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|Publication:||[not yet received]|
|Title:||Gaforov v. Russia|
|Date of reference by Commission:|
|Date of reference by State:|
|Date of Judgment:||21-10-2010|
|Conclusion:||Violation of article 3|
Violation of article 5-1
Violation of article 5-4
|Keywords:||INHUMAN TREATMENT OR PUNISHMENT / TORTURE / LAWFUL ARREST OR DETENTION / TAKE PROCEEDINGS|
Russia would violate the Convention if it extradited a Tajik national to Tajikistan
The applicant, Abdurazok Gaforov, is a Tajikistani national who was born in 1973 and lived before his arrest in the town of Khudzhand, Tajikistan. Since he became unemployed in 2005, he started earning his living by printing various texts for people, using his computer; the texts printed included academic papers and extracts from the Koran. In 2005, several people were arrested in Khudzhand on suspicion of belonging to Hizb ut-Tahrir ("HT"), a transnational Islamic organisation banned in Russia, Germany and some Central Asian republics. Mr Gaforov denied belonging to HT, yet he learned that some of the arrested people had identified him as an HT member who had printed HT-related materials from the Internet. He was arrested in February 2006 following the opening of criminal proceedings against him on suspicion of membership of an extremist organisation. In particular, he was suspected of having actively worked with HT by printing out leaflets and religious literature with a view to their dissemination.
According to Mr Gaforov, after his arrest he was kept in a basement of the Ministry of National Security for about three months, where he was systematically beaten and tortured, at least six times, with electricity. He was hardly fed, had no bed and was not allowed to use the toilet for prolonged periods. He managed to escape in May 2006, hid until December that year in Tajikistan, and after spending some time in Kyrguzstan, moved to Russia in May 2007. His name was put on a wanted list in Tajikistan and the criminal proceedings against him were suspended. Mr Gaforov was arrested in Moscow on 5 August 2008 as someone wanted by the Tajikistani authorities. A request for his extradition to Tajikistan was received, in September 2008, by the Russian Prosecutor General's Office which ordered his extradition in December 2008. Mr Gaforov challenged, unsuccessfully, that decision, claiming he would be tortured if extradited. His subsequent further related appeals were also dismissed. In October 2008, Mr Gaforov applied for asylum, which was refused in December of the same year. All his appeals against it were dismissed.
The Tajikistani authorities submitted assurances in February 2009 that they would not persecute Mr Gaforov on political, ethnic, linguistic, racial or religious grounds and that he would not be tortured or otherwise ill-treated. Mr Gaforov was placed in custody pending extradition in August 2008. The courts ordering his detention did not set a time-limit for it. He complained, unsuccessfully, to various courts and to the Prosecutor General about having been detained unlawfully, in excess of the maximum two-month period set in law.
Relying on Articles 3, 5 §§ 1 and 4, and on Article 6 § 2, Mr Gaforov complained of the risk that he be tortured if extradited to Tajikistan, as well as about having been detained unlawfully, not having had the possibility to effectively challenge before a judge his detention and about the decisions related to his extradition having breached his right to be presumed innocent.
The Court was satisfied that Mr Gaforov had complained of the risk of ill-treatment in case of extradition to Tajikistan both in the extradition and asylum proceedings. However, the authorities deciding on his extradition and asylum had disregarded those complaints, thus having failed to adequately assess the risk of ill-treatment if he were to be extradited.
Examining whether there had been a real risk of ill-treatment, the Court noted that evidence from objective sources had indicated that torture in police custody in Tajikistan had been systematic and widespread. Mr Gaforov was wanted by the Tajikistani authorities on account of his alleged participation in Hizb ut-Tahrir, and, as the Court had itself found in a recent judgment, there had been serious reasons to believe that Hizb ut-Tahrir supporters were persecuted in Tajikistan. The Court found that Mr Gaforov's submissions concerning his ill-treatment while in custody in Tajikistan were consistent and the credibility of his account was supported by evidence analysed by the Court. Given that the diplomatic assurances presented by the Tajikistani authorities were not in themselves sufficient to ensure that Mr Gaforov would not be ill-treated, the Court concluded that, if extradited, he could seriously risk ill-treatment. Accordingly, the Court held that if the extradition order were to be implemented, Russia would be in violation of Article 3.
Article 5 § 1
The Court observed that Mr Gaforov had been detained for the first time in August 2008 on the basis of an arrest warrant issued by a Tajik court; he was placed in custody for a second time in September 2008 following a formal request for his extradition. In the absence of any court decision extending his detention, however, after the expiry of the six-month period authorised in law, namely as from 4 February 2009, he had been detained in breach of the applicable Russian criminal law provisions. Consequently, Mr Gaforov's detention pending extradition could not be considered lawful, and there had therefore been a breach of Article 5 § 1.
Article 5 § 4
The Court found that the applicable Russian law did not make it possible for Mr Gaforov to have the lawfulness of his detention examined by a court throughout the time during which he had been detained pending extradition. There had therefore been a violation of Article 5 § 4.
Under Article 41 (just satisfaction) of the Convention, the Court held that Russia was to pay the applicant 15,000 euros (EUR) in respect of non-pecuniary damage, EUR 6,825 for costs and expenses.
|Last Modified: 13-01-2014 16:18:19 (Documentation SIM)