Постановление Европейского суда по правам человека от 12.05.2010 «Дело Ходжаев (Khodzhayev) против России» [англ.]

nt proscribed by Article 3 of the Convention if extradited to Tajikistan.
103. The Court notes that the Government invoked assurances from the Tajik Prosecutor General's Office to the effect that the applicant would not be subjected to ill-treatment there (see paragraph 84 above). In this connection it emphasises that it is entitled to examine whether diplomatic assurances provide, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention. The Court observes that the assurances given in the present case were rather vague and lacked precision; hence, it is bound to question their value. It also reiterates that diplomatic assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see Saadi, cited above, §§ 147 - 48).
104. Lastly, the Court will examine the applicant's allegation that the Russian authorities did not conduct a serious investigation into possible ill-treatment in the requesting country. The Government accepted that on 11 January 2008, that is, almost five months before the request for extradition was granted, the applicant had informed the Russian migration authority that he had been persecuted in Tajikistan on political grounds (see paragraph 38 above). However, when examining the appeals against the extradition order, the Moscow City Court and the Supreme Court of Russia merely stated that the applicant's request for asylum had been rejected and that his allegations of persecution on religious grounds in Tajikistan had been unsubstantiated (see paragraphs 18 and 19 above). The Court is therefore unable to conclude that the Russian authorities duly addressed the applicant's concerns with regard to Article 3 in the domestic extradition proceedings.
105. The Court finds therefore that implementation of the extradition order against the applicant would give rise to a violation of Article 3 of the Convention.

II. Alleged violations of Article 5 of the Convention

106. The applicant complained under Article 5 § 1 (f) of the Convention that his ongoing detention pending extradition had been "unlawful": first, until 21 December 2007 he had been detained in the absence of an official request for extradition; secondly, the term of his detention had not been extended by the domestic courts. He also invoked Article 5 § 2, complaining that he had not been promptly informed of the reasons for his arrest. Lastly, he relied on Article 5 § 4 arguing, first, that his detention had not been subject to any judicial control and, secondly, that he had been deprived of the right to have the lawfulness of his detention reviewed by a court owing to lack of access to a lawyer during the first two weeks of his detention.
107. Article 5 of the Convention reads, in so far as relevant, 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.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
...
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."





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