Постановление Европейского суда по правам человека от 17.06.2010 «Дело Колесник (kolesnik) против России» [англ.]

Город принятия

(Application No. 26876/08)
(Strasbourg, 17.VI.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kolesnik v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 27 May 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 26876/08) 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 Ms Irina Batdanovna Kolesnik, a national of Turkmenistan, and Mr Viktor Pavlovich Kolesnik, a national of Russia, ("the applicants"), on 9 June 2008.

2. The applicants were represented by Mrs Ryabinina, a lawyer practising in Moscow, and by Mrs Tseytlina, a lawyer practising in St. Petersburg. The Russian Government ("the Government") were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mr G. Matyushkin.

3. The applicants alleged that the first applicant's extradition to Turkmenistan would subject her to a risk of ill-treatment and violate their right to respect for their family life, that her detention was not lawful and not subject to judicial review, and that the presumption of innocence had been breached. They referred to Articles 3, 5, 6 and 8 of the Convention.

4. On 27 June 2008 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the first applicant to Turkmenistan pending the Court's decision.

5. On 2 March 2009 the President of the First Section decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.

I. The circumstances of the case
6. The applicants were born in 1961 and 1946 respectively and live in the Tula Region.

A. Background events
7. The applicants are a married couple and have a daughter born in 1992. The first applicant also has a daughter from her previous marriage, born in 1985. Both daughters are Russian nationals.

8. Prior to their arrival in Russia, the applicants and their daughter were living in Turkmenistan. There the second applicant and their daughter acquired Russian citizenship in 2002. On 15 November 2005 criminal proceedings were brought against the first applicant's employer on economic charges. The first applicant was questioned as a witness on several occasions and allegedly threatened by the investigator.

9. On 10 December 2005 the applicants and their daughter moved to Russia. The first applicant's elder daughter was already living in Russia.

10. The applicants purchased a house in the Tula Region. In May 2006 the first applicant obtained a temporary residence permit. In September 2006 the first applicant also applied for Russian citizenship.

11. On 22 February 2007 her application for Russian citizenship was refused on the ground that criminal proceedings were pending against her in the State of her nationality. It does not appear that the first applicant appealed against this decision to a court.

B. Asylum proceedings
12. On 24 July 2007 the first applicant applied to the Federal Migration Service (the FMS) seeking refugee status.

13. On 26 July 2007 the FMS refused to examine the merits of the request, on the ground that the first applicant had a temporary residence permit, was married to a Russian national and was on a wanted list in Turkmenistan.

14. The first applicant complained about the refusal to the Central District Court of Tula. In her complaint she did not raise any arguments concerning her fears that in Turkmenistan she would be subjected to ill-treatment and separated from her family.

15. On 28 January 2008 the Central District Court of Tula upheld the decision of the FMS and dismissed the first applicant's complaint. The first applicant appealed.

16. On 29 May 2008 the Tula Regional Court upheld the first-instance decision.

17. On 2 July 2008 the first applicant applied for temporary asylum in Russia. In her application she stated briefly that she would be subjected to torture and other forms of ill-treatment if expelled to Turkmenistan.

18. On 23 July 2008 the first applicant was interviewed in this connection while in custody.

19. On 25 July 2008 her application was accepted for examination, and on 22 October 2008 the FMS refused the application. The first applicant appealed, referring to a threat of inhuman treatment in Turkmenistan and to family ties in Russia.

20. On 17 February 2009 the Zamoskvoretskiy District Court of Moscow ruled that the FMS decision should be upheld. The first applicant did not appeal against this decision to a higher court.

C. Extradition proceedings
21. On 28 January 2006 the Turkmen authorities, in the context of the criminal proceedings commenced in 2005, charged the first applicant with economic crimes and fraud and placed her on a wanted list.

22. On 6 September 2006 the prosecutor of the Kopetdagsky District of Ashgabat remanded the first applicant in custody.

23. On 10 October 2006 the Turkmen authorities sent the Office of the Prosecutor General of Russia a request to extradite the first applicant.

24. On 15 December 2006 the first applicant learned from the deputy prosecutor of Donskoy town that an "extradition check" was being conducted. Thereafter she contacted various branches of Russian authorities asking for protection from allegedly unlawful persecution by Turkmen authorities.

25. On 28 August 2007 the Moscow Inter-District Transport Prosecutor's Office drafted a report on the results of the "extradition check". The report stated, inter alia:

"As it follows from the documents submitted by [the Turkmen authorities], [the first applicant] is wanted for crimes [punishable under Turkmen law]...

[The first applicant] is not persecuted in Turkmenistan on political, religious, ethnic or racial grounds, she does not possess information which constitutes any State or military secret of the Russian Federation, and she has not applied to the Russian competent authorities for either political asylum or refugee status. She has applied for... Russian nationality. However, her request has been refused... on the ground of criminal prosecution by competent authorities of a foreign State.

[The first applicant] is aware of the grounds for... the criminal prosecution."
26. On 22 February 2008 the General Prosecutor's Office of Turkmenistan sent a letter to the Office of the Prosecutor General of Russia, guaranteeing that if extradited to Turkmenistan the first applicant would not be subjected to persecution on political grounds.

27. On 11 March 2008 the Office of the Prosecutor General of Russia ordered the first applicant's extradition to Turkmenistan on charges under Articles 33 part 5, 218 parts 1, 2, 3 and 229 part 4 (a) of the Criminal Code of Turkmenistan. The document stated that the first applicant had been charged in Turkmenistan with embezzlement and use of forged documents, which entailed serious damage. It compared these acts with the crimes as described in the Russian Criminal Code, found no obstacles to the extradition and granted the request.

28. The first applicant challenged the extradition order before the Moscow City Court. In her complaint she submitted that her extradition to Turkmenistan might entail "catastrophic consequences to the point of physical elimination". There were no other arguments regarding her fears of ill-treatment in Turkmenistan, the grounds for her fears, or arguments concerning her removal from the family.

29. On 5 June 2008 the Moscow City Court rejected the first applicant's complaint as unfounded.

30. The first applicant appealed against the decision on the same date. In her appeal statement she mentioned her fears of ill-treatment in Turkmenistan.

31. On 9 June 2008 the first applicant applied to the Court with a request to apply interim measures under Rule 39 of the Rules of Court and to stay her extradition.

32. On 27 June 2008 the Court granted the request and indicated to the Government of the Russian Federation that the first applicant should not be extradited to Turkmenistan until further notice.

33. On 17 July 2008 the Supreme Court of Russia allowed the first applicant's appeal, set aside the decision of 5 June 2008 and remitted the case for a fresh examination. At the same time the Supreme Court set the time-limit for the first applicant's detention at 8 August 2008.

34. On 1 August 2008 the Moscow City Court again rejected the first applicant's complaint against the extradition order.

35. On 16 October 2008 the Supreme Court of Russia, on an appeal by the first applicant, quashed and remitted the decision of the Moscow City Court. It found that the City Court had failed to examine the first applicant's arguments that she risked ill-treatment and that her family was living in Russia.

36. In November and December 2009 the Moscow City Court requested the Ministry of Foreign Affairs of Turkmenistan to comment on the first applicant's complaints about the threat of ill-treatment and about the allegations of unfair trial. In reply, on 15 January 2009 the General Prosecutor's Office of Turkmenistan stated that in the event of extradition the first applicant would not be subjected to political persecution, nor to torture or inhuman and degrading treatment and punishment. The letter referred to Turkmenistan's obligations under the International Covenant of Civil and Political Rights and the fact that the death penalty had been abolished in Turkmenistan in 1999. Furthermore, the letter stated that under the legislation of 1999, every year at the time of a Muslim festival there was an amnesty for convicted criminals if they had repented and taken the path to reform. On 9 February 2009, responding to a question from the Moscow City Court, the General Prosecutor's Office of Turkmenistan forwarded to the City Court a letter from the Ministry of the Foreign Affairs of that country, by which their initial request had been forwarded to the Prosecutor's Office.

37. On 13 February 2009 the Moscow City Court again found the decision of the General Prosecutor's Office of 11 March 2008 to be valid. The City Court heard the applicant and her lawyer, as well as Ms Ryabinina, who made a statement as an expert on the situation in Central Asia and in Turkmenistan in particular. The court reviewed the documents submitted by the applicants, including copies of the relevant international reports about the situation in Turkmenistan. The court also examined the decisions by which the applicant's request for temporary asylum had been rejected. The court found that the first applicant's allegations of the danger of ill-treatment in Turkmenistan were based on general information and unsubstantiated. It relied on the assurances provided by the General Prosecutor's Office of Turkmenistan and found that they had been issued by a competent body. It also took into account information about the legal framework of the criminal proceedings and detention in Turkmenistan, which appeared to be consistent with the requirements of fair trial and lawfulness of detention. The court took note of the annual amnesties announced in Turkmenistan for convicted persons. The City Court refused to consider the first applicant's arguments concerning the circumstances of the imputed actions, noting that she had been charged with a criminal offence in Turkmenistan and that the question of her involvement would be decided by the competent court in that country.

38. The first applicant appealed. On 31 March 2009 the Supreme Court confirmed the decision of 13 February 2009.

D. The first applicant's detention
1. The first applicant's first arrest
39. On 14 May 2007 the first applicant was arrested by Russian police.

40. On 16 May 2007 the deputy prosecutor of Donskoy town applied to the Donskoy Town Court seeking authorisation to remand the applicant in custody.

41. On 18 May 2007 the Donskoy Town Court dismissed the deputy prosecutor's request and the first applicant was released in the courtroom. The court found, inter alia, that at the time of her departure from Turkmenistan the first applicant had not been suspected of or charged with any criminal offences, no preventive measures had been applied to her and her freedom of movement had not been restricted. It also noted that the first applicant herself had contacted the Tula Regional department of the interior in relation to her placement on the wanted list by Turkmenistan.

42. On 21 May 2007 the Donskoy Town Prosecutor's Office appealed. On 4 July 2007 the Tula Regional Court set aside the decision of the Donskoy Town Court and remitted the case for a fresh examination.

2. The first applicant's second arrest
43. On 19 August 2007, when attempting to leave for Ukraine to visit her relatives, the first applicant was arrested and placed in remand prison IZ-77/6 in Moscow.

44. On 21 August 2007 the Dorogomilovskiy District Court of Moscow examined the documents concerning the first applicant's extradition and granted the prosecutor's request to detain her provisionally until 24 August 2007. The first applicant and her counsel stated that they agreed with the prosecutor's request.

45. On 24 August 2007 the Dorogomilovskiy District Court of Moscow ordered the first applicant's detention pending extradition proceedings. The court set no time-limits for her detention. The first applicant did not appeal against this order.

46. In October 2007 the first applicant complained to the Moscow Lyublinskiy District Court arguing that the administration of remand prison IZ-77/6 had held her in custody