ITEMID: 001-99798
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ABDULAZHON ISAKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (in case of extradition to Uzbekistan);Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 13+3
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1963 and is currently detained in Tyumen.
7. The facts of the case, which were partially disputed by the parties, may be summarised as follows.
8. In 1981 the applicant, who was born and lived in Uzbekistan, received an Uzbek passport. In 1989 he moved from Uzbekistan to Russia. From 1989 to 1995 the applicant resided on Shishkova Street, Tyumen, Russia.
9. It appears that in June 1995 the applicant officially informed the Uzbek authorities that he had changed his permanent residency from Uzbekistan to Russia. From 1995 to 2001 the applicant was officially registered as residing in Chikcha, the Tyumen Region. Since 13 March 2001 the applicant has been officially registered as residing on Doronina Street in Tyumen.
10. In December 2000 the applicant exchanged his USSR passport for a Russian passport in Department of the Interior no. 6 in the Tsentralniy district of Tyumen (ГОМ-6 УВД Центрального района Тюмени).
11. On 13 July 2005 the Passport and Visa Service of the Tyumen Regional Department of the Interior (the UVD) examined the validity of the applicant's Russian passport and stated that the document had been issued unlawfully, that it should be confiscated as invalid and that the applicant was not a Russian citizen.
12. On 14 March 2008 the Department of the Federal Migration Service of the Tyumen Region (the FMS) informed the Tyumen regional prosecutor's office that “... in 2005 the issuance of the Russian passport to A.M. Isakov was declared unsubstantiated as he was not a Russian citizen ... the passport was declared invalid and it was supposed to be confiscated. However, as it has been impossible to establish A.M. Isakov's whereabouts, at the time of writing the passport has not been confiscated...”
13. On 15 August 2008 (the document is also dated 15 August 2005) the applicant complained to the Tsentralniy district court of Tyumen and requested that the decision of 13 July 2005 be overruled as unlawful. The applicant stated, among other things, that he was a Russian citizen and that he had not been informed about the decision concerning the invalidity of his passport until the hearing conducted on 27 March 2008 by the Tsentralniy district court on the issue of his detention pending extradition to Uzbekistan (see part 3,-“Extradition proceedings”, below).
14. On 22 August 2008 the Tsentralniy district court refused to examine the applicant's complaint. The applicant appealed and on 29 September 2008 the Tyumen regional court overruled that decision and remitted the case for a fresh examination.
15. On 15 October 2008 the Tsentralniy district court again refused to examine the applicant's complaint.
16. The applicant lodged a civil claim challenging the validity of the decision of 13 July 2005. On 25 February 2009 the Tsentralniy district court rejected the claim, stating that the applicant had failed to substantiate his allegation that he had been a legal resident of Russia since 6 February 1992 and that therefore he could not be a Russian citizen.
17. On 20 April 2009 this decision was upheld on appeal by the Tyumen Regional Court.
18. On 12 June 1998 the Namangan regional prosecutor's office of Uzbekistan (the Namangan prosecutor's office) opened a criminal case against the applicant under Article 159 § 4 of the Uzbek Criminal Code (attempt to violently overthrow the State's constitutional order). The applicant was accused of “... actively participating in the subversive activities of an extremist movement ... by conducting the holy war “jihad” ... to create an Islamic state”.
19. On 29 June 1998 the applicant was charged in absentia and his name was put on the wanted list.
20. On 20 October 2003 the Namangan prosecutor's office brought additional charges against the applicant under Article 242 of the Uzbek Criminal Code (organisation of a criminal group and subversive activities). The applicant was charged in absentia. The decision also stated that the applicant should be arrested and his name should remain on the wanted list. The Uzbek courts did not issue orders for his arrest.
21. On 6 March 2008 the applicant was arrested by officers of the Tyumen town department of the interior (the GUVD) on unknown grounds.
22. On 7 March 2008 the applicant was placed in FBU/IZ-72/1 (“the detention centre”). The decision to arrest the applicant and detain him in the detention centre was not authorised by a court.
23. On 27 March 2008 the Tsentralniy district court of Tyumen authorised the applicant's detention in view of extradition. The decision did not provide any time-limits for his detention.
24. On 7 April 2008 the Uzbek Prosecutor General's office officially requested the Russian Prosecutor General's office to extradite the applicant to Uzbekistan to be prosecuted as charged by the local authorities.
25. On 12 August 2008 the Russian Prosecutor General's office decided to extradite the applicant.
26. On 19 August 2008 the applicant was informed about the extradition order.
27. On 25 August 2008 (in the document the date was also stated as 25 August 2006) the applicant appealed against the extradition order to the Tyumen regional court. He stated, inter alia, that he was sought by the Uzbek authorities for alleged commission of political crimes and participation in an extremist religious movement. The applicant denied the accusations and stated that under Russian law the alleged religious activity was not prohibited.
28. On 30 September 2008 the Tyumen regional court rejected the applicant's complaint, stating, inter alia, the following:
“... in their extradition request the Uzbek authorities guarantee that the applicant will be prosecuted only for the crimes his extradition is requested for and that after the trial and the completion of his sentence he will be able to freely leave Uzbekistan and that he won't be extradited to a third country without the consent of the Russian Federation.
In addition, the Uzbek authorities guarantee that the applicant will not be subjected to torture in Uzbekistan and his constitutional rights will be respected....
... There are no circumstances precluding the applicant's extradition to the law-enforcement agencies of Uzbekistan or any grounds for its suspension ...
... from the case file it follows that the Russian Ministry of Foreign Affairs and the Federal Security Service possess no information either concerning the applicant's persecution in Uzbekistan on political grounds or any other data which would preclude his extradition to Uzbekistan ...”
29. On 5 October 2008 the applicant appealed against this decision to the Supreme Court of the Russian Federation (the Supreme Court). The applicant stated, inter alia, that the Tyumen regional court had ignored his allegations of a risk of ill-treatment in Uzbekistan; that his detention from 6 March to 27 March 2008 had not been authorised by a court; that the court order of 27 March 2008 authorising his detention pending extradition had not provided any time-limits; that the detention had been excessively long and its extensions had not been authorised by court orders.
30. On 10 November 2008 the European Court of Human Rights granted the applicant's request for the application of interim measures under Rule 39 of the Rules of Court to suspend his extradition to Uzbekistan.
31. On 22 December 2008 the Supreme Court upheld the decision of the Tyumen regional court and the extradition order. The ruling, inter alia, referred to the assurances provided by the Uzbek authorities that “... the Republic of Uzbekistan guarantees that A.M. Isakov will not be subjected to torture and that his constitutional rights in Uzbekistan will be protected”. The Supreme Court did not examine any of the applicant's complaints concerning the lawfulness and the length of his detention pending extradition.
32. On 5 May 2009 the applicant applied to the Tyumen FMS requesting asylum, stating that the extradition order against him had been finalised, that the authorities had declared his Russian citizenship invalid and that he was being persecuted in Uzbekistan for his religious beliefs.
33. On 10 September 2009 the Tyumen FMS informed the applicant that on 7 September 2009 they had rejected his asylum request as it had been motivated by “...fear of lawful prosecution for a committed crime”.
34. On 5 October 2009 the applicant appealed against that decision to the Russia FMS.
35. On 8 December 2009 the Russia FMS dismissed the applicant's appeal and upheld the decision of the Tyumen FMS.
36. On 21 January 2010 the applicant appealed against the decision of the Russia FMS to the Basmanniy district court of Moscow. The proceedings are still pending.
37. At the beginning of March 2010 the applicant applied to the Tyumen FMS with a request for temporary asylum.
38. On 17 March 2010 the Tyumen FMS granted the applicant temporary asylum in Russia for one year, stating, inter alia, that the measure had been applied in view of the examination of the applicant's case by the Court.
39. On 23 June 2008 the applicant complained about his detention to the head of the detention centre and requested to be released. He stated that his detention was unlawful as it had been neither authorised nor extended by court orders.
40. On 23 or 24 June 2008 the head of the detention centre refused to release the applicant and informed him that under Article 109 of the Criminal Procedure Code his detention pending extradition “would not exceed 18 months”.
41. On 14 March 2008 the applicant complained to the Kalininskiy district court of Tyumen that his detention pending extradition was unlawful and requested to be released.
42. On 27 March 2008 the Tsentralniy district court of Tyumen decided to detain the applicant in view of his extradition to Uzbekistan. In its decision the court referred to Article 466 § 1 of the Russian Criminal Procedure Code (“the Criminal Procedure Code”). The decision did not provide time-limits for the detention.
43. On 1 April 2008 the Kalininskiy district court rejected the complaint, stating that the decision to detain the applicant did not contravene the regulations concerning detention on remand (Article 108 of the Criminal Procedure Code) and that it had already been authorised on 27 March 2008 by the Tsentralniy district court. The applicant appealed against this decision, stating, inter alia, that between 6 and to 27 March 2008 he had been detained without a court order.
44. On 6 May 2008 (in the submitted documents the date was also referred to as 15 April 2008) the Tyumen regional court dismissed his appeal. The court did not examine the issue of the lawfulness of the applicant's detention between 6 and 27 March 2008; it rejected the appeal for the same reasons as the ones stated in the decision of 1 April 2008.
45. On 28 August 2008 the applicant again lodged a complaint with the Kalininskiy district court challenging the lawfulness of his detention pending extradition. He pointed out that it had been more than five months since his arrest, but his detention had not been extended by domestic courts, in violation of Article 109 of the Criminal Procedure Code. The applicant further stated that his complaint to the head of the detention centre of 23 June 2008 had been rejected without a proper legal basis and requested the court to overrule the decision of the head of the detention centre.
46. On 4 September 2008 the Kalininskiy district court rejected the applicant's complaint, stating that the applicant should have appealed against the decision of 23 June 2008 through civil proceedings. On the same date the applicant appealed against the court's decision to the Tyumen regional court.
47. On 30 September 2008 the Tyumen regional court rejected the applicant's appeal and upheld the decision of the district court.
48. On 5 October 2008, in his appeal against the extradition order, the applicant lodged a detailed complaint with the Supreme Court challenging the lawfulness and the length of his detention pending extradition (see paragraph 29 above). In its decision of 22 December 2008 the Supreme Court did not examine the applicant's complaints concerning the lawfulness and length of his detention pending extradition (see paragraph 31 above).
49. On 18 November 2008 the applicant again complained to the Kalininskiy district court stating that for more than eight months his detention pending extradition had not been extended by court orders.
50. On 20 November 2008 the Kalininskiy district court refused to examine the applicant's complaint stating that the applicant had failed to specify “... whether any criminal proceedings had been pending against him in Tyumen and by which local authority they had been initiated...”.
51. On 27 January 2009 the applicant again complained to the Kalininskiy district court, stating that for more than ten months his detention had not been extended by court orders.
52. On 6 February 2009 the district court left the applicant's complaint without examination as he was supposed to use a different procedure to appeal against the alleged unlawfulness of his detention.
53. On 3 August 2009 that decision was upheld by the Tyumen regional court through the supervisory review procedure.
54. On 6 September 2009 the maximum eighteen-month detention period laid down in Article 109 of the Russian Code of Criminal Procedure expired, but the applicant remained in detention.
55. On 17 December 2009 the applicant again complained to the Kalininskiy district court that his detention pending extradition was unlawful and requested to be released.
56. On 14 January 2010 the district court refused to order the applicant's release and stated that his detention was warranted by the application of the interim measure by the Court. The applicant appealed against this decision to the Tyumen regional court.
57. On 16 February 2010 the Tyumen regional court held that the applicant's detention had exceeded the maximum detention period prescribed by the Code of Criminal Procedure and ordered his release.
58. On 5 March 2010 the applicant was released from detention.
59. The Government disagreed with the statement of facts as presented by the applicant and, without referring to any specific documents and/or submitting copies of them, they stated the following.
60. According to the Government's submissions, the Uzbek Prosecutor General's office provided the Russian authorities with the following assurances; “... the applicant will be prosecuted only for the crimes listed in the extradition request; after the trial and the completion of sentence he will be able to leave Uzbekistan without restraint. The applicant will not be deported or extradited to a third country without the consent of the Russian Federation”.
61. They further stated that the sanctions for the crimes with which the applicant had been charged by the Uzbek authorities did not extend to the death penalty.
62. The Russian Prosecutor General's office requested that the Russian Ministry of Foreign Affairs and the Russian Federal Security Service provide information concerning the applicant's alleged persecution in Uzbekistan. According to their replies, there were no circumstances preventing the applicant's extradition to Uzbekistan; no information had been received confirming that the persecution had been politically motivated.
63. During the examination of the applicant's allegations “... the Russian courts of the first and the second instances noted that the Uzbek authorities had guaranteed that the applicant would not be subjected to unlawful treatment in Uzbekistan and that his constitutional rights would be respected. In addition, the Russian courts noted the absence in the case file of any information confirming the applicant's persecution by the lawenforcement bodies of Uzbekistan on account of his political beliefs ...”
64. The Government further stated that “... the authorities of the Russian Federation are informing [the Court] that the applicant's detention between 6 and 27 March 2008 was not based on a court order. However, the applicant was arrested on 6 March 2008 and detained in SIZO-1 in Tyumen as a person who had been put on the international wanted list ... as a result of the decision to arrest him which had been taken by the Namangan prosecutor's office on 29 June 1998. In accordance with Article 466 of the Russian Criminal Procedure Code, upon receipt of the extradition request and [after] the subsequent checks [had been carried out], on 27 March 2008... the Tsentralniy district court of Tyumen ordered the applicant's detention ...”
65. On 25 March 2008 the Tyumen regional prosecutor's office requested the Tsentralniy district court to order the applicant's detention in the view of his extradition to Uzbekistan.
66. On 27 March 2008 the district court granted the request and ordered the applicant's detention in accordance with Articles 97-101, 108 and 466 § 1 of the Criminal Procedure Code. The applicant was informed about his right to appeal against this decision to the Tyumen regional court. The applicant exercised this right and appealed against the detention order.
67. On 15 April 2008 the Tyumen regional court dismissed the applicant's appeal and upheld the detention order.
68. 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.”
69. Article 16 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows:
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”
70. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2).
71. 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. A person may also be arrested in the absence of such request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61).
72. 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).
73. Chapter 13 of the Russian Code of Criminal Procedure (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), which include, in particular, 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). The 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).
74. 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 court should examine the complaints within five days from its receipt.
75. 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 the established procedure (Article 466 § 1). A person who has been granted asylum in Russia because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 § 1 (2)).
76. An extradition decision made by the Prosecutor General may be challenged before a court. 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 the relevant international and domestic law (Article 463 §§ 1 and 6).
77. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his/her rights or freedoms, hindering the realisation of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the realisation of the rights and freedoms in question (Article 258 § 1).
78. On 15 July 2003 the Constitutional Court issued decision no. 292-O on the complaint of Mr Khudoyorov about the ex post facto extension of his “detention during trial” by the Vladimir Regional Court's decision. It held as follows:
“Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may... upon the expiry of six months after the case was sent to it, extend the defendant's detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending the defendant's detention on remand once the previously authorised time-limit has expired, in which event the person is detained for a period without a judicial decision. Nor do other rules of criminal procedure provide for such a possibility. Moreover, Articles 10 § 2 and 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator... to immediately release anyone who is unlawfully held in custody beyond the time-limit established in the Code. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention... which is an integral part of the legal system of the Russian Federation, pursuant to Article 15 § 4 of the Russian Constitution...”
79. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its constant caselaw that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
80. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without respecting the procedure established in the CCP, or in excess of the time-limits fixed therein.
81. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition.
82. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction.
83. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure.
84. 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.”
85. 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)).
86. 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, 2)).
87. 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).
88. 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).
89. The UN General Assembly resolution 62/148 of 18 December 2007 “Torture and other cruel, inhuman or degrading treatment or punishment” (UN Doc.:A/RES/62/148) reads as follows:
“The General Assembly...
12. Urges States not to expel, return ('refouler'), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement...”
90. In his interim report submitted in accordance with Assembly resolution 59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions:
“51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return.
52. The Special Rapporteur calls on Governments to observe the principle of non-refoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognized as refugees.”
91. Specifically referring to the situation of torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the UN Special Rapporteur on Torture has 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... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. 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.”
92. Further referring to the situation of torture in Uzbekistan, the UN Special Rapporteur on Torture has 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...
743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted.
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...”
93. The UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows:
22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases.
23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that 'unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel'. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling
'...the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.'
24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and nonderogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that:
'in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.'”
94. United States Department of State, 2009 Country Reports on Human Rights Practices - Uzbekistan, 11 March 2010.
“C. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Torture and abuse were common in prisons, pretrial facilities, and local police and security service precincts. Prisoners were subjected to extreme temperatures. Observers reported several cases of medical abuse, and one known person remained in forced psychiatric treatment....
Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme Islamist political sympathies, notably pretrial detainees who were alleged members of banned extremist political organizations Hizb ut-Tahrir (HT) or Nur. Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government. Two human rights defenders who were arrested reported beatings in pretrial detention facilities.
There were reports of politically motivated medical abuse. Victims could request through legal counsel that their cases be reviewed by an expert medical board. In practice, however, such bodies generally supported the decisions of law enforcement authorities....
Prison and Detention Centre Conditions
Prison conditions remained poor and in some cases life threatening. There continued to be reports of severe abuse, overcrowding, and shortages of food and medicine. Tuberculosis and hepatitis were endemic in the prisons, making even short periods of incarceration potentially life-threatening. Family members frequently reported that officials stole food and medicine that were intended for prisoners.
There were reports that authorities did not release prisoners, especially those convicted of religious extremism, at the end of their terms. Instead, prison authorities contrived to extend inmates' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society. These accusations were not subject to judicial review.
95. The European Committee for the Prevention of Torture's (the CPT) 15th General Report of 22 September 2005 on their activities covering the period from 1 August 2004 to 31 July 2005 expressed concern about reliance on diplomatic assurances in light of the absolute prohibition against torture:
“38. Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment.
39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case?
40. In response, it has been argued that mechanisms can be devised for the postreturn monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism. To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.”
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-85611
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SHTUKATUROV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 34;Remainder inadmissible;Just satisfaction reserved
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1982 and lives in St Petersburg.
7. Since 2002 the applicant has suffered from a mental disorder. On several occasions he was placed in Hospital no. 6 in St Petersburg for inpatient psychiatric treatment. In 2003 he obtained the status of a disabled person. The applicant lived with his mother; he did not work and received a disability pension.
8. In May 2003 the applicant’s grandmother died. The applicant inherited a flat from her in St Petersburg and a house with a plot of land in the Leningrad region.
9. On 27 July 2004 the applicant was placed in Hospital no. 6 for inpatient treatment.
10. On 3 August 2004 the applicant’s mother lodged an application with the Vasileostrovskiy District Court of St Petersburg, seeking to deprive the applicant of legal capacity. She claimed that her son was inert and passive, that he rarely left the house, that he spent his days sitting on a couch, and that sometimes he behaved aggressively. She indicated that her son had recently inherited property from his grandmother; however, he had not taken the necessary steps to register his property rights. This indicated that he was incapable of leading an independent social life and thus needed a guardian. It appears that the applicant was not formally notified about the proceedings that had been brought in respect of him.
11. On 10 August 2004 the judge invited the applicant and his mother to court to discuss the case. However, there is no evidence that the invitation ever reached the applicant. The court also requested the applicant’s medical records from Hospital no. 6.
12. On 12 October 2004 the judge of the Vasileostrovskiy District Court of St Petersburg commissioned a psychiatric expert examination of the applicant’s mental health. The examination was assigned to the doctors of Hospital no. 6, where the applicant had been undergoing treatment. The judge formulated two questions to the doctors: firstly, whether the applicant suffered from any mental illness; and, secondly, whether he was able to understand his actions and control them.
13. On 12 November 2004 an expert team from Hospital no. 6 examined the applicant and his medical records. The report prepared by the expert team may be summarised as follows. After graduating from college, the applicant worked for a short time as an interpreter. However, some time later he became aggressive, unsympathetic and secluded, and prone to empty philosophising. He abandoned his job, started attending religious meetings and visiting Buddhist shrines, lost most of his friends, neglected his personal hygiene and became very negative towards his relatives. He suffered from anorexia and was hospitalised because of this.
14. In August 2002 he was placed in a psychiatric hospital for the first time with a diagnosis of “simple schizophrenia”. In April 2003 he was discharged from hospital; however, later that same month he was admitted again because of his aggressive behaviour towards his mother. In the following months he was placed in hospital two further times. In April 2004 he was discharged. However, he “continued to live in an antisocial way”. He did not work, loitered in the flat, prohibited his mother from preparing him food or from leaving the flat or moving around, and threatened her. She was so afraid of the applicant that she once spent a night at friends of hers and had to complain to the police about her son.
15. The final part of the report concerned the applicant’s mental condition at the time of his examination. The doctors noted that the applicant’s social maladjustment and autism had worsened. They noted, inter alia, that “the applicant did not understand why he had been subjected to a [forensic] psychiatric examination”. The doctors further stated that the applicant’s “intellectual and mnemonic abilities were without any impairment”. However, his behaviour was characterised by several typical features of schizophrenia, such as “formality of contacts, structural thought disorder ..., lack of judgment, emotional emasculation, coldness, reduced energy potential”. The expert team concluded that the applicant was suffering from “simple schizophrenia with a manifest emotional and volitional defect” and that he could not understand his actions or control them.
16. On 28 December 2004 Judge A. of the Vasileostrovskiy District Court held a hearing on the merits of the case. The applicant was neither notified nor present at that hearing. The applicant’s mother was notified but did not appear. She informed the court that she maintained her initial request and asked the court to examine the case in her absence. The case was examined in the presence of the district prosecutor. A representative of Hospital no. 6 was also present. The representative of the hospital, described in the judgment as “an interested party”, asked the court to declare the applicant incapable. It appears that the prosecutor did not make any remarks on the substance of the case. The hearing lasted ten minutes. As a result, the judge declared the applicant legally incapable, referring to the experts’ findings.
17. Since no appeal was lodged against the judgment of 28 December 2004 within the ten-day time-limit provided by law, the judgment became final on 11 January 2005.
18. On 14 January 2005 the applicant’s mother received a copy of the full text of the judgment of 28 December 2004. Subsequently, on an unspecified date, she was appointed the applicant’s guardian and was authorised by law to act on his behalf in all matters.
19. According to the applicant, he was not sent a copy of the judgment and only became aware of its existence by chance in November 2005, when he found a copy of the judgment among his mother’s papers at home.
20. On 2 November 2005 the applicant contacted Mr Bartenev, a lawyer with the Mental Disability Advocacy Centre (“the lawyer”), and explained the situation. The applicant and the lawyer met for two hours and discussed the case. According to the lawyer, who holds a degree in medicine from the Petrozavodsk State University, during the meeting the applicant was in an adequate state of mind and fully able to understand complex legal issues and give relevant instructions. On the same day the lawyer helped the applicant draft a request to restore the time-limits for lodging an appeal against the judgment of 28 December 2004.
21. On 4 November 2005 the applicant was placed in Hospital no. 6. Admission to hospital was requested by the applicant’s mother, as his guardian; in terms of domestic law it was therefore voluntary and did not require approval by a court (see paragraph 56 below). The applicant claimed, however, that he had been confined to hospital against his will.
22. On 9, 10, 12 and 15 November 2005 the lawyer attempted to meet his client in hospital. The applicant, in turn, requested the hospital administration to allow him to see his lawyer in private. However, Dr Sh., the Director of the hospital, refused permission. He referred to the applicant’s mental condition and the fact that the applicant was legally incapable and therefore could only act through his guardian.
23. On 18 November 2005 the lawyer had a telephone conversation with the applicant. Following that conversation the applicant signed a form authorising the lawyer to lodge an application with the European Court of Human Rights in connection with the events described above. That form was then transmitted to the lawyer through a relative of another patient in Hospital no. 6.
24. The lawyer reiterated his request for a meeting. He specified that he was representing the applicant before the European Court and enclosed a copy of the power of attorney. However, the hospital administration refused permission on the ground that the applicant did not have legal capacity. The applicant’s guardian also refused to take any action on the applicant’s behalf.
25. From December 2005 the applicant was prohibited from having any contact with the outside world; he was not allowed to keep any writing equipment or use a telephone. The applicant’s lawyer produced a written statement by Mr S., another former patient in Hospital no. 6. Mr S. met the applicant in January 2006 while Mr S. was in the hospital in connection with attempted suicide. Mr S. and the applicant shared the same room. In the words of Mr S., the applicant was someone friendly and quiet. However, he was treated with strong medicines, such as Haloperidol and Chlorpromazine. The hospital staff prevented him from meeting his lawyer or his friends. He was not allowed to write letters; his diary was confiscated. According to the applicant, he once attempted to escape from the hospital, only to be captured by the staff members who secured him to his bunk bed.
26. On 1 December 2005 the lawyer complained to the guardianship office of Municipal District no. 11 of St Petersburg about the actions of the applicant’s official guardian, namely his mother. He claimed that the applicant had been placed in the hospital against his will and without medical necessity. The lawyer also complained that the hospital administration was preventing him from meeting the applicant.
27. On 2 December 2005 the applicant himself wrote a letter in similar terms to the district prosecutor. He indicated, in particular, that he was prevented from meeting his lawyer, that his hospitalisation had not been voluntary, and that his mother had placed him in the hospital in order to appropriate his flat.
28. On 7 December 2005 the applicant wrote a letter to the Chief Doctor of Hospital no. 6, asking for his immediate discharge. He claimed that he needed some specialist dental assistance which could not be provided within the psychiatric hospital. In the following weeks, the applicant and his lawyer wrote several letters to the guardianship authority, district prosecutor, public health authority, and so on, calling for the applicant’s immediate discharge from the psychiatric hospital.
29. On 14 December 2005 the district prosecutor advised the lawyer that the applicant had been placed in the hospital at the request of his official guardian, and that all questions related to his eventual release should be decided by her.
30. On 16 January 2006 the guardianship office informed the lawyer that the actions of the applicant’s guardian had been lawful. According to the guardianship office, on 12 January 2006 the applicant was examined by a dentist. As follows from this letter, the representatives of the guardianship office did not meet the applicant and relied solely on information obtained from the hospital and from his guardian – the applicant’s mother.
31. In a letter of 10 December 2005, the lawyer requested the Court to indicate to the Government interim measures under Rule 39 of the Rules of Court. In particular, he requested the Court to oblige the Russian authorities to grant him access to the applicant with a view to assisting him in the proceedings and preparing his application to the European Court.
32. On 15 December 2005 the President of the Chamber decided not to take any decision under Rule 39 until more information was received. The parties were invited to produce additional information and comments regarding the subject matter of the case.
33. Based on the information received from the parties, on 6 March 2006 the President of the Chamber decided to indicate to the Government, under Rule 39 of the Rules of Court, interim measures desirable in the interests of the proper conduct of the proceedings before the Court. These measures were as follows: the Government was directed to organise, by appropriate means, a meeting between the applicant and his lawyer. That meeting could take place in the presence of the personnel of the hospital where the applicant was detained, but outside their hearing. The lawyer was to be provided with the necessary time and facilities to consult with the applicant and help him in preparing the application before the European Court. The Government was also requested not to prevent the lawyer from having such a meeting with his client at regular intervals in future. The lawyer, in turn, was obliged to be cooperative and comply with reasonable requirements of hospital regulations.
34. However, the applicant’s lawyer was not given access to the applicant. The Chief Doctor of Hospital no. 6 informed the lawyer that he did not regard the Court’s decision on interim measures as binding. Furthermore, the applicant’s mother objected to the meeting between the applicant and the lawyer.
35. The applicant’s lawyer challenged that refusal before the St Petersburg Smolninskiy District Court, referring to the interim measure indicated by the European Court of Human Rights. On 28 March 2006 the court upheld his claim, declaring the ban on meetings between the applicant and his lawyer as unlawful.
36. On 30 March 2006 the former Representative of the Russian Federation at the European Court of Human Rights, Mr P. Laptev, wrote a letter to the President of the Vasileostrovskiy District Court of St Petersburg, informing him of the interim measures applied by the Court in the present case.
37. On 6 April 2006 the Vasileostrovskiy District Court examined, on the applicant’s motion, the Court’s request under Rule 39 of the Rules of Court and held that the lawyer should be allowed to meet the applicant.
38. The hospital and the applicant’s mother appealed against that decision. On 26 April 2006 the St Petersburg City Court examined their appeal and quashed the lower court’s judgment of 6 April 2006. The City Court held, in particular, that the District Court had no competence to examine the request lodged by the Representative of the Russian Federation. The City Court further noted that the applicant’s official guardian – his mother – had not applied to the court with any requests of this kind. The City Court finally held as follows:
“... The applicant’s complaint [to the European Court] was lodged against the Russian Federation ... The request by the European Court was addressed to the authorities of the Russian Federation. The Russian Federation as a special subject of international relations enjoys immunity from foreign jurisdiction; it is not bound by coercive measures applied by foreign courts and cannot be subjected to such measures ... without its consent. The [domestic] courts have no right to undertake on behalf of the Russian Federation an obligation to comply with the preliminary measures ... This can be decided by the executive ... by way of an administrative decision.”
39. On 16 May 2006 the St Petersburg City Court examined the appeal against the judgment of 28 March 2006 lodged by the Chief Doctor of Hospital no. 6. The City Court held that “under Rule 34 of the Rules of Court, the authority of an advocate [representing the applicant before the European Court] should be formalised in accordance with the legislation of the home country”. The City Court further held that under Russian law the lawyer could not act on behalf of the client in the absence of an agreement between them. However, no such agreement had been concluded between Mr Bartenev (the lawyer) and the applicant’s mother – the person who had the right to act on behalf of the applicant in all legal transactions. As a result, the City Court concluded that the lawyer had no authority to act on behalf of the applicant, and his complaint should be dismissed. The judgment of 28 March 2006 by the Smolninskiy District Court was thus reversed.
40. On the same day the applicant was discharged from hospital and met with his lawyer.
41. On 20 November 2005 the applicant’s lawyer brought an appeal against the decision of 28 December 2004. He also requested the court to extend the time-limit for lodging the appeal, claiming that the applicant had not been aware of the proceedings in which he had been declared incapable. The appeal was lodged through the registry of the Vasileostrovskiy District Court.
42. On 22 December 2005 Judge A. of the Vasileostrovskiy District Court returned the appeal to the applicant’s lawyer without examination. She indicated that the applicant had no legal capacity to act and, therefore, could only lodge an appeal or any other request through his guardian.
43. On 23 May 2006, after the applicant’s discharge from the psychiatric hospital, the applicant’s lawyer appealed against the decision of 22 December 2005. By a ruling of 5 July 2006, the St Petersburg City Court upheld the decision of 22 December 2005. The City Court held that the Code of Civil Procedure did not allow for the lodging of applications for restoration of procedural terms by legally incapable persons.
44. In the following months the applicant’s lawyer introduced two appeals for supervisory review, but to no avail.
45. According to the applicant’s lawyer, in 2007 the applicant was admitted to Hospital no. 6 again, at the request of his mother.
46. Under Article 21 of the Civil Code of the Russian Federation of 1994, any individual aged 18 or over has, as a rule, full legal capacity (дееспособность), which is defined as “the ability to acquire and enjoy civil rights, create and fulfil civil obligations by his own acts”. Under Article 22 of the Civil Code legal capacity can be limited, but only on the grounds defined by law and within a procedure prescribed by law.
47. Under Article 29 of the Civil Code, a person who cannot understand or control his or her actions as a result of a mental illness may be declared legally incapable by the court and placed in the care of a guardian (опека). All legal transactions on behalf of the incapacitated person are concluded by his guardian. The incapacitated person can be declared fully capable if the grounds on which he or she was declared incapable cease to exist.
48. Article 30 of the Civil Code provides for partial limitation of legal capacity. If a person’s addiction to alcohol or drugs is creating serious financial difficulties for his family, he can be declared partially incapable. That means that he is unable to conclude large-scale transactions. He can, however, dispose of his salary or pension and make small transactions, under the control of his guardian.
49. Article 135 § 1 of the Code of Civil Procedure of 2002 establishes that a civil claim lodged by a legally incapable person should be returned to him without examination.
50. Article 281 of the same Code establishes the procedure for declaring a person incapable. A request for incapacitation of a mentally ill person can be brought before a first-instance court by a family member of the person concerned. On receipt of the request, the judge must commission a forensic psychiatric examination of the person concerned.
51. Article 284 of the Code provides that the incapacitation request should be examined in the presence of the person concerned, the plaintiff, the prosecutor and a representative of the guardianship office (орган опеки и попечительства). The person whose legal capacity is being examined by the court is to be summoned to the court hearing, unless his state of health prohibits him from attending it.
52. Article 289 of the Code provides that full legal capacity can be restored by the court at the request of the guardian, a close relative, the guardianship office or the psychiatric hospital, but not of the person declared incapable himself.
53. The Psychiatric Assistance Act of 2 July 1992, as amended (“the Act”), provides that any recourse to psychiatric aid should be voluntary. However, a person declared fully incapable may be subjected to psychiatric treatment at the request or with the consent of his official guardian (section 4 of the Act).
54. Section 5(3) of the Act provides that the rights and freedoms of persons with mental illnesses cannot be limited solely on the ground of their diagnosis, or the fact that they have been subjected to treatment in a psychiatric hospital.
55. Under section 5 of the Act, a patient in a psychiatric hospital can have a legal representative. However, pursuant to point 2 of section 7, the interests of a person declared fully incapable are represented by his official guardian.
56. Section 28(3) and (4) of the Act (“Grounds for hospitalisation”) provides that a person declared incapable can be subjected to hospitalisation in a psychiatric hospital at the request of his guardian. This hospitalisation is regarded as voluntary and does not require approval by the court, as opposed to non-voluntary hospitalisation (sections 39 and 33 of the Act).
57. Section 37(2) of the Act establishes the list of rights of a patient in a psychiatric hospital. In particular, the patient has the right to communicate with his lawyer without censorship. However, under section 37(3) the doctor may limit the applicant’s rights to correspond with other persons, have telephone conversations and meet visitors.
58. Section 47 of the Act provides that doctors’ actions can be appealed against before the court.
59. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 4 on principles concerning the legal protection of incapable adults. The relevant provisions read as follows.
“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable a suitable legal response to be made to different degrees of incapacity and various situations.
...
4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.
...”
“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.
...”
“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.
2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.”
“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”
“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.
...
3. There should be adequate rights of appeal.”
VIOLATED_ARTICLES: 34
5
6
8
VIOLATED_PARAGRAPHS: 5-1
5-4
6-1


ITEMID: 001-67478
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MORENO GOMEZ v. SPAIN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1948 and lives in Valencia.
9. The applicant has lived in a flat in a residential quarter of Valencia since 1970.
10. Since 1974 the Valencia City Council has allowed licensed premises such as bars, pubs and discotheques to open in the vicinity of her home, making it impossible for people living in the area to sleep.
11. Local residents first complained about vandalism and noise in the locality before 1980.
12. In view of the problems caused by the noise, the Valencia City Council resolved on 22 December 1983 not to permit any more night clubs to open in the area. However, the resolution was never implemented and new licences were granted.
13. In 1993 the City Council commissioned a report by an expert. The expert found that the noise levels were unacceptable and exceeded permitted levels. At 3.35 a.m. on Saturdays they were in excess of 100 dBA Leq (decibels), ranging from 101 to 115.9 dBA Leq.
14. In a report of 31 January 1995 the police informed the Valencia City Council that nightclubs and discotheques in the sector in which the applicant lived did not systematically close on time. They said that they were able to confirm that the local residents’ complaints were founded.
15. On 28 June 1996 the City Council approved a new bylaw on noise and vibrations, which was published on 23 July 1996 in the Official Gazette of Valencia province. Article 8 of the bylaw lays down that in a family residential area (such as the one in which the applicant lives) external noise levels were not to exceed 45 dBA Leq between 10 p.m. and 8 a.m. Article 30 of the bylaw defines “acoustically saturated zones” as areas in which the large number of establishments, activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance.
16. Lastly, the bylaw specified the conditions that had to be satisfied for an area to be designated an “acoustically saturated zone” (zona acústicamente saturada) and the consequences of designation, which included a ban on new activities (such as nightclubs and discotheques) that led to acoustic saturation.
17. Following a resolution of the Valencia City Council sitting in plenary session on 27 December 1996, which was published in the Official Gazette of the Valencia province on 27 January 1997, the area in which the applicant lived was designated an acoustically saturated zone.
18. Nevertheless, on 30 January 1997 the City Council granted a licence for a discotheque to be opened in the building she lived in. The licence was subsequently declared invalid by a judgment of the Supreme Court of 17 October 2001.
19. In order to determine whether the area should be designated an acoustically saturated zone, the City Council took various sound-level readings to monitor acoustic pollution there. In each of its reports the City Council laboratory indicated that the noise levels exceeded those permitted by the bylaw.
20. The applicant was exasperated by the situation, which prevented her from sleeping and resting and caused her insomnia and serious health problems. On 21 August 1997 she lodged a preliminary claim with the Valencia City Council in which she relied on Article 15 (right to life and to physical integrity) and Article 18 § 2 (right to the privacy and inviolability of the home). She sought 3,907 euros (650,000 pesetas) for the damage she had sustained and the cost of installing double glazing.
21. Having received no reply from the authorities and in accordance with the Fundamental Rights (Protection) Act (Law no. 62/1978), the applicant lodged an application for judicial review with the Valencia High Court of Justice on 25 November 1997, alleging a violation of Articles 15 and 18 § 2 of the Constitution.
22. On 2 October 1997 the Valencia City Council lodged its written observations. It submitted that the application was premature and should be declared inadmissible, as the Council could still find a solution. This preliminary objection was dismissed in a decision of 27 October 1997.
23. On 11 December 1997 the representative of state council’s office argued that the court should find in favour of the applicant. He considered that there had been a violation of Articles 15 and 18 § 2 of the Constitution and that the applicant’s claim for damages was justified.
24. In a judgment of 21 July 1998, delivered after an adversarial hearing in public, the Valencia High Court of Justice dismissed the application for judicial review. It found that the readings had been taken in the entrance hall to the building, not in the applicant’s flat, and could not entail a violation of Articles 15 and 18 § 2 of the Constitution; it also noted that the medical expert’s report stated only that the applicant had been receiving treatment for insomnia for several years, without indicating the length of or reason for such treatment.
25. On 9 October 1998 the applicant lodged an amparo appeal with the Constitutional Court. Relying on Articles 14 (equality) and 24 (right to a fair hearing) of the Constitution, she complained that the High Court of Justice had not given sufficient reasons in its judgment or assessed the evidence. She also complained under Articles 15 and 18 § 2 of the Constitution of a violation of her rights to life, physical and mental integrity, privacy and the inviolability of the home.
26. In a decision of 29 May 2000, the Constitutional Court declared the amparo appeal admissible and invited the applicant, the representative of state council’s office and the Valencia City Council to submit their observations. On the same day, it summoned the parties to a hearing on the merits on 16 May 2001.
27. At the hearing on 16 May 2001, which was attended by all the parties, the applicant repeated her factual and legal submissions, stressing that there had been a violation of her fundamental rights.
28. The Valencia City Council raised a number of preliminary objections. It further submitted that the appeal was confined to the decision of the Valencia High Court of Justice. With regard to the alleged violation of Articles 15 and 18 § 2 of the Constitution, it stated that there was no evidence of noise levels inside the applicant’s home and that the authority concerned should not bear sole responsibility for the noise to which the applicant had allegedly been exposed, as it had very limited means at its disposal to combat it.
29. The representative of state council’s office agreed with the applicant that there had been a violation of Articles 15 and 18 § 2 of the Constitution. He argued that the amparo appeal should be regarded as hybrid, since it both accused the Valencia City Council of failing to defend the fundamental rights set out in Articles 15 and 18 of the Constitution and challenged the Valencia High Court of Justice’s decision, alleging a violation of Articles 14 and 24 of the Constitution also.
30. As regards the violation of Articles 15 and 18 § 2 of the Constitution, the representative of state council’s office said that, in the light of the judgments of the European Court of Human Rights, in particular in the case of López Ostra v. Spain, there had been a violation of the applicant’s right to the inviolability of her home, as her home environment had been rendered unfit for ordinary everyday living. On the basis of the Court’s case-law, he sought a broader definition of the constitutional concept of the “home”.
31. As regards noise levels inside the applicant’s home, the representative of state council’s office considered that the burden of proof had been reversed, as it was clear in the instant case that officials from the City Council had confirmed on a number of occasions that the maximum permitted noise levels were being exceeded. Consequently, he did not consider it necessary to require such proof from the applicant.
32. In a judgment of 29 May 2001, which was served on 31 May 2001, the Constitutional Court dismissed the appeal after also dismissing the Valencia City Council’s preliminary objections. It ruled that the amparo appeal was hybrid in nature, that is to say that it alleged a violation of Articles 15 and 18 § 2 of the Constitution by the Valencia City Council and a breach of Articles 14 and 24 of the Constitution by the Valencia High Court of Justice.
33. As regards the alleged violation of Articles 14 and 24 of the Constitution, the Constitutional Court began by noting that it was not entitled to substitute the High Court’s assessment of the evidence with its own. As to the applicant’s allegation that the judgment did not contain sufficient reasons, it noted that the High Court’s decision could not be regarded as arbitrary or unreasonable. It further observed that the applicant had not identified the decisions on which she relied in alleging discrimination. Thus, there was no evidence of any violation of Articles 14 and 24 of the Constitution.
34. With regard to the alleged violation of Articles 15 (right to life and physical integrity) and 18 § 2 (right to privacy and to the inviolability of the home) of the Constitution, the Constitutional Court referred to the decisions in which the European Court of Human Rights had held that, in cases of exceptional gravity, repeated damage to the environment could infringe the right to respect for private and family life under Article 8 § 1 of the Convention, even if did not endanger health. The Constitutional Court held, however:
“... there may only be a violation of Article 15 of the Constitution if the level of acoustic saturation to which a person is exposed as a result of an act or omission of a public authority causes serious and immediate damage to his or her health.”
35. The Constitutional Court found that that test had not been satisfied in the case before it and pointed out:
“... even though the appellant maintains that the noise levels to which she was exposed turned her into an insomniac, the only evidence she has adduced is a certificate stating that she was admitted to hospital and saw a doctor, without any indication of the period for which she had been suffering from lack of sleep or the cause thereof. ...”
36. The Constitutional Court found that the applicant had not established a direct link between the noise and the damage she had sustained.
37. As to the allegation of a violation of Article 18 of the Constitution, the Constitutional Court further found that she had not established the existence of a nuisance in her home that amounted to a violation of the constitutional provision. It stated:
“... the appellant has confined herself to making a general complaint by stating that the origin of the noise was diffuse and not restricted to a single source of production, and that the acoustic saturation resulted from a combination of noises. ... On the contrary, her entire case is based on a few sound-level readings taken inside her home which gave disparate results ... and do not establish that there has been a violation of the right relied on. ...”
38. By way of conclusion, the Constitutional Court dismissed the amparo appeal on the following ground:
“Consequently, as regards the alleged violation of the rights relied on the amparo appeal must be dismissed, as the appellant has failed to prove the existence of a genuine effective breach of fundamental rights attributable to the Valencia City Council.”
39. That judgment was delivered by the Constitutional Court sitting as a full court. However, two judges expressed concurring opinions. The first said that the judgment restricted the free development of the personality at home. He considered that the conditions that had to be satisfied for there to be a violation of fundamental rights in the case under consideration were unreasonable and he defended the need to speak of a triple layer of constitutional protection, ranging from the right to physical and moral integrity (Article 15 of the Constitution) to an environment that was suitable for personal development (Article 45 § 1 of the Constitution), via the right to privacy in the home (Article 18 § 2 of the Constitution).
40. The second judge pointed out in his concurring opinion that there was a preliminary problem that had not been adequately dealt with, namely the degree to which the relevant authority was required to provide the requested protection. Determining the extent of that obligation was a prerequisite to establishing whether or not there existed a causal link between the authority’s failure to act and the alleged violation. The authorities were obliged to exercise their power when the breach of the fundamental rights attained a certain level of gravity.
41. The relevant provisions of the Constitution are as follows:
“The provisions relating to the fundamental rights and freedoms recognised under the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and the international treaties and agreements which Spain has ratified in that sphere.”
“Everyone shall have the right to life and to physical and mental integrity. ...”
“The home shall be inviolable. ...”
“Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it.
...”
“Every citizen shall be entitled to seek protection of the freedoms and rights recognised in Article 14 and in the first section of Chapter II by bringing an action in the ordinary courts under a procedure designed to ensure priority and expedition and, in appropriate cases, by an appeal (recurso de amparo) to the Constitutional Court...”
42. Section 6, which was repealed by the Administrative Courts Act of 13 July 1998 (Law no. 29/1998), read as follows:
“... [a]n application for judicial review may be brought in accordance with the procedural rules set out in this section in respect of decisions of the public authorities that are subject to administrative law and liable to affect the exercise of the fundamental rights of the person...”
43. The relevant parts of Article 44 of the Constitutional Court Act reads:
“1. An amparo appeal for violations of rights and guarantees amenable to constitutional protection ... will lie only if:
...
(c) the party relying on the alleged violation formally pleads it in the relevant proceedings after becoming aware of its occurrence.”
44. The relevant provisions of the bylaw provide:
“Permitted external noise-reception levels shall be determined by reference to the main user of each of the areas marked on the city development plan and shall not exceed:
Maximum reception levels:
...
Multiple family residence:
Daytime (from 8 a.m. to 10 p.m.): 55 dB (A)
Night-time (from 10 p.m. to 8 a.m.): 45 dB (A)
...”
“1. Zones that are acoustically saturated by additional causes are areas or places in which the large number of establishments, activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance.
2. An area may be designated an acoustically saturated zone (ASZ) if, though individual activities are compliant with the levels set out in this bylaw, the level of disturbance due to external noise as referred to in Article 8 is exceeded twice-weekly in consecutive weeks, or three times intermittently over a period of 35 days, and exceeds 20 dB (A).”
45. The relevant parts of the report drawn up by Mr X, a professor of applied physics, on the sound-level readings taken in the district in which the applicant lived in Valencia read as follows:
“The results obtained from measurements taken by the Valencia University acoustic laboratory over a period of several years in the said area and measurements taken by other bodies showed that ambient noise levels in this area, in particular at nights and weekends (especially between 1 a.m. and 3 a.m.) are extremely high. At these periods in the area concerned the hourly equivalent sound levels (Leq) frequently exceed 70 dB (A) and the maximum corresponding levels exceed 80 dB (A).
As a result, we can say that noise levels in dwellings in this urban area are intolerably high at night-time and, consequently, detrimental to the health and well-being of the residents.
This conclusion is based on the fact that, even with the windows closed (including in the height of summer), indoor noise levels are very high. It should be noted that under the current regulations (building norm NBE-CA-88) the minimum insulation requirement for the frontage of buildings is 30 dB (A). In practice, that figure is never attained and is generally in the region of 15 to 20 dB (A).
Consequently, in these circumstances, night-time noise levels inside the dwellings, for example in bedrooms overlooking the street, can be estimated at in the region of 50 dB (A), with maximum levels reaching approximately 60 dB (A). We would point out that this is a general estimate and is made without the need for specific measurements to be taken inside the dwellings concerned.
We should explain here that the difference between 50 or 60 dB (A) and 30 dB (A) is enormous. Thus, an increase from 30 to 33 dB (A) does not represent a slight increase in noise (as a layman might think) but the doubling in intensity of the corresponding noise. An informed reading of this report is only possible if the meaning of the “decibel” unit used here is correctly understood.”
VIOLATED_ARTICLES: 8


ITEMID: 001-5029
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: EZIOBOU AND EBIGWEI v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Marc Fischbach
TEXT: The applicants are Nigerian nationals, born in 1969 and 1975 respectively and living in Athens. They are represented before the Court by Mr I. Ktistakis, a lawyer practising in Athens. They are detained in the Police Headquarters in Athens in view of their deportation to Nigeria.
s, may be summarised as follows.
The applicants were arrested in Thebes on 13 November 1999 for detention of drugs and sale of forged CD records. Mr Ebigwei declared that he had arrived in Greece three months ago to study Philosophy in the Athens University. Mr Ebiozou stated that he was a British national. However, the police discovered that they had used forged documents and illegally entered into the country. In his testimony to the police, Mr Ebigwei alleged, inter alia, that there was a risk for his life if deported to Nigeria, because he was a Christian and because of the conflict between Christians and Muslims there, which resulted in the death of two of his brothers and his sister four years ago.The applicants were brought before the First Instance Court of Thebes and tried by virtue of immediate summary proceedings (ie where no further investigations are required) : Mr Ebigwei on 15 November 1999 and Mr Eziobou on 19 November 1999. The Court sentenced Mr Ebigwei to thirty-eight days’ imprisonment, convertible into a pecuniary penalty and Mr Eziobou to three months’ imprisonment. The Court also ordered their immediate expulsion. Since that date and until 25 December 1999, the applicants have both been detained at the police station in Thebes in a small cell (1,5 m x 2 m) and fed once every two days. Between 27 and 29 December, they were transferred in the police headquarters in Athens, in view of their deportation to Nigeria.