ECtHR - Shamayev and Others v Georgia and Russia, Application no.36378/02, 12 October 2005

Facts:

The Thirteen applicants are Russian and Georgian nationals.

Between the 3 and 5 August 2002 the applicants crossed the Russo-Georgian border near the Guirevi checkpoint in Georgia. The applicants were arrested and charged with importing weapons in breach of the customs regulations, illegally carrying, handling and transporting weapons as well as crossing the border illegally. On 7 August 2002 the Vake-Saburtalo Court of First Instance ordered that they be placed in pre-trial detention for three months which was then, for some of the applicants, extended by the Tbilisi Court of Appeal for three months.

On 6 August 2002, the Procurator-General of the Russian Federation handed over the extradition request for the applicants in Tbilisi.  Given that the applicants had been armed when illegally crossing the border and having regard to other evidence, the Russian authorities believed that they were the perpetrators of an attack on the Russian army units (by an illegal armed group) in a border area on 27 July 2002 shortly before their arrest.

The Georgian Procurator-General informed his Russian counterparts that the extradition request contained no information on the identity, nationality and home addresses of the individuals concerned or documents or statutory provisions. As a result, on 12 and 19 August and 30 September 2002 the Russian Authorities sent their Georgian counterparts the required documents. After examining those documents, the Georgian Procurator-General’s were able to identify five of the applicants and agreed to their extradition.

On the evening of 3 October 2002 in Tbilisi Prison no.5., the applicants learned from the 11 pm news bulletin on Rustavi-2 (they had a television set in their cell) that the extradition of five or six of the applicants was imminent. Between 3 and 4 am (4 October 2002) the applicants refused to comply when they were asked by prison wardens to leave their cell for it to be disinfected. Fifteen members of the Georgian Ministry of Justice’s special forces forcefully removed the applicants from their cell and violent clashes occurred between the special forces and the applicants.

On the evening of 4 October 2002, four of the applicants were placed onto a plane and  extradited to Russia.

Following assurances from the Russian government that the extradited applicants were in good health, notwithstanding that one of the applicants had died as a result of the ill treatment inflicted on to him, the applicants were sentenced to imprisonment for varying periods of time.

Decision & reasoning:

The Court examined the alleged violation of Articles 2 and 3 of the Convention by Georgia

In relation to the alleged death of one of the applicants (Mr Aziev)

The Court found that the evidence available did not enable it to conclude that Mr Aziev had died before, during or after his extradition to Russia. Additionally, although Mr Aziev lodged a new application on 19 August 2003 with the Court, directed solely at Russia (in respect of his extradition to Russia), at no point did Mr Aziev make a complaint about the ill-treatment to which he had allegedly been subjected during his extradition or after his arrival in Russia. The Court held unanimously that there had been no violation of Article 2 in respect of Mr Aziev (his right to life).

In relation to the alleged risk of being sentenced to death and of ill-treatment following extradition

The Court concluded that based on the evidence put forward, the facts of the case did not support “beyond any reasonable doubt” the assertion that at the time when the Georgian authorities took the decision, there were real or well-founded grounds to believe that extradition would expose the applicants to a real and personal risk of inhumane or degrading treatment within the meaning of Article 3 of the Convention. Thus the Court decided that there had been no violation of Article 3 of the Convention.

Regarding the applicants who were not extradited, the Court notes that under Article 35 § 4 of the Convention, it may declare an application inadmissible at any stage of the proceedings. The Court found that the applicants’ complaints under Article 2 and 3 were incompatible ratione personae with the Convention’s provisions as no extradition order has been issued against them.

The Court then examined the applicants against who an extradition order has been made. The Court found that that two of the applicants were currently detained in Russia after having disappeared in Tbilisi on 16 or 17 February 2004. In light of this, the Court noted that it was not necessary to examine whether there would have been a violation of Articles 2 and 3 of the Convention if the decision to extradite the two applicants had been carried out. The Court then noted that  one of the applicant’s extradition order had been suspended (meaning that he was not at an imminent risk of being handed over to Russian authorities). However his situation differed from that of the non-extradited applicants as his extradition order had already been signed. Thus it may be enforced against him once the administrative proceedings regarding his refugee status is finalised. The Court therefore decides that it is necessary to examine whether his rights would be violated (under Article 2 and 3 of the Convention) if his extradition order were to be enforced against him.

The Court drew attention to a recent and alarming phenomenon where individuals of Chechen origin who had lodged applications before the Court were being persecuted and murdered. Equally, a number of Human Rights reports described the sharp rise in the number of cases of persecution in 2003 and 2004, of individuals who had lodged applications before the Court. Taking into account the evidence produced before the Court, the latter decided that the assessment on which the decision to extradite the applicant was established two years prior, no longer sufficed to exclude all risk of ill-treatment, prohibited by the Convention, inflicted on him. The Court concluded that if the decision of 28 November 2002 to extradite the applicant were to be enforced on the basis of assessments made on that date, there would be a violation of Article 3 of the Convention.

The risk of extra-judicial execution

The Court accepted that a number of reports denounced numerous cases in the Chechen Republic of the arbitrary detention, disappearance or killing of individuals of Chechen origin. However, the facts of the present case do not show that, at the time the Georgian authorities took their decision, there were serious and well-founded reasons for believing that their extradition would expose the applicants to a real risk of extra-judicial execution, contrary to Article 2 of the Convention. Thus there had been no violation of that provision.

The events of the night of 3 to 4 October 2002

The Court considers it established that physical force was used by the Ministry of Justice’s special force during the night of 3 to 4 October 2002 on the 11 applicants to make them leave their cell (with a view of extraditing four of them). However it also establishes that the physical force had been preceded by peaceful attempts by the prison staff to persuade prisoners to leave their cell and comply with orders. The Court had no doubt that the applicants’ put up vigorous resistance (arming themselves with various objects including bricks and pieces of metal). In light of this, the Court accepted that the intervention of fifteen members of the special forces could reasonably be considered necessary to ensure the safety of the prison staff and prevent disorder spreading through the rest of the prison.

The Court notes that the applicants had been without information since the beginning of the extradition proceedings, however. They were only informed of some of their number’s imminent extradition in the middle of the night on 3 October 2002, only a few hours before the execution of the extradition orders of 2 October 2002 began. Prison staff later on in the night ordered the applicants to leave their cell on the basis of fictitious reasons. Considering the vulnerability of the applicants, the Court considers that the Georgian authorities’ conduct amounted to attempted deception. The applicants collective fear seems to have been linked to legitimate fears related to the idea of their extradition (not knowing who would be extradited).

The scale of the bruising of the applicants observed by the doctor who examined them indicates that their injuries were sufficiently grave to amount to ill-treatment within the scope of Article 3 of the Convention. The Court also noted that the applicants had also injured the prison wardens and members of the special forces, resulting in the sentencing of four of the applicants on 25 November 2004 to two years and five months’ imprisonment. The Georgian authorities have not conducted an investigation into the proportionality of the force used against the applicants, however. Thus as a result of the inadmissible procedure for the enforcement of the extradition orders, the injuries sustained by some of the applicants (by the special forces) and the lack of medical attention and treatment, the Court concludes that there has been a violation of Article 3 of the Convention by Georgia.

The Court then examined the alleged violation of Article 5 §§ 1, 2 and 4 of the Convention by Georgia

The Court decided that the detention of the applicants in Georgia from 3 August to 4 October 2002 was justified in principle under  Article 5  § 1 (f) of the Convention and there had therefore been no violation by Georgia of Article 5  § 1 of the Convention.

However, the Court found that only ten applicants met with the trainee prosecutors from the Georgian Procurator-General’s Office and that these applicants had not received sufficient information relating to their detention pending extradition for the purposes of Article 5 § 2 of the Convention. Accordingly, there had been a violation of Article 5 § 2 of the Convention.

The Court equally points out that while Article 5 § 2 does not require that the case file be made available in its entirety to the individuals concerned, they must nonetheless receive sufficient information in order to be able to challenge and review the lawfulness of their case provided for in Article 5 § 4.  The applicants had been deprived of that possibility. The Court held that there had been a violation of Article 5 § 4 of the Convention.

The Court considers the alleged violation by Georgia of Article 13 of the Convention taken in conjunction with Article 2 and 3.

The Court found that applicants extradited on 4 October 2002 had no opportunity to submit their complaints under Article 2 and 3 of the Convention. Neither the applicants nor their lawyers were informed of the extradition orders issued in respect of the applicants on 2 October 2002 and that the authorities had unjustifiably hindered the exercise of the right of appeal that might have been available to them.

The Court held that the five extradited applicants were not given the possibility to raise their complaints under Articles 2 and 3 of the Convention before a “national authority”, therefore it was held that there had been a violation of Article 13.

The Court examines the alleged violation of Article 34 of Convention by Georgia.

The eleven applicants’ request for application of Rule 39, was received, in the form of several faxes, by the Court on 4 October 2002 between 3.35 pm and 4.20 pm. The Georgian Government were informed at 6 pm on the same date (and confirmed at 7.59 pm), via their General Representative, that the Vice-President of Court’s Second Section had decided to apply Rule 39. The Georgian authorities then extradited the applicants on the same date at 7.10 pm (Strasbourg time). Following their extradition the applicants were place in isolation and incommunicado.

The Russian Government also firmly alleged that the extradited applicants had never intended to lodge an application with the Court, or with Russia, and that the examination of the merits of the application as a whole was barely possible from a procedural point of view. Thus, the principle of equality of arms, inherent in the effective exercise of the right of application during proceedings before the Court, was unacceptably infringed. Furthermore, the Court itself was unable to carry out the ‘fact-finding visit’ to Russia decided under Article 38 § 1 (a) of the Convention, and was only able to base itself on a few written communications with the extradited applicants. Thus, the Court was not in a position to complete its examination of the merits of their complaints against Russia. Consequently, by failing to abide by the indication given by the Court, Georgia failed to discharge its obligations under Article 34 of the Convention.

The Court considers the alleged violation of Articles 2,3 and 6 § §1,2 and 3 of the Convention by Russia.

Since the Court had found a non-violation of Article 2 in relation to one of the applicant’s the Court goes onto note that the applicants complaints under Article 3 was not covered by the admissibility decision of 16 September 2003, which defines the scope of the Court’s examination of the merits of the case. Thus, the Court has no jurisdiction to deal with it.

Similarly, and with regards to the alleged infringement of the presumption of innocence with regard to the applicants, the Court considers that this complaint does not amount merely to a further legal submission, but a separate complaint under Article 6 § 2 of the Convention. Considering that the admissibility decision did not cover that complaint, the Court has no jurisdiction to examine it.

Given the evidence in the Court’s possession, it is insufficient for it to adjudicate between the claims made by each of the parties concerning the alleged violation by Russia of Articles 3 and 6 § §1 and 3 of the Convention.

The Court examined the alleged failure by Russia to discharge its obligation under Article 38 § 1 of the Convention

The Court emphasises the importance of the principle set out in Article 38 § 1 (a) and reiterates that the Russian Government has a duty to comply with the specific undertaking they had given to the Court on 19 November 2002, notably the undertaking that the Court would be given unhindered access to the extradited applicants as well as the possibility of a fact-finding visit. In light of this, the Court decide to lift the interim measure (on 26 November 2002) indicated to Georgia and decided on 16 September 2003 to hold an on-the-spot investigation in Georgia and Russia. Only the Georgian part of the visit could be accomplished.

The Russian Government did not respond favourably to the Court’s request to conduct investigations to establish the facts and therefore discharge its obligation under Article 38 § 1 (a) of the Convention. None of the reasons given by the Russian Government were capable to release the Russian State, in its capacity as the respondent State, from its duty to cooperate with it in arriving at the truth.

Thus the Court concluded that by obstructing its fact-finding visit and denying it access to the applicants the Russian Government had unacceptably hindered the establishment of part of the facts in this case and therefore failed to discharge their obligations under Article 38 § 1 (a) of the Convention.

The Court considered the alleged violation of Article 34 of the Convention by Russia.

The Court notes that the Russian Government, in addition to its obligations under Article 34 (not to hold the applicants incommmunicado and not to refuse them the access to their lawyer) had a duty to comply with the specific undertakings they had given to the Court on 19 November 2002. In spite of the Court’s requests the applicants’ representatives were never granted access to the extradited applicants and the Court was denied the possibility of hearing the applicants. The Russian government had even asserted in a letter (in response to a letter from the Court) that the applicants had complained about the Court’s attempts to contact them and that they had never wished to apply to the Court. Four of the extradited applicants later confirmed that they had applied to the Court from Georgia.

The Court considered that there was reason for serious doubt as to the freedom of the extradited applicants to correspond with it, which they had been prevented from doing by the haste with which they extradited.

The Court noted that regarding two of the applicants, neither Russia or Georgia has given a convincing reason for the disappearance of both applicants on 16 February 2004 or their arrest three days later by the Russian authorities.

Consequently, the Court decided that the measures used by the Russian Government have prevented the effective exercise by the applicants of the right to apply to the Court, as guaranteed by Article 34 of the Convention. Accordingly, there has been a violation of that provision.

Outcome:

Government’s preliminary objections were dismissed.

There was no violation of Article 2 with regard to one of the applicants’ right to life.

There was no violation of Article 3 with regard to five of the extradited applicants by Georgia.

The Court holds that the complaints under Article 2 and 3 of the Convention, concerning the extradition of to Russia of five of the applicants, are incompatible ratione personae.

The Court holds that there would be a violation by Georgia of Article 3 of the Convention in the event of the extradition of one of the applicant’s.

The Court holds that there was no violation of Article 2 by Georgia with regard to five extradited applicants.

There was a violation of Article 3 by Georgia with regard to the treatment inflicted on 11 applicants.

There was no violation of Article 5 § 1 with regard to the detention in Georgia.

The was a violation of Article 5 § 2 and 5 § 4 by Georgia in regards to all the applicants.

The Court held that it was not necessary to examine Article 6 § 3 of the Convention.

The Court found that there was a violation of Article 13 read in conjunction with Article 2 and 3 of the Convention in regards to five applicants.

The Court finds a failure:

• By Georgia to discharge its obligations under Article 34 in regards to four applicants
• By Russia to discharge: its obligations under Article 34 in regards to seven applicants, and to comply with its obligations under Art 38 § 1 (a) of the Convention

The Court decides:

• it is not necessary to examine Article 2 and 3 regarding the extradition of two applicants to Russia.
• It is not necessary to examine the complaint of one applicant under Article 2 § 1 of the Convention and Article 4 of Protocol No.4

Cost and expenses:

• Partial award
• Reimbursement of Cost incurred before the Court.

Observations/comments:

This case summary was written by Elinor Gibson, student at BPP University. 

Other sources: