I correctly predicted that there was a violation of human rights in CHEBANU v. RUSSIA.

Judgment

THIRD SECTION

CASE OF NOVOSELOV v. RUSSIA

(Application no. 44882/07)

JUDGMENT

STRASBOURG

10 January 2017

This judgment is final but it may be subject to editorial revision. In the case of Novoselov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 44882/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbekistan national, Mr Aleksandr Nikolayevich Novoselov (“the applicant”), on 12 September 2007. 2. The applicant was represented by Ms I.V. Zhuravleva, a lawyer practising in Perm. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicant claimed that his detention pending extradition had been unlawful and that he had been unable to obtain effective judicial review of his detention. 4. On 6 May 2011 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969. 6. On 27 June 2005 a criminal investigation was initiated into a theft allegedly committed by the applicant in the Republic of Uzbekistan. On 12 September 2005 an investigator ordered the applicant’s arrest and placed him on the list of fugitives. 7. It appears that in the meantime the applicant moved to the Russian town of Perm. On 21 January 2007 he was arrested there. On 23 January 2007 a prosecutor issued a decision to detain the applicant pending resolution of the extradition request in his regard. The decision referred to Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the Minsk Convention”). It did not indicate that it was amenable to appeal. On 25 January 2007 the prosecutor wrote to the prison authorities asking them to hold the applicant in detention until further notice. 8. On 19 February 2007 the Uzbek authorities requested the applicant’s extradition. On 6 March 2007 the prosecutor applied to the court for authorisation of the applicant’s detention pending extradition. He again relied on Article 61 of the Minsk Convention and Articles 97‐101, 108 and 466 § 1 of the Code of Criminal Procedure of Russia (“the CCrP”). On 9 March 2007 the Leninskiy District Court of Perm authorised the applicant’s detention pending extradition. The District Court did not set a limit on the length of the applicant’s detention. It referred to Article 108 of the CCrP. On 27 March 2007 the Perm Regional Court upheld the decision on appeal. No court subsequently reviewed or extended the applicant’s detention. 9. It appears that on 10 July 2007 the applicant was handed over to the authorities of the Republic of Uzbekistan. II. RELEVANT DOMESTIC LAW AND PRACTICE
10. For a summary of the relevant domestic and international law on the issue of detention pending extradition see, Abdulkhakov v. Russia, no. 14743/11, §§ 78-89, 2 October 2012. THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
11. The applicant complained that his detention pending extradition had been unlawful. He relied on Article 5 § 1 (f) of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
A. Submissions of the parties
12. The Government conceded that the applicant’s detention from 23 January 2007 to 9 March 2007 in the absence of any court authorisation had been unlawful. They argued that the length of the applicant’s detention pending extradition had not been excessive. 13. The applicant maintained his position regarding the unlawfulness of his detention pending extradition. He considered the length of his detention pending extradition proceedings excessive. B. The Court’s assessment
1. Admissibility
14. The Court notes that the applicant’s complaint under Article 5 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits
15. The Court has previously noted that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be respected. The requirement of “quality of law” in relation to Article 5 § 1 implies that, where a national law authorises a deprivation of liberty, it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III, and Khudoyorov v. Russia, no. 6847/02, § 125, ECHR 2005-X (extracts)). 16. In a number of its judgments, the Court has already found that the provisions of the Russian law governing the detention of persons pending extradition were neither precise nor foreseeable in their application and fell short of the “quality of law” standard required under the Convention (see, for example, Nasrulloyev v. Russia, no. 656/06, § 77, 11 October 2007; Ismoilov and Others v. Russia, no. 2947/06, § 140, 24 April 2008; Ryabikin v. Russia, no. 8320/04, § 130, 19 June 2008; Muminov v. Russia, no. 42502/06, § 121, 11 December 2008; Khudyakova v. Russia, no. 13476/04, § 73, 8 January 2009; Konontsev v. Russia, no. 19732/04, § 26, 29 July 2010; and Abdulkhakov, cited above, § 181). (a) Detention from 23 January 2007 to 19 February 2007
17. Turning to the circumstances of the present case, the Court notes that the applicant was initially detained pursuant to the prosecutor’s decision of 23 January 2007 referring to Article 61 of the Minsk Convention. The Court has previously found that Article 61 of the Minsk Convention did not establish any procedural rules to be followed when placing a person in custody prior to receipt of an extradition request (see Abdulkhakov, cited above, § 171). It concluded that Article 61 of the Minsk Convention could serve as a legal basis for detention only in conjunction with the corresponding domestic legal provisions establishing the grounds and the procedure for ordering detention, as well as applicable time-limits (ibid.). The Court also observed that Russian law does not contain any specific legal provisions establishing a procedure for ordering detention pending receipt of an extradition request (ibid., § 172). 18. It follows that from 23 January 2007 to 19 February 2007 the applicant was in a legal “vacuum” that was not covered by any domestic legal provision clearly establishing the grounds for his detention or the procedure and the time-limit applicable to that detention pending the receipt of an extradition request. (b) Detention from 19 February 2007 to 9 March 2007
19. On 19 February 2007 the Uzbek authorities requested the applicant’s extradition. It appears that the request was not accompanied by an Uzbek court detention order. The applicant’s detention in Russia was therefore governed by Article 466 § 1 of the CCrP which requires that, in the absence of a detention order from a foreign court, a person’s detention should be authorised in accordance with the procedure established in the Code, that is to say, by a Russian court (see Nasrulloyev, § 72, and Konontsev, § 24, both cited above). However, contrary to the requirements of that provision, the applicant’s detention was not confirmed by a Russian court. Therefore, the applicant’s detention between 19 February 2007 and 9 March 2007 was not in accordance with a “procedure prescribed by law” as required by Article 5 § 1 of the Convention (see Konontsev, cited above). (c) Detention from 9 March 2007 until 10 July 2007
20. As for the period after the judicial decision of 9 March 2007 authorising the applicant’s detention as of that date, the Court notes that it has already established in a number of judgments that, at the material time, the provisions of the Russian law governing detention pending extradition were neither precise nor foreseeable in their application and did not meet the “quality-of-law” requirement (see, for example, Nasrulloyev, §§ 72-77, and Ismoilov and Others, § 140, both cited above). The Court upholds those findings and reiterates that in the absence of clear legal provisions establishing the procedure for ordering and extending detention pending extradition and setting limits for the length of such detention, the deprivation of liberty to which the applicant was subjected was not circumscribed by adequate safeguards against arbitrariness. The national system failed to protect the applicant from arbitrary detention, and his detention cannot be considered “lawful” for the purposes of Article 5 of the Convention. (d) Conclusion
21. The Court finds that the applicant’s detention from 23 January 2007 to 19 February 2007 and from 9 March 2007 to 10 July 2007 was based on legal provisions that did not meet the Convention’s “quality of law” requirements. Furthermore, his detention from 19 February 2007 to 9 March 2007 was not in accordance with a “procedure prescribed by law” as required by Article 5 § 1 of the Convention. In these circumstances, the Court does not need to consider separately whether the extradition proceedings were conducted with due diligence. 22. The Court finds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the above-mentioned periods of detention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
23. The applicant complained that he had been unable to obtain speedy judicial review of the lawfulness of his detention. He relied on Article 5 of the Convention, which provides as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Submissions of the parties
24. The Government asserted that the applicant could have challenged the prosecutor’s detention decision of 23 January 2007 before a court under Article 125 (Chapter 16) of the CCrP, but had failed to do so. They also argued that the applicant had had the right to appeal against the court detention order of 9 March 2007 and indeed had made use of this right. 25. The applicant claimed that the prosecutor’s decision of 23 January 2007 had not indicated that it had been amenable to appeal. He further argued that he had been unable to obtain judicial review of his detention until the court hearing of 9 March 2007 held to consider the prosecutor’s application to extend his detention. B. The Court’s assessment
1. Admissibility
26. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 2. Merits
27. The Court has already established on numerous occasions that, at the material time, persons detained in Russia pending their extradition did not have at their disposal any procedure for judicial review of the lawfulness of their detention (see, among others, Nasrulloyev, §§ 88-90; Ismoilov and Others, §§ 147-52; Ryabikin, §§ 138-40; Muminov, §§ 114-16, all cited above; and Dzhurayev v. Russia, no. 38124/07, §§ 60-61 and 63, 17 December 2009). 28. In particular, regarding the suggested remedy under Article 125 of the CCrP, the Court has found (see, for example, Nasrulloyev, § 89; Muminov, § 115; and Dzhurayev, § 61, all cited above) that that provision conferred standing solely on “parties to criminal proceedings”. The applicant’s situation is similar to that of the applicants in the above cases, where it was established that the applicants could not have the lawfulness of their detention reviewed by a court under Article 125 of the CCrP because they had no formal status under Russian criminal law, given that there was no criminal case against them in Russia. The Court is therefore not persuaded that Article 125 of the CCrP could have been applied in the applicant’s case, as suggested by the Government. 29. Moreover, the Court reiterates that it has already found in several previous cases that those detained pending extradition could not initiate judicial review of the lawfulness of their detention (see, for example, Nasrulloyev, § 88; Ismoilov and Others, § 151; and Muminov, § 114, all cited above). The present case does not differ, in that the applicant was unable to obtain judicial review of his detention on his own initiative in the absence of a request by a prosecutor for an extension of the custodial measure. 30. In these circumstances, the Court is not satisfied that the provisions of domestic law secured the applicant’s right to initiate a procedure by which the lawfulness of his detention would be examined by a court. 31. There has therefore been a violation of Article 5 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
32. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
33. The applicant’s representative claimed 10,000 euros (EUR) in respect of non-pecuniary damage on behalf of her client. She also noted in her most recent observations that after the applicant’s extradition to Uzbekistan she had lost contact with him. 34. The Government submitted that the amount claimed was excessive and suggested that a finding of a violation of the Convention would in itself constitute sufficient just satisfaction. 35. The Court awards the applicant EUR 7,500 in respect of non‐pecuniary damage. 36. In view of the applicant’s extradition to Uzbekistan, the Court is concerned, at the outset, about how the respondent State will discharge its obligation of payment of just satisfaction. The Court has already been confronted with similar situations involving applicants who were no longer contactable after their removal from the respondent State. In some of those cases, it has indicated that the respondent State must secure its payment of just satisfaction by facilitating contact between the applicants, their representatives and the Committee of Ministers (see Muminov v. Russia (just satisfaction), no. 42502/06, § 19 and point (c) of the operative part, 4 November 2010, and Kamaliyevy v. Russia (just satisfaction), no. 52812/07, § 14 and point 1 (c) of the operative part, 28 June 2011). 37. Turning to the present case, the Court observes that after the applicant’s transfer to Uzbekistan, there was no contact between him and his representative before the Court. In view of that fact, the Court considers that the respondent State shall secure, by appropriate means, the execution of the just satisfaction award, in particular, by facilitating contact between the applicant, on the one hand, and the Committee of Ministers of the Council of Europe acting under Article 46 of the Convention, the applicant’s representative in the Convention proceedings or any other person entitled or authorised to represent the applicant in the enforcement proceedings, on the other. B. Costs and expenses
38. The applicant did not submit any claim under this head; the Court therefore makes no award in this respect. C. Default interest
39. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 1 (f) of the Convention;

3. Holds that there has been a violation of Article 5 § 4 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non‐pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
(c) that the respondent State shall secure, by appropriate means, payment of the above amount, in particular by facilitating contact between the applicant, on the one hand, and the Committee of Ministers of the Council of Europe, the applicant’s representative in the Convention proceedings or any other person entitled or authorised to represent the applicant in the enforcement proceedings, on the other. 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident