Information Note on the Court’s case-law 74

April 2005

Shamayev and Others v. Georgia and Russia - 36378/02

Judgment 12.4.2005 [Section II]

Article 3

Inhuman treatment

Physical and psychological suffering as a result of the manner in which extradition orders were enforced: violation

Extradition

Extradition of Chechen origin persons to Russia and alleged risk of ill-treatment as a result thereof: no violation

Al leged risk of ill-treatment if an extradition order adopted two years before was to be enforced: violation in event of enforcement

Article 5

Article 5-2

Information on reasons for arrest

Extradition of persons who were not informed that they would be subje ct to this measure: violation

Article 5-4

Take proceedings

Extradition of persons who were not informed that they would be subject to this measure: violation

Article 34

Hinder the exercise of the right of application

Extradition despite provisional indication by the Court under Rule 39 to suspend extradition: violation

Hindering of the effective exercise of the right of petition as a result of State’s attitude: violation

Article 38

Examination of the case

Obstacles by the State to the carrying out of a fact-finding mission by the Court: failure to comply with Article 38

Facts : The applicants were arrested in Georgia in August 2002 and charged, inter alia , with crossing the border illegally; they were placed in pre-trial detention. They were prosecuted in Russia for various offences, one of which was subject to the death penalty. The Russian authorities applied for their extradition. Since Georgian criminal law prohibited extradition of an individual to a country where he or she would be liable to the death penalty, the Georgian public prosecution service sought guarantees on this matter. They were assured that the applicants would not be sentenced to death in Russia, given the moratorium on capital punishment in force in Russia for the previous six years and a judgment by the Constitutional Court prohibiting courts from imposing such a sentence, and would not be tortured or ill-treated. In October 2002 the Georgian authorities agreed to the extradition of five applicants. Special troops used force to remove eleven prisoners from their cell with a view to extraditing four of them, in circumstances which were the subject of different accounts before the Court; the prisoners had previously been invited by prison wardens to lea ve the cell peacefully. Five applicants were handed over to the Russian authorities on 4 October 2002, in spite of the Court’s indication under Rule 39 of the Rules of Court that the authorities should provisionally refrain from extraditing the persons con cerned. In Russia the extradited applicants were held incommunicado . The Court obtained guarantees from the Russian Government in favour of the applicants and an undertaking that it would have unimpeded access to them through correspondence and in the even t of an on-site visit. The interim measure that had been indicated to Georgia was consequently lifted. In application of Rule 39, the Court indicated to the Russian Government that the extradited prisoners’ lawyers should be allowed to meet them in prison with a view to preparing a hearing before the Court. The Russian Government did not comply with this interim measure and challenged the validity of the lawyers’ powers to represent the applicants. The extradition of the other applicants, agreed to by the G eorgian authorities in November 2002, was suspended or cancelled by the courts. Two applicants were arrested by the Russian authorities in February 2004 after disappearing in Tbilisi. The Court decided to carry out a fact-finding visit to Georgia and Russi a. Given the unresponsive attitude of the Russian authorities, only the Georgian part of the visit was carried out.

Law : Preliminary objections (dismissal) – The Russian Government argued that it was impossible to examine the case on the merits, called f or the proceedings to be cancelled and challenged the extradited applicants’ application to the Court. As to the applicants’ correct representation before the Court, which was also challenged by the Russian Government, while it was true that the extradited applicants had not themselves signed documents granting power of attorney to the representatives before the Court, this was explained by the situation (extradition under extremely urgent procedure with no possible access to the prisoners) and could not th erefore be held against them; the applicants had subsequently claimed to approve of their representatives’ actions before the Court or had not opposed or challenged them, and the Russian Government had removed any possibility of objective verification of t heir submission by failing to comply with the Court’s interim measure, intended to remove any doubts in this respect and to enable the applicants to be heard.

Alleged risks of being sentenced to death penalty and of ill-treatment following extradition to Russia : Before taking a decision on the extradition request, the Georgian authorities sought assurances from the Russian authorities with the aim of ensuring that the applicants would be protected against those risks. The extradition requests were granted on the strength of explicit guarantees provided by the Russian Procurator General in respect of each of the applicants and there was nothing to cause the Georgian authorities to doubt their credibility. The Georgian authorities had only agreed to the extra dition of those applicants whose identity could be established and who allegedly held Russian passports at the time of their arrest, and the applicants had not been sentenced to the death penalty in Russia. The photographs of the extradited applicants and their cells, the video recording made in prison and the various medical certificates submitted by the Russian Government did not indicate that the extradited applicants had been subjected to treatment contrary to Article 3 after their extradition; the two applicants who had been in written contact with the Court had not made such complaints. Admittedly, the majority of the applicants had been unable to inform either the Court or their representatives about their situation in Russia following extradition. Th eir representatives had argued that violence was practised against persons of Chechen origin, but had merely referred to the general context of the armed conflict in Chechnya. The evidence submitted by them did not establish that the extradited applicants’ personal situations could have exposed them to risks contrary to Article 3. The possibility that the applicants could have been at risk of ill-treatment was not to be ruled out, although they had submitted no evidence of antecedents to that effect, but th e mere possibility of ill-treatment did not in itself entail a violation of Article 3, especially as the Georgian authorities had obtained guarantees to that effect from their Russian counterparts. In short, the facts of the case did not make it possible t o assert “beyond reasonable doubt” that there were substantial grounds at the time when the Georgian authorities took their decision for believing that extradition would expose the applicants to a genuine and personal risk of “inhuman” or “degrading” treat ment.

Conclusion : no violation of Article 3 by Georgia as regards the five extradited applicants (unanimously).

Article 3 – The Court examined the case of the applicant in relation to whom an extradition order had been signed in November 2002 and suspended following an appeal; that order was subject to enforcement at the close of pending proceedings. In the light of events subsequent to November 2002, set out in documentary material which the Court had obtained of its own motion, the Court considered that t he assessments on which the decision had been taken to extradite that applicant no longer sufficed, at the date on which it examined the case, to exclude all risk of ill-treatment prohibited by the Convention.

Conclusion : there would be a violation by Geor gia of Article 3 if the decision to extradite Mr Gelogayev to Russia, dated November 2002, were to be enforced (six votes to one).

Article 2 – There was nothing to justify the assertion that, at the time when the Georgian authorities took the decision to e xtradite, there were serious and well-founded reasons to believe that extradition would expose the applicants to a real risk of extrajudicial execution.

Conclusion : no violation by Georgia in respect of the five extradited applicants (unanimously).

Use of physical force when removing applicants from the cell with a view to extradition : The applicants had resisted removal from their cell and had armed themselves, among other items, with bricks and metal objects. The involvement of about fifteen members of th e special forces, armed with truncheons, could therefore reasonably have been considered necessary to ensure safety and prevent disorder. However, the authorities’ attitude and the way in which they had managed the extradition enforcement procedure had inc ited the applicants to resist. Firstly, the applicants had not been officially informed of their extradition, and had only learnt via the media that the extradition of some of them was imminent; secondly, the prison wardens had used deception by giving fic titious reasons for requiring them to leave the cell. Finally, the applicants, who had legitimate grounds to fear ill-treatment and danger to their lives and had been left in ignorance as to the names of those who would be extradited, found themselves ensn ared by the authorities, who had thus placed them before a fait accompli. In such circumstances, the use of physical force could not be regarded as justified by the prisoners’ conduct. Having regard to the lack of procedural guarantees, the ignorance in wh ich the applicants were kept with regard to their fate, and the distress and uncertainty to which they were exposed without good reason, the manner in which the Georgian authorities had proceeded to enforce the extradition decisions raised in itself a prob lem under Article 3. In addition to this mental suffering, the injuries inflicted on certain applicants by the special forces were serious and there had been no medical examination and treatment in good time. That suffering was such as to amount to inhuman treatment.

Conclusion : violation of Article 3 by Georgia in respect of the eleven applicants (six votes to one).

Articles 5 § 2 and 5 § 4 – The Georgian authorities had not informed the applicants that they were being held pending extradition and the appl icants’ lawyers had not had access to the extradition files, in violation of Article 5 § 2. The same fact had deprived of all substance the applicants’ right to appeal against their detention in the context of extradition proceedings, as set out in Article 5 § 4.

Conclusion : violations by Georgia in respect of all the applicants (unanimously).

Article 5 § 1– The Court held, unanimously, that this Article had not been violated by Georgia.

Article 13 taken together with Articles 2 and 3 – The applicants extr adited in October 2002 and their lawyers had not been informed of the extradition orders made against them, and the relevant authorities had unjustifiably hindered the exercise of the right to seek a remedy that should, in theory, have been available to th em.

Conclusion : violation by Georgia in respect of five applicants (six votes to one).

Article 34 (Georgia) – After their extradition, the applicants were held incommunicado . The Russian authorities had not permitted the applicants’ representatives before the Court to visit them, in spite of the Court’s explicit indication of its intention in that connection, and the Court had been unable to carry out its fact-finding visit to Russia in order to question them. On the sole basis of a few written communicati ons with the extradited applicants, the Court had not been in a position to complete its examination of the merits of their complaints against Russia. The gathering of evidence had thus been frustrated. The difficulties faced by those applicants after thei r extradition had seriously hindered the effective exercise of their right to appeal as guaranteed under Article 34. In failing to comply with the indication to suspend the extradition, given by the Court under Rule 39 of its Rules of Court, Georgia had fa iled to discharge its obligations.

Conclusion : violation by Georgia in respect of four applicants (six votes to one).

The extradited applicants alleged a violation of Article 3 and Article 6 § 1 and  § 3 in respect of Russia, where they had been held in is olation and without contact with their representatives. The Court had been unable to establish the facts in Russia despite the fact-finding visit that it had decided to carry out in application of Article 38 § 1(a), and the materials which had been submitt ed to it by the parties did not enable it to decide on the opposing statements made by the parties with regard to Russia’s alleged violation of Article 3 and Article 6 § 1 and § 3. Accordingly, it examined whether, by making it impossible for the Court it to carry out those tasks, Russia had fallen short of its obligations under Articles 34 and 38 § 1(a).

Article 38 § 1 – By refusing to allow the Court’s delegates access to the applicants held in Russia, on the principal ground that their case was pending before the domestic courts, and by raising obstacles to the Court’s fact-finding mission, the Russian Government had unacceptably hindered the establishment of part of the facts in the case and had therefore failed to discharge their obligations under Article 38 § 1 (a) of the Convention.

Conclusion : failure by Russia to discharge its obligations (unanimously).

Article 34 (Russia) – The Russian Government had failed to honour the commitments they had given to the Court in November 2002 with regard to access to those applicants who were being held incommunicado and, despite the Court’s requests to that effect, the applica nts’ representatives had never had access to them. The written communications with the extradited applicants had been insufficient to ensure effective examination of an appreciable portion of their application and the Russian Government had on several occa sions expressed doubt as to their intention to apply to the Court. The Court itself had sent letters to the extradited applicants, but the result gave rise to serious doubt as to the extradited applicants’ freedom to correspond with the Court and to put fo rward their complaints in greater detail. Furthermore, the Court had been unable to question in Russia the applicants who had disappeared a few days before the arrival of the Court’s delegation in Tbilisi and who were arrested three days later by the Russi an authorities. The measures taken by the Russian Government had hindered those applicants’ effective exercise of the right to apply to the Court.

Conclusion : violation by Russia in respect of seven applicants (six votes to one).

Article 41 – The Court ma de awards for non-pecuniary damage and for costs and expenses.

In addition, Russia was to repay the costs incurred by the Court on account of the cancellation of the fact-finding visit, since the cancellation was attributable to it.

© Council of Europe /European Court of Human Rights This summary by the Registry does not bind the Court.

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