persecute religious believers who worship outside strict state controls ...
Torture remains rampant in Uzbekistan. Detainees’ rights are violated at each stage of investigations and trials, despite habeas corpus amendments that went into effect in 2008. The Uzbek government has failed to meaningfully implement recommendations to combat torture that the United Nations special rapporteur made in 2003.
Suspects are not permitted access to lawyers, a critical safeguard against torture in pre-trial detention. Police use torture and other illegal means to coerce statements and confessions from detainees. Authorities routinely refuse to investigate defendants’ allegations of abuse ...
Although Uzbekistan’s constitution ensures freedom of religion, Uzbek authorities continued their unrelenting, multi-year campaign of arbitrary detention, arrest, and torture of Muslims who practice their faith outside state controls or belong to unregistered religious organizations. Over 100 were arrested or convicted in 2010 on charges related to religious extremism.
...
The Uzbek government’s cooperation with international institutions remains poor. It continues to deny access to all eight UN special procedures that have requested invitations, including those on torture and human rights defenders ...”
107. The chapter on Uzbekistan in the Amnesty International 2011 annual report, released in May of the same year, states, in so far as relevant, as follows:
“Reports of torture or other ill-treatment continued unabated. Dozens of members of minority religious and Islamic groups were given long prison terms after unfair trials ...
Torture and other ill-treatment
Despite assertions by the authorities that the practice of torture had significantly decreased, reports of torture or other ill-treatment of detainees and prisoners continued unabated. In most cases, the authorities failed to conduct prompt, thorough and impartial investigations into these allegations.
Several thousand people convicted of involvement with Islamist parties or Islamic movements banned in Uzbekistan, as well as government critics and political opponents, continued to serve long prison terms under conditions that amounted to cruel, inhuman and degrading treatment.
Uzbekistan again refused to allow the UN Special Rapporteur on torture to visit the country despite renewed requests.
...
Counter-terror and security
Among the scores detained as suspected members or sympathizers of the IMU, the IJU and Hizb-ut-Tahrir in 2009 were people who attended unregistered mosques, studied under independent imams, had travelled abroad, or were suspected of affiliation to banned Islamic groups. Many were believed to have been detained without charge or trial for lengthy periods. There were reports of torture and unfair trials.
...
Freedom of religion
The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion. Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control.”
108. Amnesty International’s report of 1 May 2010, entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, states as follows:
“... Amnesty International is concerned about reports of human rights violations carried out in the context of the stated aim of protecting national security and the fight against terrorism, following a number of reported attacks and killings throughout the country in 2009 ...
Amnesty International is concerned that the authorities’ response to attacks which occurred in May and August 2009 has been inconsistent with the obligations to respect the prohibitions against arbitrary detention and torture or other ill-treatment and the right to fair trial as enshrined in the ICCPR.
There were reported attacks in the Ferghana Valley and the capital Tashkent in May and August 2009 respectively; and a pro-government imam and a high-ranking police officer were killed in Tashkent in July 2009. The Islamic Jihad Union (IJU) claimed responsibility for the attacks in the Ferghana valley: attacks on a police station, a border checkpoint and a government office in Khanabad on 26 May 2009, as well as a suicide bombing at a police station in Andizhan the same day ...
These crimes were followed by reports of new waves of arbitrary detentions. Among the scores detained as suspected members or sympathizers of the three above-named organizations were men and women who attended unregistered mosques, studied under independent imams, had travelled or studied abroad, or had relatives who lived abroad or were suspected of affiliation to banned Islamist groups. Many are believed to have been detained without charge or trial for lengthy periods, allegedly subjected to torture and/ or sentenced after unfair trials.
In September 2009, at the start of the first trial of individuals charged in connection with the May attacks in the Ferghana Valley, human rights activists reported that the proceedings were closed to the public, despite earlier assurances by the President and the Prosecutor General that the trial would be both open and fair. However, independent observers were not given access to the court room. Relatives of some of the defendants told human rights activists that defence lawyers retained by them were not given access to the case materials and were denied access to the court room ...”
109. In its 2011 annual report released in May of the same year, Amnesty International states as follows:
“Counter-terror and security
Closed trials started in January of nearly 70 defendants charged in relation to attacks in the Ferghana Valley and the capital, Tashkent, in May and August 2009 and the killings of a pro-government imam and a high-ranking police officer in Tashkent in July 2009. The authorities blamed the Islamic Movement of Uzbekistan (IMU), the Islamic Jihad Union (IJU) and the Islamist Hizb-ut-Tahrir party, all banned in Uzbekistan, for the attacks and killings. Among the scores detained as suspected members or sympathizers of the IMU, the IJU and Hizb-ut-Tahrir in 2009 were people who attended unregistered mosques, studied under independent imams, had travelled abroad, or were suspected of affiliation to banned Islamic groups. Many were believed to have been detained without charge or trial for lengthy periods. There were reports of torture and unfair trials ...”
110. International Religious Freedom Report 2010, released in November 2010 by the United States Department of State, in its chapter on Uzbekistan reads, in so far as relevant, as follows:
“In summer 2009 two high-profile murders, one murder attempt, and one shoot-out took place in Tashkent that were alleged by the government to have religious links (for example, one target was the chief imam for the city of Tashkent). In the months that followed, as many as 200 persons were arrested allegedly in connection with these incidents; many were charged with membership in extremist religious organizations and attempting to overturn the constitutional order. Between January and April 2010 various courts in closed trials convicted at least 50 persons and imposed sentences ranging from suspended sentences up to 18 years in prison. There were unconfirmed reports that an additional 150 individuals were convicted in related trials. During the same time period, authorities opened hundreds more cases against alleged extremists (particularly those labeled "Wahhabists" and "jihadists") on charges unrelated to the killings. Human rights activists report that the families of several defendants accused authorities of using torture and coercion to obtain confessions, and many questioned whether due process guarantees were followed. ...”
111. The decision of the Committee of Ministers (CM/Del/Dec(2012)1136/19) adopted on 8 March 2012 at the 1136th meeting of the Ministers’ Deputies states as follows:
“The Deputies,
...
4. as regards the Iskandarov case, recalled that the violations of the Convention in this case were due to the applicant’s kidnapping by unknown persons, whom the Court found to be Russian State agents, and his forcible transfer to Tajikistan after his extradition had been refused by the Russian authorities;
5. noted with profound concern the indication by the Court that repeated incidents of this kind have recently taken place in respect of four other applicants whose cases are pending before the Court where it applied interim measures to prevent their extradition on account of the imminent risk of grave violations of the Convention faced by them;
6. took note of the Russian authorities’ position that this situation constitutes a source of great concern for them;
7. noted further that the Russian authorities are currently addressing these incidents and are committed to present the results of the follow-up given to them in Russia to the Court in the framework of its examination of the cases concerned and to the Committee with regard to the Iskandarov case;
8. urged the Russian authorities to continue to take all necessary steps to shade light on the circumstances of Mr. Iskandarov’s kidnapping and to ensure that similar incidents are not likely to occur in the future and to inform the Committee of Ministers thereof ...”
112. In its decision (CM/Del/Dec(2012)1144/18) adopted on 6 June 2012 at the 1144th meeting of the Ministers’ Deputies, the Committee of Ministers reiterated its concerns about repeated incidents of disappearance of applicants in respect of whom interim measures had been indicated by the Court and continued as follows:
“The Deputies
...
3. deplored the fact that, notwithstanding the serious concerns expressed in respect of such incidents by the President of the Court, the Committee of Ministers and by the Russian authorities themselves, they were informed that yet another applicant disappeared on 29 March 2012 in Moscow and shortly after found himself in custody in Tajikistan;
4. took note of the Russian authorities’ position according to which the investigation in the Iskandarov case is still ongoing and had not at present established the involvement of Russian State into the applicant’s kidnapping;
5. regretted however that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer, nor to establish the responsibility of any state agent ...”
VIOLATED_ARTICLES: 3
34
5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-57853
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF KEMMACHE v. FRANCE (No. 1 and No. 2) (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;R. Pekkanen
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") in two stages, first on 11 July and then on 12 October 1990, on each occasion within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in two applications (nos. 12325/86 and 14992/89) against the French Republic lodged with the Commission under Article 25 (art. 25) by a French national, Mr Michel Kemmache, on 1 August 1986 and 28 April 1989. The Court ordered the joinder of the two applications on 25 October 1990.
2. By judgment of 27 November 1991 ("the principal judgment"), the Court found a violation of Article 5 para. 3 and Article 6 para. 1 (art. 5-3, art. 6-1) of the Convention on the ground that the length of the applicant’s detention on remand and of the criminal proceedings instituted against him had exceeded a "reasonable time" (Series A no. 218, pp. 22-31, paras. 43-71 and point 1 of the operative provisions).
The only outstanding matter in the present case is the question of the application of Article 50 (art. 50). As regards the facts, reference should be made to paragraphs 9 to 36 of the above-mentioned judgment (ibid., pp. 8-20).
3. As the issue of the award of just satisfaction was not ready for decision, the criminal proceedings having not yet reached a conclusion, the Court, in the principal judgment, reserved the whole of this question. It invited the Government and the applicant to submit to it in writing, within three months of the conclusion of the relevant criminal proceedings, their observations and in particular to inform it of any agreement reached between them (p. 31, para. 74 and point 2 of the operative provisions).
4. The domestic proceedings conducted subsequent to the principal judgment included the following decisions:
(a) on 18 December 1991 the judgment of the Alpes-Maritimes Assize Court of 25 April 1991 sentencing Mr Kemmache to eleven years’ imprisonment and fining him 2,600,000 French francs was quashed;
(b) on 21 March 1992 the Var Assize Court, to which the case had been remitted, adopted a judgment sentencing the accused to nine years’ imprisonment and fining him 2,600,000 francs for aiding and abetting the importation and use on French territory of counterfeit foreign banknotes and the unlawful circulation of such notes within the customs area;
(c) on 3 February 1993 the applicant’s appeal on points of law was dismissed by the Court of Cassation.
Mention should also be made of various letters sent by the Registrar to the participants in the proceedings (30 January, 16 March and 24 June 1992), as well as letters received by him from a Government lawyer (23 January, 10 July and 7 August 1992), from the applicant’s lawyer (6 January and 5 June 1992, 21 January and 5 March 1993) and from the Secretary to the Commission (15 July 1992).
5. On 30 April 1993 the Registrar reminded the participants in the proceedings of the invitation in point 2 (b) of the operative provisions of the principal judgment (see paragraph 3 above).
The Government’s memorial reached him on 7 July 1993, the applicant’s memorial on 28 July and the observations of the Delegate of the Commission on 31 August.
6.


ITEMID: 001-82949
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OSHER AND OSHER v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 5. The first applicant was born in 1933. The second applicant was born in 1935. They live in Lynn, MA, the United States of America.
6. On an unspecified date the applicants sued the Social Security Office of the Oktyabrskiy District of Rostov-on-Don (“the social security office”) for pension arrears for the period from 1 February 1998 to 31 March 1999.
7. On 20 October 1999 the Oktyabrskiy District Court of Rostov-on-Don granted the applicants' claims. The court awarded 2,050.16 Russian roubles (RUB) to the first applicant, and RUB 1,862 to the second applicant.
8. On 26 November 1999 the Oktyabrskiy District Court ordered that the social security office pay RUB 1,025.08 to the first applicant and RUB 931 to the second applicant in respect of pension arrears for the period from 1 April 1999 to 1 November 1999.
9. On 26 January 2000 the Rostov Regional Court upheld the judgments of 20 October 1999 and 26 November 1999 on appeal. The judgments became enforceable.
10. On an unspecified date the President of the Rostov Regional Court lodged an application for supervisory-review of the judgments of 20 October and 26 November 1999, as upheld on 26 January 2000.
11. On 15 March 2001 the Presidium of the Rostov Regional Court found that the District Court had incorrectly applied domestic law, quashed the judgments of 20 October and 26 November 1999, as upheld on 26 January 2000, and dismissed the applicants' claims.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98447
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HUDAKOVA AND OTHERS v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicants' relative and another person were sued in the District Court in Trebišov. The plaintiffs in the case claimed that real property in respect of which the defendants were registered as owners belonged to the estate of the plaintiffs' predecessors.
6. On 5 October 1999 the District Court dismissed the action.
7. On 26 October 2000 the Regional Court in Košice quashed the firstinstance judgment.
8. On 9 October 2001 the applicants joined the proceedings as defendants.
9. On 18 September 2002 the District Court allowed the plaintiffs' action.
10. On 16 September 2003 the Regional Court upheld the decision of the District Court.
11. The applicants filed an appeal with the Supreme Court on points of law. They alleged that the Regional Court had not assessed the relevant facts correctly. In particular, the applicants challenged the conclusion that the predecessors of the plaintiffs had acquired the property in question pursuant to a document issued on 6 April 1948. In any event, they argued that the document was invalid as it contained incorrect information. Finally, the applicants alleged that the property in question had not been specified with sufficient certainty in the document.
12. On 27 July 2004 the Supreme Court publicly delivered a judgment dismissing the applicants' appeal on points of law. The judgment stated that the Supreme Court had examined the case without a hearing pursuant to Article 243a § 1 of the Code of Civil Procedure. It indicated that the plaintiffs had submitted observations on the applicants' appeal on points of law. In their observations the plaintiffs had alleged that their predecessors had acquired the property in question by virtue of the document of 6 April 1948 or, in any event, by prescription.
13. The Supreme Court upheld the conclusions reached by the Regional Court. It held that, despite several inconsistencies in the text of the administrative document of 6 April 1948, it was evident that the land in question had been allocated to the plaintiffs' predecessors. Similar administrative documents were to be presumed correct and binding to the extent that they had been delivered by a competent authority and had become final. The ordinary courts could not subsequently review the merits of such decisions. The fact that, according to the document, further action had been needed with a view to completing the allocation of the property to the persons concerned was irrelevant as regards the acquisition of the property by the plaintiffs' predecessors by virtue of that document. Such situation was in conformity with the law in force at that time.
14. The applicants filed a complaint with the Constitutional Court. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. They complained that the Supreme Court had had before it observations submitted by the plaintiffs which had not been communicated to the applicants. They further contended that the Regional Court had not taken into account the fact that the document in issue did not clearly indicate the persons to whom the land had been allocated and that the Supreme Court had not remedied that shortcoming.
15. On 2 February 2005 the Constitutional Court dismissed the applicants' complaint. It found that the parties had had ample opportunity to submit their arguments on the relevant issues before the ordinary courts at two levels. With reference to the judgment of the Supreme Court, the Constitutional Court held that the plaintiffs' observations in those proceedings had contained no new arguments. The reasons for the Supreme Court's judgment relied on facts and arguments which had been known to the applicants and on which they had been able to comment at an earlier stage of the proceedings. The Supreme Court had taken no evidence. It had addressed the relevant issues and had given sufficient reasons for the conclusions reached, which did not appear arbitrary. The fact that the applicants had not been able to comment on the plaintiffs' submissions to the Supreme Court, and that the latter had dismissed their appeal on points of law, was not contrary to the applicants' right to a fair hearing. The Constitutional Court further held that, in view of its above conclusions, the applicants' complaint regarding the alleged violation of their property rights as a result of the Supreme Court's decision was manifestly ill-founded.
16. Article 243(a) § 1 permits the court of cassation to dispense with a hearing, inter alia, where an appeal on points of law is based on the argument that the lower court had incorrectly assessed the case. Paragraph 2 of Article 243(a) provides that no evidence is taken in cassation proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84464
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FARSKY v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Milan Farský, is a Czech national who was born in 1953 and lives in Teplice. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked for a State enterprise. In 1986 he submitted a proposal for improvement which was subsequently adopted and used by the enterprise. However, the applicant’s copyright was never officially approved and royalties were never paid to him.
On 19 April 1990 the applicant filed an action with the Ostrava District Court (okresní soud) against the enterprise, claiming compensation for the use of his improvement.
On an unspecified date, the applicant withdrew his action, the enterprise having promised to compensate him.
As the enterprise had not fulfilled its promise, the applicant brought a new action on 26 June 1990.
On 3 March 1995 the Prague High Court (Vrchní soud) referred the case to the Teplice District Court which in an interim judgment of 26 September 2000 accepted the legitimacy of the applicant’s claim.
On 29 June 2001 the Ústí nad Labem Regional Court (krajský soud) quashed this judgment and remitted the case to the District Court which, on 2 April 2002, again declared the applicant’s claim justified.
On 10 April 2003 the Regional Court upheld the District Court’s judgment which became final on 25 May 2003.
On 22 July 2003 the applicant quantified his claim for compensation.
In a judgment of 14 December 2004 the District Court partly granted the applicant’s action. The defendant filed an appeal but withdrew it on 1 April 2005. The Regional Court stayed the proceedings on 29 April 2005.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-84171
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KOZUBEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Anna Kozubek, was a Polish national who was born in 1917, lived in Cracow and died on 18 January 2003. She was represented before the Court by Mr Krzysztof Tor, a lawyer practising in Krakow. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1954 the applicant inherited a plot of land located in Radość, Warsaw. In the 1940s and 1950s the local community made many investments to turn the area into a district park. On 31 May 1991 she applied to the Warsaw Praga District Office (Urząd Dzielnicy Praga Południe) for information concerning construction on her plot. In reply, she was informed that according to the local master plan of 1982 (plan zagospodarowania przestrzennego) her plot was situated in an area designated for housing construction on forest grounds and had a forestry zone status. On 26 October 1992 the applicant lodged an application for a construction permit. Her application was dismissed on 12 November 1992.
On 30 December 1992, upon the applicant’s appeal, this decision was quashed. On the same date the Mayor of Warsaw Praga (Burmistrz Dzielnicy Gminy Praga-Południe) stayed the proceedings concerning construction on the applicant’s plot pending the termination of proceedings relating to divesting the area of its forestry zone status. According to the new local master plan of 28 September 1992, the applicant’s plot was situated in an area designated for housing construction and community green spaces. It was possible to construct a house on the plot; however, only after the plot had been divested of its forestry zone status. In addition the surface area of the house could not exceed 15% of the total area of the plot.
In 1992 the Municipality began work on the plot with a view to preserving its district park function. On 29 October 1992 the applicant requested the Municipality to discontinue the work on her property. On 9 November 1992 she was informed that the Municipality was considering buying the plots situated in the park area.
On 30 April 1993 the applicant lodged a complaint with the Warsaw Governor (Wojewoda Warszawski) alleging inactivity on the part of the first-instance authority (as regards the proceedings concerning the divesting of the forestry zone status). On 28 May 1993 the applicant applied to the Warsaw Development Planning Office (Biuro Planowania Rozwoju Warszawy) and asked that her plot be divested of its forestry zone status. On 16 March 1994 the applicant asked for the proceedings to be expedited.
On 20 December 1994 the Municipality recommended granting the applicant’s application: that the plot in question be divested of its forestry zone status. On 5 May 1995 the applicant was informed that the Governor’s office had not supported the Municipality’s recommendation.
Upon the applicant’s further enquiries, on 11 July 1995 the Warsaw Governor informed her that one of the reasons for rejecting the recommendation was that a group of 500 people had protested against any construction being carried out on the applicant’s plot and the adjacent plots.
On 26 October 1995 the Municipality lodged a motion with the Minister of Environmental Protection (Minister Ochrony Środowiska, Zasobów Naturalnych i Leśnictwa) concerning the alteration of the use of the applicant’s plot.
On 23 February 1996 an analysis of the legal and factual circumstances of the applicant’s and other owners’ cases was prepared.
On 8 April 1996 the Mayor of Warsaw Wawer (Burmistrz Gminy Warszawa Wawer) informed the applicant that according to the provisions of the Act of 1980 on environmental protection, the competent authority to buy the applicant’s plot was the Warsaw District Office (Urząd Rejonowy). Consequently, on 26 April 1996 the applicant’s case was transferred to the Warsaw District Office.
On 10 June 1996 the applicant’s daughter asked the Warsaw District Office to be allowed to use the plot for construction purposes.
On 22 August 1996 the District Office considered that the 1980 Act did not apply and therefore it transferred the case back to the Municipal Office.
On 16 September, 23 September and 16 December 1996, 5 May and 3 June 1997 the applicant applied to the Mayor of Warsaw asking for a speedy conclusion to her case. She further requested the Mayor to buy the plot from her. During the whole period, the applicant’s plot was used as a park.
On 21 April 1997 the applicant’s daughter notified the Warsaw Wawer Municipality that she wished to put up temporary fencing around her plot. On 1 July 1997 the applicant was informed that her application to alter the use of the plot had been rejected.
On 3 November 1997 the applicant asked the Municipality to grant a planning permission (decyzja o warunkach zabudowy i zagospodarowania terenu). On 23 December 1997 the Mayor gave a decision authorising the applicant to construct a house and a sanitary tank on her plot. The Mayor further held that it was necessary to obtain permission from the Minister of Environmental Protection in order to alter the use of the applicant’s plot as specified in the local master plan that is, from a forestry zone to a residential and construction zone.
On 8 January 1998 the applicant applied to the Mayor of Warsaw requesting the commencement of the procedure for the alteration of the use of her plot in the local master plan.
On 19 January 1998 the applicant was informed that a certain group “Friends of Radość Association” (Stowarzyszenie miłośników Radości) (“the Association”) had appealed against the grant of planning permission of 23 December 1997. On 27 January 1998 the Warsaw Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) upheld the planning permission. On 14 March 1998 the Association lodged a complaint with the Supreme Administrative Court.
On 25 March 1998 the applicant filed a complaint under Article 37 § 1 of the Code of Administrative Proceedings with the Self-Government Board of Appeal alleging inactivity on the part of the Warsaw - Wawer Municipality as regards the proceedings to alter the use of her plot. On 20 April 1998 the Municipality explained that on 14 April 1998 the applicant’s case had been transferred to the Minister of Environmental Protection and therefore the Municipality was no longer competent to deal with the applicant’s case.
On 29 April 1998 the Board of Appeal transferred the applicant’s case to the Municipality. The Board further held that the applicant’s complaint could not be considered as a complaint under Article 37 of the Code of Administrative Procedure, since the Municipality was no longer competent to issue a decision in the applicant’s case.
On 29 June 1998 the applicant constructed a fence around her plot. The following day the fence was demolished by unknown persons. On 13 August 1998 the Warsaw Praga District Prosecutor discontinued the criminal proceedings, as it had been impossible to find the culprits.
Meanwhile, the Warsaw Wawer Mayor sent letters to the Ministry of Environmental Protection asking for examination of the owners’ motions concerning construction on the forest plots in Radosc. This was to no avail as the Minister sent the motions back to the Municipality.
On 30 May 1999 the applicant sent a letter to the Mayor of Warsaw – Wawer Municipality asking for an explanation for the delay.
On 14 July 1999 the applicant lodged a complaint with the Supreme Administrative Court alleging inactivity on the part of the Warsaw – Wawer Mayor. She claimed that despite the final planning permission of 23 December 1997 and her application of 8 January 1998 the Municipality had failed to apply to the Governor to alter the use of her plot as specified in the local master plan. On 13 August 1999 the Supreme Administrative Court rejected the applicant’s complaint. The court held that the law in force did not oblige the Municipality to apply to the Governor, and therefore her complaint should be rejected.
On 30 July 1999 the Municipality Council adopted a resolution and held that the so-called park in Radosc should be designated as a district park in the future local master plan. The Municipality Board was ordered to institute proceedings in order to buy out the plots from their owners.
On 20 September 1999 an expert Z.J submitted an evaluation report on the value of the applicant’s plot and the plots of two other owners. Subsequently the Municipality began negotiating the price with the applicant and other owners of the plots of land in question.
On 19 April 2000 the Supreme Administrative Court dismissed the complaint of the Association against the decision of the local self-government board of 27 January 1998.
On 4 July 2000 the applicant was able to sell the plot in question for 534,600 zlotys [approx. 141,000 euros]. The seller and the buyer declared in the notarial deed that the price represented the market price.
Meanwhile, on 5 November 1999 the applicant lodged a civil action with the Warsaw Regional Court against the Warsaw Wawer Municipality asking for payment for the use of the plot without a contractual basis. On 9 November 2000 she withdrew her action. Consequently, the proceedings were discontinued on 15 November 2000.
The provisions relating to the procedure for divesting the applicant’s plot of its protective forest status were included in the law of 26 March 1982 on protection of agricultural and forest grounds (ustawa o ochronie gruntów rolnych i lesnych). This law was repealed by the new law of 3 February 1995 which entered into force on 25 March 1995.


ITEMID: 001-23354
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: LEE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Stephen Lee, is a United Kingdom national, who was born in 1970 and he lives in Windsor. He is represented before the Court by Mr J. Mackenzie, a solicitor practising in Henley-on-Thames.
The facts of the case, as submitted by the parties, may be summarised as follows.
At the relevant time, the applicant was a Lance Corporal in the British Army. On 31 May 1998 he was arrested by the civilian police who alleged that he had been drunk and disorderly. He was taken by the police to his army barracks and handed over to the military authorities.
On 10 June 1998 he appeared before his commanding officer and was charged with drunkenness pursuant to section 43(1) of the Army Act 1955 (an offence which carried a maximum potential sentence of two years’ imprisonment).
He subsequently appeared before that officer on 28 and 30 July 1998 and, on the latter date, he elected to be tried by court-martial as opposed to summary trial by his commanding officer. The commanding officer had the power to award a maximum of 28 days’ imprisonment on summary trial, although the Government submit that the commanding officer’s sentence following a conviction for drunkenness would generally have been limited to a fine, a reprimand, “a minor punishment” or a reduction to the ranks.
Having opted for trial by court-martial, on 30 July 1998 the applicant’s case was referred to a higher authority and, in turn, on 5 August 1998 to the Army Prosecuting Authority. On 20 August 1998 this authority directed the applicant’s trial by district court-martial.
In October 1998 the district court-martial was fixed to begin in January 1999. This trial date was postponed pending the outcome of an application by the applicant for leave to take judicial review proceedings concerning his legal aid. The judicial review application was heard in March 1999 and the court-martial was fixed for 26 July 1999, later moved to 28 July 1999 at the applicant’s request. The court-martial hearing was again re-fixed (to allow a full week for the hearing) for 23 August 1999. The applicant was legally represented.
On that date and at the outset of the proceedings, the applicant applied for a stay of the proceedings claiming that the conduct of the prosecuting authorities amounted to an abuse of process. Having heard evidence over 3 days, on 25 August 1999 the Judge Advocate stayed the proceedings as an abuse of process. As to the meaning of abuse of process, he stated that:
“It is now clear law that the courts have a power to stay proceedings where the continuance of those proceedings against a defendant constitutes an abuse of the court’s powers... Put shortly, the court has a general and inherent power to protect its process from abuse. This power must include a power to safeguard an accused person from oppression or prejudice ...The power to stay proceedings for an abuse of process has been said to include a power to safeguard an accused person from oppression or prejudice (Connelly v. DPP), and has been described as a formidable safeguard, developed by the common law, to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so (Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, PC). An abuse of process has been defined as “something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding” (Hui Chi-Ming v. R. [1992] 1 A.C. 34, PC).”
The Judge Advocate found, in the first place, that the failure to disclose to the applicant video evidence of the incident leading to the applicant’s arrest, when he appeared before his commanding officer on 28 July 1999, was a breach of the applicable rules of procedure of such magnitude as to render the proceedings void. Secondly, he found that, on the evidence, the applicant’s election to be tried by court-martial had not been a free and valid one. As regards these two matters the Judge Advocate concluded:
“True, there has been no illegality in the sense of a breach of the law, but there has been a very fundamental breach of the principles under which criminal justice is dispensed. True, [the applicant] has not had any other or more serious charge preferred against him, but he has had a long and no doubt anxious wait, undoubted expense and, more significantly, I could not guarantee that the court which has been ordered to try him would not punish him more severely than the [commanding officer] would have done if he was convicted.
Furthermore, I cannot ignore the collected impact of the conduct of [the commanding and other officers], wittingly or unwittingly, in pressurising [the applicant] to accept the [commanding officer’s] award and by inference his guilt. For many years now the courts have fought strenuously to safeguard accused persons from being pressurised into pleading guilty and have rigorously excluded evidence obtained as a result of such pressure. These courts should not countenance service personnel being sent for trial as a result of such pressure. To do so would be to allow their process to be abused. It is for these reasons that I hold that the continuance of the proceedings against [the applicant] would be an abuse of process.”
Thirdly, the Judge Advocate found, as regards the fact that the prosecution had taken and served on the defence a statement from the applicant’s defending officer:
“I accept that ... what happened in this case was no breach of legal privilege, if indeed, legal privilege attaches to a defending officer... I accept that there was no substantial prejudice to the defence case. I accept that no one in the Army Prosecuting Authority proper knew that [he] was the defending officer until much later... I accept that identity would not have been an issue in the case. None of these things can have lessened the perception of [the applicant] as to the chances of justice from the military system when he became aware that his defending officer was to be called as a prosecution witness against him. It was an irregularity of such magnitude that in itself it justifies me in holding that the continuation of these proceedings would be an abuse of the process of this court.”
The Judge Advocate went on to recommend that the applicant’s legal aid contributions and any other costs associated with the proceedings should be reimbursed to him.
On 13 December 1999 the applicant instituted proceedings claiming damages against the civilian police and the Ministry of Defence for matters arising out of his arrest by the police and the conduct of the proceedings against him by the military authorities. The respective defences were filed in January and February 2000. The proceedings against the police were later settled by the payment to the applicant of GBP 7,500 in damages and costs. The current position as regards the proceedings against the Ministry of Defence is not known.
All criminal courts, including courts-martial, have a wide common law jurisdiction to stay proceedings on the grounds of abuse of process. The application to stay proceedings is in the nature of a “plea in bar”, the more conventional “pleas in bar” being autrefois convict or autrefois acquit. A “plea in bar” operates to prevent a case proceeding to trial and, if raised, is ordinarily dealt with before the accused enters a plea to the charge.
The ability of a trial judge to stay a criminal prosecution was first confirmed by the House of Lords in the case of Connelly v. Director of Public Prosecutions [1964] A.C. 1254. Lord Reid acknowledged the ability of a criminal court “to prevent a trial from taking place” in the exercise of its “residual discretion to prevent anything which savours of abuse of process” (at p. 1296). In the case of Director of Public Prosecutions v. Humphreys [1977] A.C. 1, Lord Salmon considered this discretion to be of “great constitutional importance” and a power which “should be jealously preserved”.
Lord Woolf defined the discretion to stay proceedings as an abuse of process, in the case of Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, as:
“... a formidable safeguard to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so”.
In Hui Chi-Ming v. R [1992] 1 A.C. 34, Lord Lowry described an abuse of process as:
“... something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding”.
The broad basis of this jurisdiction was confirmed by the House of Lords in R v. Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 A.C. 42, where it was held that proceedings may be stayed not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.
The case law was summarised by the Court of Appeal in R. v. Beckford [1996] 1 Cr.App.R. 94 (see Lord Justice Neill, at p. 100G-101A):
“The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities:
(a) cases where the court concludes that the defendant cannot receive a fair trial;
(b) cases where the court concludes that it would be unfair for the defendant to be tried”.
Matters considered to constitute an abuse of process include:
– unjustifiable delay which results in the defendant suffering serious prejudice to the extent that no fair trial can be held;
– the trial of a defendant after extensive and prejudicial pre-trial publicity;
– the trial of a defendant after the loss or destruction of relevant material by the prosecution;
– where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place because the prosecution have been guilty of investigative impropriety; and
– where the prosecution have otherwise been guilty of manipulation or misuse of the process of the court.
There is no right for the prosecution to appeal against an order for a stay of a Crown Court trial or court-martial proceedings on the ground of abuse of process. The intention behind such a stay is that there should not be a trial in the future.
There is no possibility of lifting a stay where the stay has been granted on the grounds that, due to the unconscionable conduct of the prosecuting authorities and even though the accused could receive a fair trial, it would nonetheless be unfair for the accused to be tried. Such a case could not be re-opened since it would always be an abuse of process to try the accused.
The applicant does not dispute the Government’s submission that there are no known cases where a stay made on the grounds of abuse of process has been lifted to allow a prosecution to continue or where the prosecution has even applied for such a stay to be lifted. In R. v. Central Criminal Court ex p. Randle [1991] 1 WLR 1087, Lord Justice Watkins commented that a decision on an application to stay on grounds of abuse of process determines:
“... whether there ever should be a trial ... [A] stay on grounds of abuse of process contemplates that there never will be a trial ... It matters not that there are circumstances in which a stay on grounds of abuse of process might be revoked or lifted: the crucial point is that such a stay -- a direction that there shall be no trial -- is intended to be final.”