EHRM, 24-04-2008, nr. 2947/06

According to reports by Amnesty International and Human Rights Watch between June and August 2004 twenty-three businessmen were arrested in Andijan (Uzbekistan). In September 2004 twenty of their employees were detained in Tashkent. Another group of thirteen businessmen were arrested in Andijan in February 2005. All of them were accused of involvement with an organisation by the name of Akramia, charged with criminal offences and committed for trial.

The Uzbek government claimed that Akramia was an extremist religious group. They maintained that in his writings the group's leader, Akram Yuldashev, had called for the formation of an Islamic state in Uzbekistan and for the ousting of the legitimately elected State representatives. They also claimed that Akramia was a branch of Hizb-ut-Tahrir, which was categorised as a terrorist organisation in Uzbekistan. In contrast, Akram Yuldashev always insisted that he had no interest in politics. He maintained that he had never called for the overthrow of the authorities or for the creation of an Islamic state. His writings did not touch upon political issues, but rather on general moral themes. A circle of sympathisers had formed around him, who tried to follow his view of Islam in their own lives. Akram Yuldashev's supporters argued that there was no such thing as an organised group known as Akramia. The name ‘Akramia’ was derived by an Uzbek court in 1999 from Akram Yuldashev's first name. Furthermore, Akram Yuldashev and his supporters denied having any links with Hizb-ut-Tahrir.

The verdict in respect of the twenty-three businessmen was expected on 11 May 2005. However, its pronouncement was postponed. A group of supporters who gathered in front of the court building to protest the businessmen's innocence and demand justice were arrested on 11 and 12 May 2005.

In the early hours of 13 May 2005 armed men attacked a number of military barracks and government buildings in Andijan, killing and injuring several guards, and seizing weapons and a military vehicle. They broke into the city prison, where they freed the businessmen and hundreds of remand and convicted prisoners, and later occupied a regional government building on the main square and took a number of hostages.

At the same time thousands of unarmed civilians gathered in the main square, where many spoke out to demand justice and an end to poverty. In the early evening the security forces surrounded the demonstrators and started to shoot indiscriminately at the crowd. The demonstrators attempted to flee. According to witnesses, hundreds of people — including women and children — were killed. The Uzbek authorities deny responsibility for the deaths, blaming them on Islamic ‘extremist’ organisations, such as Akramia and Hizb-ut-Tahrir, who were intent on overthrowing the government and creating an Islamic state in Uzbekistan.

Hundreds of people suspected of involvement in the 13 May events were detained and charged. The charges included ‘terrorism’ and premeditated, aggravated murder — capital offences — as well as attempting to overthrow the constitutional order and organising mass disturbances. At least 230 people were convicted and sentenced to between twelve and twenty-two years' imprisonment for their alleged participation in the unrest. All trials except one were closed to the public. The defendants' relatives and international observers were denied access to the courtroom. The Organisation for Security and Co-operation in Europe (OSCE) and Human Rights Watch observers who were present at the only public trial from September to November 2005 were unanimous in their conclusion that the trial fell far short of international standards. They noted that all the defendants pleaded guilty to charges of ‘terrorism’ and asked for forgiveness, while several even requested that they be given the death penalty. Their confessions, which were obtained from them during incommunicado pre-trial detention, closely followed the wording of the indictment. The observers expressed concerns that the defendants could have been subjected to torture and that their confessions could have been extracted under duress. Retained lawyers were not allowed to the detention centres or in the courtroom and were barred from representing their clients. The defendants were represented by State-appointed counsel who did not mount an active defence of the accused. There was no cross-examination of defendants or witnesses, and contradictions in the testimonies were not addressed. No witnesses for the defence were called to testify. The prosecution did not introduce any forensic, ballistic, or medical reports, nor did it present any exhibits or call expert witnesses. All the defendants were found guilty, predominantly on the basis of their confessions, and sentenced to terms of imprisonment ranging from fourteen to twenty years (see Human Rights Watch report of 12 May 2006 ‘The Andijan Massacre: one year later, still no justice’; and the report of 21 April 2006 from the OSCE/ODIHR ‘Trial monitoring in Uzbekistan — September/October 2005’).

All the applicants stated that they were Muslims. They denied membership of any political or religious organisations.

In 2000 Mr Muhamadsobirov was arrested in Uzbekistan by the Uzbekistan National Security Service (‘the SNB’). He stated that the SNB agents had repeatedly beaten him, threatened to rape his wife and demanded he confessed to planning a violent overthrow of the State. He was subsequently convicted for distributing Islamic leaflets. In prison Mr Muhamadsobirov was repeatedly beaten by the wardens and tortured with electric shocks. He was placed in a punishment cell if he prayed. Food was scarce and the inmates were starving. He was released in 2003. The SNB agents repeatedly threatened to re-arrest him and to fabricate new criminal charges. He left for Russia on 19 February 2004.

His brother, Mr Muhametsobirov, moved to Russia in 2000. He has been living in Russia ever since.

Mr Kasimhujayev and Mr Rustamhodjaev have been living in Russia since 2001.

Mr Usmanov, Mr Naimov, Mr Makhmudov, and Mr Alimov were partners in private companies in Tashkent or Andijan. Mr Ismoilov, Mr Ulughodjaev, and Mr Sabirov were employees of private companies. In autumn 2004 the tax authorities and the SNB launched an inquiry into the companies' tax affairs. The applicants were repeatedly questioned about business matters and about their or their relatives' alleged participation in Akramia's activities. The SNB agents threatened to arrest Mr Ulughodjaev and Mr Sabirov. In January 2005 business partners of Mr Usmanov, Mr Makhmudov, and Mr Alimov were arrested.

Mr Naimov was arrested by the SNB in September 2004 and held in detention for fifteen days. He stated that he had been subjected to repeated beatings and questioned about his business and alleged membership of Akramia. After his release he was summoned to the SNB office on several occasions where the SNB agents threatened him and his family.

Mr Usmanov, Mr Naimov, Mr Makhmudov, Mr Alimov, Mr Ismoilov, Mr Ulughodjaev, and Mr Sabirov left Uzbekistan for Russia between January and March 2005 for fear of persecution.

Mr Hamzaev owned a company in the town of Kokand (Uzbekistan). He has never been to Andijan. He travelled to Russia on 23 April 2005 on business.

Before 2003 Mr Tashtemirov lived in Kyrgyzstan. In 2003 he moved to Turkey. He has never been to Uzbekistan. In June 2005 he went to Russia on a business trip.

On 13 May 2005 all the applicants except Mr Tashtemirov and Mr Kasimhujayev were in Russia. Mr Tashtemirov was in Turkey and Mr Kasimhujayev in Andijan. However, he denied any involvement in the Andijan events.

After the May events two of Mr Ismoilov's brothers were arrested. Their fate remains unknown.

On 2 February 2005 the Tashkent prosecutor's office accused Mr Naimov of membership of Akramia, and charged him with organising a criminal conspiracy, attempting to overthrow the constitutional order of Uzbekistan, membership of an illegal organisation and the possession and distribution of subversive literature (Articles 159 § 4, 242 § 1, 244-1 § 3, and 244-2 § 1 of the Uzbekistan Criminal Code). On 25 May 2005 it ordered his arrest.

On 17, 18 and 19 June 2005 the Uzbekistan prosecutor's office charged the other applicants with membership of extremist organisations, such as Akramia, Hizb-ut-Tahrir and the Islamic Movement of Turkestan, financing terrorist activities, attempting a violent overthrow of the constitutional order of Uzbekistan, aggravated murder and organising mass disorders on 13 May 2005 in Andijan (offences under Articles 97 § 2 (a, d, j and m), 155 § 3 (a and b), 159 § 3 (b), 242 § 2, and 244 of the Uzbekistan Criminal Code). Some of the applicants were also charged with involvement in subversive activities, unlawful possession of firearms, and the dissemination of materials liable to undermine public security and public order, in conspiracy with others and with financial backing from religious organisations (Articles 161, 244-1 § 3, 244-2, and 247 § 3 of the Uzbek Criminal Code). On the same dates the Tashkent and Andijan prosecutor's offices ordered the applicants' arrest.

At the material time aggravated murder (Article 97 § 2 of the Criminal Code) and terrorism (Article 155 § 3 of the Criminal Code) were capital offences in Uzbekistan. However, Uzbekistan abolished the death penalty with effect from 1 January 2008 and replaced it with life imprisonment. The remaining offences are punishable by terms of imprisonment ranging from five to twenty years.

The applicants said that on 18 June 2005 they had been arrested in Ivanovo. They had not been informed of the reasons for their arrest. On 20 June 2005 they had been questioned by SNB agents from Uzbekistan who had beaten them and threatened them with torture in Uzbekistan. They had been told that they would be forced to confess to various crimes and be sentenced to long prison terms or death.

The documents issued by various State authorities indicate inconsistent dates of, and reasons for, the applicants' arrest. Thus, on 6 December 2005 the officer in charge of the Oktyabrskiy District Police Station affirmed that Mr Ismoilov, Mr Usmanov, and Mr Tashtemirov had been arrested on 19 June 2005 and charged with administrative offences for uttering obscenities in public and refusing to produce identity documents. A police report dated 20 June 2005 stated that the applicants had been arrested on that day because they were wanted by the Uzbek police. However, in a letter of 16 January 2006, the Ivanovo regional police department asserted that all the applicants had been arrested on 19 June 2005.

On 20 June 2005 the Ivanovo police informed the Tashkent police of the applicants' arrest. On the same day the Tashkent prosecutor's office requested the Ivanovo prosecutor's office to keep the applicants in detention pending extradition.

In July 2005 the Prosecutor General's Office of the Russian Federation received requests for the applicants' extradition from the Prosecutor General of Uzbekistan. The Uzbek prosecutor's office gave an assurance that without Russia's consent the applicants 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. It also stated that after serving their sentences they would be free to leave Uzbekistan.

On 21 July 2005 further assurances were given by the First Deputy Prosecutor General of Uzbekistan. He gave an undertaking that the applicants would not be subjected to the death penalty, torture, violence or other forms of inhuman or degrading treatment or punishment. Their rights of defence would be respected and they would be provided with counsel. He also gave an assurance that the Uzbek authorities had no intention of persecuting the applicants out of political motives, on account of their race, ethnic origin, or religious or political beliefs. Their intention was to prosecute the applicants for the commission of particularly serious crimes.

The Ivanovo prosecutor's office carried out an inquiry and established that none of the applicants, except Mr Kasimhujayev, had left Russia in May 2005. Mr Kasimhujayev had been in Andijan from 10 to 25 May 2005. Mr Tashtemirov had arrived in Russia from Turkey in June 2005. None of the applicants had made money transfers to Uzbekistan in 2005.

On 14 July 2005 counsel for the applicants complained to the Sovetskiy and Frunzenskiy District Courts of Ivanovo that their detention was unlawful. She submitted that the applicants had not been served with detention orders. On 15 July 2005 (the decisions are dated 15 May 2005, but this appears to be a misprint) the Sovetskiy and Frunzenskiy District Courts of Ivanovo returned the complaints because counsel had not indicated which acts or omissions of State officials she wished to challenge, which made it impossible to establish whether they had territorial jurisdiction to examine the complaints.

The applicants did not appeal.

By separate decisions of 20, 25, 27, 28, and 29 July 2005, the Sovetskiy, Oktyabrskiy, Frunzenskiy, and Leninskiy District Courts of Ivanovo ordered the applicants' detention pending extradition on the basis of Articles 108 and 466 of the Russian Code of Criminal Procedure (see paragraphs 85 and 87 below). They referred to the gravity of the charges, and to the risk of the applicants' absconding, re-offending or obstructing the investigation. It was also noted that the applicants had absconded from Uzbekistan to Russia. The courts held that it was not possible to apply a less restrictive measure and that only detention could secure their extradition and ‘the execution of any sentence that might be imposed’. The courts did not set a time-limit on the detention.

On 9 or 11 August 2005 the Ivanovo Regional Court upheld the decisions on appeal.

On 20 June 2006 counsel for the applicants asked the director of the remand centre to release the applicants. In particular, she claimed that Article 109 of the Code of Criminal Procedure set the maximum period of detention at twelve months (see paragraph 85 below). A further extension was permitted only in exceptional circumstances. As the detention period had not been extended following the expiry of the twelve-month period on 20 June 2006, the applicants' subsequent detention was unlawful.

On 21 June 2006 the director of the remand centre replied that Article 109 did not apply to cases of detention pending extradition and refused to release the applicants.

Counsel challenged that refusal before a court, pursuant to Articles 254 and 258 of the Civil Code (see paragraph 89 below). On 26 and 28 June 2006 the Oktyabrskiy District Court of Ivanovo returned the complaint claiming that it had to be examined in criminal, not civil, proceedings. On 31 July, 7, 21, and 23 August 2006 the Ivanovo Regional Court upheld those decisions on appeal.

On 30 June 2006 counsel for the applicants petitioned the Sovetskiy, Oktyabrskiy, Frunzenskiy, and Leninskiy District prosecutors for the applicants' release. On 3 and 10 July 2006 the prosecutors rejected their applications. They pointed out that domestic law did not set a maximum period for detention pending extradition or establish a procedure for the extension of such detention.

In July 2005 counsel lodged applications for release with the Sovetskiy, Oktyabrskiy, Frunzenskiy, and Leninskiy District Courts of Ivanovo. She reiterated the arguments set forth in her complaint of 20 June 2006 and submitted that the director of the detention centre and the prosecutors had acted unlawfully in refusing release.

On 1 August 2006 the Sovetskiy District Court refused to entertain the applications for release. It held, firstly, that they could not be examined in criminal proceedings because there were no criminal proceedings pending against the applicants in Russia. It further held that domestic law did not set a maximum period for detention pending extradition and added:

On 24 August 2006 the Ivanovo Regional Court upheld that decision on appeal. It endorsed the reasoning of the District Court and indicated that the applications were to be examined in civil proceedings.

On 26 July, 7 and 8 September 2006 the Frunzenskiy District Court returned the applications of Mr Rustamhodjaev and Mr Kasimhujayev because their applications could not be examined in criminal proceedings. It also pointed out that Article 109 of the Code of Criminal Procedure did not apply to detention pending extradition. On 17 October 2006 the Ivanovo Regional Court upheld those decisions on appeal.

Mr Tashtemirov's applications were disallowed in decisions of 28 July and 4 September 2006 by the Oktyabrskiy District Court, which held that domestic law did not set a maximum period for detention pending extradition and that there was no reason to vary the preventive measure. On 22 August and 28 September 2006 the Ivanovo Regional Court upheld those decisions on appeal.

Mr Alimov contested the refusal to release him under Article 125 of the Code of Criminal Procedure (see paragraph 86 below). On 18 September 2006 the Leninskiy District Court refused to entertain his application. It found that such complaints were to be filed with a court having jurisdiction for the place where the preliminary investigation was carried out. Since Mr Alimov was not the subject of any investigation in Russia, his application for release could not be examined in Russian criminal proceedings. It indicated that the application for release should be examined in civil proceedings. On 17 October 2006 the Ivanovo Regional Court quashed that decision as unlawful. On 7 November 2006 the Leninskiy District Court refused to entertain the application for the same reasons as before. On 5 December 2006 the Ivanovo Regional Court upheld the decision on appeal.

The applicants again challenged the refusal to release them in civil proceedings. By separate decisions of 22 January 2007 the Oktyabrskiy District Court refused to hear the applications because they could not be examined in civil proceedings. It held that the applications had to be examined in criminal proceedings. On 12 and 19 March 2007 the Ivanovo Regional Court upheld the decisions on appeal.

In January 2007 the applicants unsuccessfully petitioned prosecutors at different levels for their release.

By separate decisions of 2 and 5 March 2007 the Sovetskiy, Leninskiy, Frunzenskiy and Oktyabrskiy District Courts ordered, of their own motion, the applicants' release. They found that Article 109 of the Code of Criminal Procedure was applicable to detention pending extradition and established a maximum period for detention at eighteen months. As the applicants had been detained for more than twenty months, they had to be released immediately.

On 5 March 2007 the applicants were released.

On 27 March 2007 the Ivanovo Regional Court upheld the decisions of 2 and 5 March 2007 on appeal.

On 5 August 2005 the applicants applied to the Russian Federal Migration Service (‘the FMS’) for refugee status. In particular, they submitted that they had left Uzbekistan for fear of persecution in connection with their business activities. They claimed that some of the applicants or their relatives had a history of unlawful prosecution. They denied membership of Akramia or any involvement in the events in Andijan. They maintained that the accusations against them were groundless and that their prosecution was arbitrary and politically motivated.

On 25 January 2006 the United Nations High Commissioner for Refugees (‘the UNHCR’) intervened in support of their applications. The Commissioner submitted that Akramia was a peaceful non-violent group of followers of the teachings of Akram Yuldashev. In his writings, Akram Yuldashev called on Muslim businessmen to cooperate and help the poor. There was no evidence of the group's involvement in any extremist activities. It was believed that successful Muslim businessmen were persecuted in Uzbekistan because of their popularity and influence over the local population. It further continued:

The UNHCR further argued that the risk of persecutions had increased after the Andijan events.

On 10 February 2006 Human Rights Watch also supported the applicants' request for refugee status. They submitted as follows:

On 16 March 2006 a deputy head of the Ivanovo Regional Department of the FMS rejected the applications by reference to sections 1 § 1 (1) and 2 § 1 (1 and 2) of the Refugees Act (see paragraphs 92 and 93 below). He found that the applicants had not been persecuted for their political or religious beliefs, or their social status. They had been prosecuted for the commission of serious criminal offences which were punishable under Russian criminal law. In particular, they had been charged with supporting Hizb-ut-Tahrir and the Islamic Movement of Turkestan, which had been recognised by the Russian Supreme Court as terrorist organisations and whose activities were banned in Russia. He further noted that the Uzbek authorities had undertaken not to impose the death penalty on the applicants and to ensure that they would not be subjected to torture or ill-treatment and would be provided with defence counsel.

The applicants challenged the refusals before the Oktyabrskiy District Court of Ivanovo. They maintained that the real motives behind their prosecution were political and that they were in fact being persecuted for their successful business activities. They also submitted that there was a great risk that they would be tortured and unfairly tried in Uzbekistan.

On 8, 9, 13, 15, and 16 June 2006 the Oktyabrskiy District Court confirmed the decisions of 16 March 2006. It found that the applicants had come to Russia to find employment. They had not proved that they had left Uzbekistan for fear of being persecuted on account of their religious or political beliefs, or social status. In the decisions concerning certain applicants it also added:

The court concluded that the applicants did not meet the requirements of section 1 § 1 (1) of the Refugees Act and were, therefore, not eligible for refugee status. However, it struck down the reference in the decisions of 16 March 2006 to section 2 § 1 (1 and 2) of the Refugees Act because the Uzbek authorities had not proved beyond reasonable doubt that the applicants had committed a crime against peace, a war crime, a crime against humanity or a serious non-political crime.

On 5 July 2006 the UNHCR granted the applicants mandate refugee status.

On 12, 17, 19, 24 and 26 July 2006 the Ivanovo Regional Court upheld the decisions of the Oktyabrskiy District Court on appeal.

On 14 August 2006 the applicants applied to the Ivanovo Regional FMS for temporary asylum on humanitarian grounds. They claimed that there was a risk of ill-treatment and unfair trial in Uzbekistan.

On 14 November 2006 the acting head of the Ivanovo Regional Department of the FMS rejected their applications. He found that there were no humanitarian grounds warranting temporary asylum. The applicants were in good health, there was no military conflict in Uzbekistan and the situation with regard to human rights had been improving. In particular, according to the FMS report on the situation in Uzbekistan more than 300 human-rights laws had been adopted. The Supreme Court had issued a circular warning against convictions based on confessions extorted under duress or in incommunicado detention. The death penalty had been abolished as from 1 January 2008.

The applicants challenged the refusals before the Oktyabrskiy District Court of Ivanovo, repeating their fears of ill-treatment and an unfair trial in Uzbekistan. They submitted reports by the UN General Assembly, the UN Special Rapporteur on Torture and Human Rights Watch in support of their allegations.

By separate decisions of 30 November, 1, 4 and 11 December 2006 the Oktyabrskiy District Court annulled the decisions of 14 November 2006. It found that the reports submitted by the applicants contained well-documented evidence of widespread torture in Uzbekistan. The acting head of the Ivanovo Regional Department of the FMS had disregarded those reports. He had also disregarded the fact that the applicants had been granted mandate refugee status by the UNHCR. The conclusion that the applicants did not run any risk of ill-treatment if returned to Uzbekistan had been hypothetical and had not been supported by evidence. The FMS report on the situation in Uzbekistan could not be admitted in evidence because it was generic and did not contain any reference to its sources of information. The Court remitted the applicants' request for temporary asylum for a fresh examination by the Ivanovo Regional Department of the FMS.

The Ivanovo Regional Department of the FMS appealed. On 29 February 2007 the Ivanovo Regional Court upheld the decisions of the Oktyabrskiy District Court in respect of Mr Makhmudov, Mr Ulughodjaev and Mr Hamzaev. On 30 January 2007 the Ivanovo Regional Department of the FMS withdrew their appeals in respect of the remainder of the applicants.

It appears that no decision on the applicants' request for temporary asylum has been taken to date.

On 27, 31 July, and 1 August 2006 the First Deputy Prosecutor General of the Russian Federation decided to extradite the applicants to Uzbekistan. The decisions in respect of certain applicants read as follows:

The decisions in respect of the other applicants read as follows:

Extradition orders were granted in respect of aggravated murder, terrorism, the establishment and membership of an illegal organisation, the illegal possession of arms, and participation in mass disorders. However, the prosecutor refused to extradite the applicants for the attempted overthrow of the constitutional order of Uzbekistan and dissemination of materials liable to undermine public security and public order in conspiracy with others and with financial backing from religious organisations, because these were not offences under Russian criminal law.

Counsel for the applicants challenged the decisions before a court. In particular, she submitted that on 13 May 2005 the applicants were in Russia and denied any involvement in the events in Andijan. The accusations against them were unfounded and they were in fact being persecuted by the Uzbek authorities on account of their political and religious beliefs and their successful businesses. The applicants were charged with capital offences and there was a risk of their being sentenced to death following an unfair trial. They also faced torture and other forms of ill-treatment because torture was widespread in Uzbekistan and confessions were often extracted from defendants under duress. She also argued that the documents that had been submitted by the Uzbek prosecution office to support their extradition requests were flawed. Finally, she submitted that the wording of the extradition decisions violated the applicants' right to be presumed innocent.

On 29 and 30 August, 1, 4, 5, 12, 13, 14, 15 and 21 September 2006 the Ivanovo Regional Court upheld the extradition decisions. It held that the applicants were charged with offences punishable under Uzbek and Russian criminal law, that the Uzbek authorities had given assurances that the applicants would not be tortured or sentenced to death, and that the Uzbek and Russian authorities had followed the extradition procedure set out in the applicable international and domestic law. The court rejected the suggestion that the applicants would be subjected to inhuman treatment and that their rights would be violated in Uzbekistan. It further held that the issue of the applicants' guilt or innocence was not within the scope of the review by the extraditing authorities. The extradition decision only described the charges against the applicants, and did not contain any findings as to their guilt. Therefore, the presumption of innocence had not been violated.

The applicants appealed. On 28 November 2006 the Supreme Court of the Russian Federation upheld the decisions on appeal, finding that they were lawful and justified.

In his report 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:

The United Nations High Commissioner for Human Rights also stated in her report of 1 February 2006 entitled ‘Report of the United Nations High Commissioner for Human Rights and follow-up to the World conference on human rights. Report of the mission to Kyrgyzstan by the Office of the United Nations High Commissioner for Human Rights (OHCHR) concerning the events in Andijan, Uzbekistan, 13–14 May 2005’ (E/CN.4/2006/119):

In its report of 20 September 2005, ‘Uzbekistan: lifting the siege on the truth about Andijan’, Amnesty International remarked:

In conclusion, Amnesty International stated:

In his report of 18 October 2006 ‘Situation of human rights in Uzbekistan’ (A/61/526) the UN Secretary General expressed his concern about the fate of individuals extradited to Uzbekistan after the Andijan events:

In the report of 11 May 2006, entitled ‘Uzbekistan: Andijan — impunity must not prevail’, Amnesty International claimed:

The UN General Assembly resolution of 16 November 2005 ‘Torture and other cruel, inhuman or degrading treatment or punishment’ (UN Doc.:A/C.3/60/L.25/Rev.1) reads as follows:

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:

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 Manfred Nowak has stated to the Session of the UN Human Rights Council on 20 September 2006:

The UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows:

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:

The Government submitted that the applicants had been charged with serious and especially serious crimes, including terrorism and aggravated murder, committed in Uzbekistan. They had intended to avoid prosecution for those offenses by lodging their application with the Court. They had claimed that before their departure from Uzbekistan they had been persecuted and ill-treated by the Uzbek authorities, without submitting any evidence in support of their allegations. The Government invited the Court to declare the application inadmissible as an abuse of the right of application.

The Court will examine the Government's request to declare the application inadmissible from the standpoint of Article 35, which provides, in the relevant parts, as follows:

The Court reiterates that a finding of abuse might be made in such circumstances if it appears that an application was clearly unsupported by evidence or outside the scope of the Convention, or if the application is based on untrue facts in a deliberate attempt to mislead the Court (see G. J. v. Luxembourg, no. 1156/93, Commission decision of 22 October 1996). The Court is unable to find any indication of abuse in the present application. The applicants complained that their extradition to Uzbekistan would expose them to a risk of ill-treatment, that their detention pending extradition was unlawful and that the presumption of innocence had been violated by the wording of the extradition orders. They supported their allegations by considerable documentary evidence. The Government did not contest the veracity of their factual submissions, nor did they claim that any of their allegations had been based on untrue facts.

Accordingly, the Court does not consider the application to be an abuse of the right of petition. It dismisses the Government's request to declare the application inadmissible on that ground. It further notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicants complained under Article 3 of the Convention that their extradition to Uzbekistan would expose them to a threat of torture or capital punishment. Article 3 of the Convention reads as follows:

The applicants complained under Articles 5 § 4 and 13 of the Convention that they were unable to obtain effective judicial review of their detention. Given that Article 5 § 4 is a lex specialis in relation to the more general requirements of Article 13 (see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May 2006), the Court will examine the complaint under Article 5 § 4, which reads as follows:

The applicants submitted that in his decisions to extradite the applicants the First Deputy Prosecutor General of the Russian Federation had unambiguously stated that the applicants had ‘committed’ certain criminal offences. The extradition decision had been sent to the Prosecutor General's Office of Uzbekistan and had been included in the applicants' criminal files. The prosecutor's statements might influence the Uzbek courts and serve as evidence of the applicants' guilt. Therefore, their right to be presumed innocent had been violated.

The Government claimed that Article 463 § 6 of the Criminal Code prohibited the courts from assessing the applicants' guilt or innocence (see paragraph 88 above). The courts had only reviewed the lawfulness of the extradition orders, without considering whether the applicants were guilty of the imputed offences.

The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. Where no such proceedings are, or have been in existence, statements attributing criminal or other reprehensible conduct are relevant rather to considerations of protection against defamation and adequate access to court to determine civil rights and raising potential issues under Articles 8 and 6 of the Convention (see Zollmann v. the United Kingdom (dec.), no. 62902/00, 20 November 2003).

The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 35). It prohibits the premature expression by the tribunal itself of the opinion that the person ‘charged with a criminal offence’ is guilty before he has been so proved according to law (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, where the Assize Court hearing the criminal case found the prosecution time-barred but went on nonetheless to decide whether, if it had continued, the applicant would probably have been found guilty for the purposes of costs orders). It also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, § 41, where remarks were made by a minister and police superintendent to the press naming without qualification the applicant, arrested that day, as an accomplice to murder; see also Daktaras v. Lithuania, no. 42095/98, §§ 41 to 43, ECHR 2000-X; and Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002-II (extracts)).

The Court will first examine whether the applicants may be regarded in the circumstances of this case as ‘charged with a criminal offence’ for the purposes of Article 6 § 2 when the impugned extradition decisions in respect of them were issued. It observes that the applicants were not charged with any criminal offence within Russia. The extradition proceedings against them did not concern the determination of a criminal charge, within the meaning of Article 6 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X). Accordingly, at the time when the extradition decisions were made there was no criminal prosecution against the applicants in Russia of which the prosecutor's statements might be regarded as prejudging the outcome.

In the case of Zollmann (cited above) the Court did not confine itself to the finding that no criminal proceedings were pending against the applicant within the United Kingdom, it went on to examine whether the statements of a State official were linked to any criminal investigations instigated against the applicant abroad. In the present case, the Court must also ascertain whether there was any close link, in legislation, practice or fact, between the impugned statements made in the context of the extradition proceedings and the criminal proceedings pending against the applicants in Uzbekistan which might be regarded as sufficient to render the applicants ‘charged with a criminal offence’ within the meaning of Article 6 § 2 of the Convention (compare Zollmann, cited above).

The Court observes that the applicants' extradition was ordered for the purpose of their criminal prosecution. The extradition proceedings were therefore a direct consequence, and the concomitant, of the criminal investigation pending against the applicants in Uzbekistan. The Court therefore considers that there was a close link between the criminal proceedings in Uzbekistan and the extradition proceedings justifying the extension of the scope of the application of Article 6 § 2 to the latter. Moreover, the wording of the extradition decisions clearly shows that the prosecutor regarded the applicants as ‘charged with criminal offences’ which is in itself sufficient to bring into play the applicability of Article 6 § 2 of the Convention. The Court also notes that in the case of P. and R.H. and L.L. v. Austria (no. 15776/89, Commission decision of 5 December 1989, Decisions and Reports (DR) 64, p. 269) the Commission considered the applicants awaiting extradition from Austria to the United States as ‘charged with a criminal offence’ within the meaning of Article 6 § 2 of the Convention. The Court therefore concludes that Article 6 § 2 was applicable in the present case.

The Court will next examine whether the reasoning contained in the First Deputy Prosecutor General's decisions to extradite the applicants amounts in substance to a determination of the applicants' guilt contrary to Article 6 § 2.

The Court reiterates that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court emphasises the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Böhmer v. Germany, no. 37568/97, §§ 54 and 56, 3 October 2002; and Nešt'ák v. Slovakia, no. 65559/01, §§ 88 and 89, 27 February 2007).

The decision to extradite the applicants does not in itself offend the presumption of innocence (see, mutadis mutandis, X. v. Austria, no. 1918/63, Commission decision of 18 December 1963, Yearbook 6, p. 492). However, the applicants' complaint is not directed against the extradition as such, but rather against the reasoning contained in the extradition decisions. The Court considers that an extradition decision may raise an issue under Article 6 § 2 if supporting reasoning which cannot be dissociated from the operative provisions amounts in substance to the determination of the person's guilt (see, mutadis mutandis, Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, § 60; and Minelli, cited above, § 34).

The extradition decisions declared that the applicants should be extradited because they had ‘committed’ acts of terrorism and other criminal offences in Uzbekistan (see paragraphs 68 and 69 above). The statement was not limited to describing a ‘state of suspicion’ against the applicants, it represented as an established fact, without any qualification or reservation, that they had been involved in the commission of the offences, without even mentioning that they denied their involvement. The Court considers that the wording of the extradition decisions amounted to a declaration of the applicants' guilt which could encourage the public to believe them guilty and which prejudged the assessment of the facts by the competent judicial authority in Uzbekistan.

As regards the Government's argument that the domestic courts had not assessed the applicants' guilt as they were prohibited from doing so by domestic law, the Court notes that the applicants complained about the prosecutor's statements contained in the extradition decisions, not about the judicial decisions or any statements made by the courts. The Ivanovo Regional Court found that the extradition decisions only described the charges against the applicants, and did not contain any findings as to their guilt (see paragraph 72 above). However, that interpretation was at odds with the unambiguous wording of the extradition decisions, namely that the applicants had ‘committed’ the imputed offences. By upholding the extradition decisions without altering their wording the courts failed to rectify the defects of the extradition orders (compare Minelli, cited above, § 40, Hammern v. Norway, no. 30287/96, § 48, 11 February 2003; and Y v. Norway, no. 56568/00, § 45, ECHR 2003-II (extracts)).

Accordingly, there has been a violation of Article 6 § 2 of the Convention.

Each applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.

The Government submitted that no compensation for non-pecuniary damage should be awarded to the applicants because their rights had not been violated. In any event, a finding of a violation would constitute sufficient just satisfaction.

The Court considers that sufficient just satisfaction would not be provided solely by the finding of a violation and that compensation has thus to be awarded. Making an assessment on an equitable basis, it awards EUR 15,000 to each of the applicants in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

Relying on the fee agreements and the lawyer's timesheets, the applicants claimed the following amounts for their representation by Ms Sokolova before the domestic courts and the Court until 1 May 2007:

In addition, the applicants claimed EUR 494 each for their representation by Ms Sokolova which was paid on their behalf by the Human Rights Centre Memorial. The applicants submitted that their representation after 1 May 2007 had been paid out of money received from the Court by way of legal aid. Mr Alimov also claimed EUR 195 for postal expenses.

The Government submitted that the applicants had not submitted any proof that the payments had actually been made. The articles of association of the Human Rights Centre Memorial did not provide for the rendering of financial services to citizens. Therefore their financial help to the applicants had been voluntary and was not recoverable.

According to the Court's case-law, an applicant is entitled to the reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court is satisfied that the lawyer's rate and the number of hours claimed were not excessive. The fact that part of the legal fees was settled on the applicants' behalf by the Human Rights Centre Memorial is not material for the purposes of Article 41. The legal costs may be regarded as having been incurred by the applicants in the sense that they, as clients, made themselves legally liable to pay their lawyer on an agreed basis (compare Dudgeon v. the United Kingdom (Article 50), judgment of 24 February 1983, Series A no. 59, § 21). The Court further notes that the applicants submitted receipts showing the amount of postal expenses. Having regard to the information in its possession, the Court considers it reasonable to award the following amounts to the applicants for their legal representation by Ms Sokolova, plus any tax that may be chargeable to the applicants on them:

The Court also awards Mr Alimov EUR 195 for postal expenses, plus any tax that may be chargeable on that amount.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.