FIFTH SECTION

Application no. 41651/10 Umid KHAMROEV and others against Ukraine lodged on 23 July 2010

STATEMENT OF FACTS

The first applicant, Mr. Umid Khamroev , was born in 1976 and currently resides in Sweden.

The second applicant, Mr. Kosim Dadakhanov , was born in 1966 and currently resides in Ukraine.

The third applicant, Mr. Utkir Akramov , was born in 1985 and currently resides in the United States of America.

The fourth applicant, Mr. Shodilbek Soibzhonov , was born in 1970 and currently resides in Ukraine.

The first and third applicants are Uzbek nationals and the fourth applicant is a Russian national. The second applicant indicated that he was a Russian national, but from his submissions it appears that he was deprived of that nationality in November 2009.

All four applicants sought on several occasions to obtain refugee status in Ukraine but to no avail.

On 23 July 2010 the applicants requested the European Court of Human Rights to prohibit the Ukrainian Government from extraditing them to Uzbekistan.

On 26 July 2010 the President of the Chamber indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that the applicants should not be removed to Uzbekistan.

On 23 August 2010 the President of the Chamber decided to discontinue application of the interim measure indicated under Rule 39 of the Rules of Court.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Mr Khamroyev

Since 1999 the applicant was registered by the Uzbek police as a person suspected of prohibited religious activities.

On 10 April 2004 the applicant was arrested by the Samarkand police on suspicion of distributing prohibited religious literature. According to him, the police tortured him to force him to confess. The applicant managed to escape on the next day.

On 3 September 2004 the applicant was placed on the list of wanted persons.

On 11 May 2004 the applicant arrived in Ukraine.

On 15 June 2010 the applicant was arrested by the police and security service officers as a person who had been on international list of wanted persons. The same day the Irpin police department applied to the court for the applicant ’ s arrest under Article 106 of the Code of Criminal Procedure.

On 17 June 2010 the Irpin Local Court of Kyiv region (the Local Court) extended the applicant ’ s detention up to ten days.

On 22 June 2010 the applicant challenged the decision of 17 June 2010 on the ground that under the amendments to the Code of Criminal Procedure of 17 June 2010 the person could not be held for more than seventy-two hours without the court decision on his arrest with a view to extradition.

On 24 June 2010 the Local Court ordered under the amended Code of Criminal Procedure the applicant ’ s detention for forty days pending the receipt of the extradition request from the Uzbek authorities. On the next day, the applicant appealed against that decision.

On 30 June 2010 the Kyiv Regional Court of Appeal upheld the decision of the first-instance court.

On 23 July 2010 the Shevchenkivsky Local Court of Kyiv ordered the applicant ’ s detention pending extradition upon an application of the General Prosecutor ’ s Office. The decision contained no time-limit, but mentioned that the applicant was to be detained until the extradition proceedings were completed and the issue of his actual transfer to the Requesting State had been decided. On 9 August 2012 the Kyiv City Court of Appeal upheld the decision of the first-instance court.

On 16 December 2011 the UNHCR Regional Representation for Belarus, Moldova and Ukraine informed the Prosecutor General of Ukraine that UNHCR recognised Mr Khamroyev , Mr Dadakhanov and Mr Akramov as refugees under its mandate.

On 24 January 2012 the maximum period of extradition detention expired and the applicant was released.

On 31 January 2012 the applicant was resettled to Sweden by the UNHCR.

On 22 February 2012 the GPO informed one of the applicant ’ s lawyers that it decided not to extradite the applicant to Uzbekistan.

2. Mr Dadakhanov

In 1993 the applicant went to Russia as a teacher of Islam.

In 1997 he returned to Uzbekistan to visit his family. There he was arrested for five days under falsified accusations of hooliganism. After 11 days of detention he was released only when he had signed a paper that he would collaborate with the Uzbek National Security Service. After release he left Uzbekistan for Russia and in 2000 obtained Russian nationality.

On 28 September 2000 the Namangan Regional Police Department of Uzbekistan instituted criminal proceedings against the applicant for anti-constitutional activities, creation of a criminal group and participation in extremist organisations.

On 4 October 2000 the Namangan Regional Prosecutor ’ s Office ordered the applicant ’ s arrest. The applicant was placed on the international list of wanted persons.

In November 2009 the applicant ’ s Russian nationality was annulled on the ground that he had submitted untrue information when applying for it.

On 3 November 2009 the applicant moved to Ukraine.

On 29 June 2009 the applicant was apprehended by the officers of the Bila Tserkva Police Department under the international arrest warrant.

On 2 July 2010 the Bila Tserkva Local Court ordered the applicant ’ s detention for up to thirty days until the receipt of the extradition request. This decision was upheld by the Kyiv Regional Court of Appeal on 9 July 2010.

On 29 July 2010 the Shevchenkivskiy District Court ordered the applicant ’ s detention pending extradition for up to eighteen months until the extradition proceedings were completed and the issue of his actual transfer to the Requesting State was decided. This decision was upheld by the Kyiv City Court of Appeal on 9 August 2010.

On 29 January 2012 the maximum period of extradition detention expired and the applicant was released.

On 15 February 2012 the applicant re-applied for refugee status to a newly established migration authority.

On 10 August 2012 the Kyiv Migration Service refused the applicant ’ s application for the refugee status.

3. Mr Akramov

In 2004 the applicant went to Russia to work. There he met religious people and became religious himself.

In 2007 the applicant went to Uzbekistan to visit his family. After his visit, his cousin was arrested on suspicion of religious extremism. His brother was eventually convicted to long term of imprisonment.

On 4 September 2007 the Kashkadar Security Service Department in Uzbekistan instituted criminal proceedings against the applicant for participation in unconstitutional extremist organisation.

On 17 August 2009 the applicant, being afraid to be arrested and sent to Uzbekistan, left Russia for Ukraine.

On 29 March 2010 the Uzbek law-enforcement authorities placed the applicant on the international list of wanted persons.

On 8 July 2010 the applicant was apprehended by the officers of the Kyiv- Svyatoshyn Police Department under the international arrest warrant.

On 12 July 2010 the Kyiv- Svyatoshyn Local Court ordered the applicant ’ s detention for up to thirty days until the receipt of the extradition request.

On 19 July 2010 the Kyiv Regional Court of Appeal quashed the decision of 12 July 2010 and remitted the case to the first-instance court for a fresh examination.

On 3 August 2010 the Kyiv- Svyatoshyn Local Court ordered the applicant ’ s detention for up to forty days until the receipt of the extradition request.

On 4 August 2010 the Shevchenkivsky Local Court of Kyiv ordered the applicant ’ s detention pending extradition upon an application of the General Prosecutor ’ s Office. The decision contained no time-limit, but mentioned that the applicant was to be detained until the extradition proceedings were completed and the issue of his actual transfer to the Requesting State was decided.

On 4 February 2012 the maximum period of extradition detention expired.

On 6 February 2012 the applicant was released.

On 16 February 2012 the applicant was served with the decision by the General Prosecutor ’ s Office of 10 February 2012 about refusal of his extradition to Uzbekistan.

On 11 October 2012 the applicant was resettled to the United States of America.

4. Mr Soibzhonov

In 1998 the applicant moved from Uzbekistan to Russia.

In 2004 the applicant obtained Russian nationality.

In January 2009, during his visit to Uzbekistan, he was taken by the police for questioning about his religious activities and contacts in Moscow.

On 25 July 2009 the Andizhan Police Department in Uzbekistan instituted criminal proceedings against the applicant on suspicion of his involvement in extremist organisation.

On 28 August 2009 the applicant ’ s arrest was ordered and he was placed on the international list of wanted persons.

On 20 April 2010, being afraid of expulsion to Uzbekistan, the applicant left Russia for Ukraine.

On 2 July 2010 the applicant was apprehended by the Bila Tserkva Police Department under the international arrest warrant. The same day he was released and summoned for the next day.

On 6 July 2010 the applicant was arrested and on 9 July 2010 the Bila Tserkva Local Court ordered his detention for up to thirty days until the receipt of the extradition request.

On 19 July 2010 the Kyiv Regional Court of Appeal quashed the decision of 12 July 2010 and remitted the case to the first-instance court for a fresh examination.

On 5 August 2010, in absence of any extradition request, the applicant was released due to expiry of the thirty-day detention ordered by the court.

On 7 October 2010 the GPO of Ukraine decided to refuse the extradition of the applicant to Uzbekistan on the ground that the actions with which he was charged were not an offence under Ukrainian criminal law.

The applicant was accepted for resettlement as a refugee in the United States of America. However, he has not left Ukraine yet.

B. Relevant domestic law and practice

Relevant domestic law and practice pertinent to the case are summarised and cited in the judgments of Molotchko v. Ukraine (no. 12275/10 , §§ 91 and 92, 26 April 2012) and Soldatenko v. Ukraine (no. 2440/07, §§ 21-25, 23 October 2008).

COMPLAINTS

The applicants complained under Article 5 § 1 (f) of the Convention that the Ukrainian authorities had not been permitted to deprive them of their liberty as they must have been aware from the outset that the applicants ’ extradition to Uzbekistan would be impossible as it would be contrary to Article 3 of the Convention. Furthermore, they complained that their deprivation of liberty after the Court had indicated interim measures to the Ukrainian Government under Rule 39 of the Rules of the Court did not correspond to the aims of Article 5 § 1 (f), given that their extradition could not be carried out. They further complained that their detention was unlawful as it was contrary to international obligations of Ukraine, including Article 3 of the Convention. The second applicant further maintained that he had informed the authorities that he had been granted refugee status by the UNHCR and therefore his extradition was impossible under domestic law. The third applicant further complained that he stayed in detention for an extra 24 hours without a court decision in July 2010. The applicants further complained that under the Minsk Convention they could not be extradited either given that the Ukrainian legislation did not contain the crime of extremism, for which they were wanted by the Uzbek authorities.

QUESTIONS TO THE PARTIES

1. Were the applicants Mr Khamroyev , Mr Dadakhanov and Mr Akramov , deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, was the extradition enquiry in their cases conducted with due diligence (see Molotchko v. Ukraine , no. 12275/10 , § 176, 26 April 2012) ?

2. Was the detention of the first appl icant, Mr Khamroyev , between 15 and 24 June 2010 based on law as required by Article 5 § 1 of the Convention (see Mokallal v. Ukraine , no. 19246/10 , §§ 39 and 40, 10 November 2011)?

3. D id the deprivation of liberty of the second applicant, Mr Dadakhanov , fall within paragraph (f) of Article 5 § 1 of the Convention given his refugee status under the UNHCR mandate ( Eminbeyli v. Russia , no. 42443/02, § 48, 26 February 2009 )?