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THIRD SECTION

 

 

 

 

 

 

CASE OF A.N. AND OTHERS v. RUSSIA

 

(Applications nos. 61689/16and 3 others - see appended list)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

23 October 2018

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of A.N. and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 2 October 2018,

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

PROCEDURE

1. The case originated in four applications (nos. 61689/16, 20421/17, 23188/17and 37702/17) 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 three Uzbek nationals and one Tajik national ("the applicants") on the various dates indicated in the appended table.

2. The applicants were represented by various lawyers as indicated in the appended table. The Russian Government ("the Government") were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3. On various dates the applicants' requests for interim measures preventing their removal to their respective countries of origin were granted by the Court under Rule 39 of the Rules of Court. The applicants' cases were also granted priority (Rule 41) and confidentiality (Rule 33) and the applicants were granted anonymity (Rule 47 § 4).

4. The applicants submitted complaints under Articles 3, 5 and 8 of the Convention in connection with the pending removals to their countries of origin.

5. On 20 September 2017 the applications were communicated to the Government.

6. On 10 August 2018 the applicant's representative in the case B.A. v. Russia , no. 37702/17informed the Court that the applicant does not wish to maintain his complaints under Articles 3 and 8 of the Convention, while maintaining his complaints under Article 5 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicants are nationals of Tajikistan and Uzbekistan. Their initials, dates of birth, the dates on which their applications were introduced, application numbers, as well as the particulars of the domestic proceedings and other relevant information are set out in the Appendix.

8. On various dates they were charged in their countries of origin with religious and politically motivated crimes, their pre-trial detention was ordered in absentia , and international search warrants were issued by the authorities.

9. Subsequently the Russian authorities took final decisions to remove (that is to say extradite or expel) the applicants, despite consistent claims that in the event of removal the applicants would face a real risk of treatment contrary to Article 3 of the Convention.

II. RELEVANT DOMESTIC LAW

10 . The relevant domestic and international law is summarised in the Court's judgments on removals from Russia to Tajikistan and Uzbekistan (see Savriddin Dzhurayev v. Russia , no. 71386/10, §§ 70-�101, ECHR 2013 (extracts), and Akram Karimov v. Russia , no. 62892/12, §§ 69-105, 28 May 2014).

III. REPORTS ON TAJIKISTAN AND UZBEKISTAN

11. The references to the relevant reports by the UN agencies and international NGOs on the situation in Tajikistan were cited in the case of K.I. v. Russia (no. 58182/14, §§ 2-28, 7 November 2017) and on the situation in Uzbekistan in the cases of Kholmurodov v. Russia (no. 58923/14, §§ 46-50, 1 March 2016), and T.M. and Others v. Russia ([Committee], no. 31189/15, § 28, 7 November 2017) .

THE LAW

12. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical legal issues under the Convention.

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

13. The applicants in the cases A.N. v. Russia , no. 61689/16, Z.S. v. Russia , no. 20421/17, and Z.A. v. Russia , no. 23188/17complained under Article 3 of the Convention that the national authorities had failed to consider their claims that they could be at risk of ill-treatment in the event of their removal to their respective countries of origin and that the removal would expose them to that risk if it were to take place. Article 3 of the Convention reads:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

14. The Government contested that argument.

A. Admissibility

15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. General principles

16. The relevant general principles concerning the application of Article 3 have been summarised recently by the Court in the judgment in the case of F.G. v. Sweden ([GC], no. 43611/11, §§ 111-27, ECHR 2016).

2. Application of those principles to the present case

(a) Existence of substantial grounds for believing that the applicant faces a real risk of ill-treatment

17. The Court has previously established that the individuals whose extradition was sought by either Uzbek or Tajik authorities on charges of religiously or politically motivated crimes constituted vulnerable groups facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to their respective countries of origin (see Mamazhonov v. Russia, no. 17239/13, § 141, 23 October 2014, and K.I. v. Russia , cited above, § 36).

18. Turning to the present cases, it is apparent that in the course of the extradition and expulsion proceedings the applicants consistently and specifically argued that they had been prosecuted for religious extremism and faced a risk of ill-�treatment. The materials pertinent to the charges preferred by the Tajik and Uzbek authorities were clear as to their basis, namely that the applicants were accused of religiously and politically motivated crimes. The Tajik and Uzbek authorities thus directly identified them with the groups whose members have previously been found to be at real risk of being subjected to proscribed treatment.

19. In such circumstances, the Court considers that the Russian authorities had at their disposal sufficiently substantiated complaints pointing to a real risk of ill-treatment.

20. The Court is therefore satisfied that the applicants presented the Russian authorities with substantial grounds for believing that they faced a real risk of ill-treatment in their countries of origin.

(b) Duty to assess claims of a real risk of ill-treatment through reliance on sufficient relevant material

21. Having concluded that the applicants had advanced at national level valid claims based on substantial grounds for believing that they faced a real risk of treatment contrary to Article 3 of the Convention, the Court must examine whether the authorities discharged their obligation to assess these claim adequately through reliance on sufficient relevant material.

22. Turning to the present cases, the Court considers that in the extradition and expulsion proceedings the domestic authorities did not carry out a rigorous scrutiny of the applicants' claims that they faced a risk of ill-�treatment in their home country. The Court reaches this conclusion having considered the national courts' simplistic rejections of the applicants' claims. Moreover, the domestic courts' reliance on the assurances of the Tajik and Uzbek authorities, despite their formulation in standard terms, appears tenuous, given that similar assurances have consistently been considered unsatisfactory by the Court in the past (see, for example, Abdulkhakov v. Russia , no. 14743/11, §§ 149-50, 2 October 2012, and Tadzhibayev v. Russia , no. 17724/14, § 46, 1 December 2015).

23. The Court also notes that the Russian legal system, in principle, offers several avenues whereby the applicants' removal to their countries of origin could be prevented, given the risk of ill-treatment they face there. However, the facts of the present cases demonstrate that the applicants' claims were not adequately considered in any relevant proceedings, despite being consistently raised.

24. The Court concludes that, although the applicants had sufficiently substantiated the claims that they would risk ill-treatment in their countries of origin, the Russian authorities failed to assess their claims adequately through reliance on sufficient relevant material. This failure opened the way for the applicants' removals.

(c) Existence of a real risk of ill-treatment or danger to life

25. Given the failure of the domestic authorities to adequately assess the alleged real risk of ill-treatment through reliance on sufficient relevant material, the Court finds itself compelled to examine independently whether or not the applicants would be exposed to such a risk in the event of their removal to their countries of origin.

26. The Court notes that nothing in the parties' submissions, nor previously examined relevant material from independent international sources (see paragraph 10 above) provides a basis for a conclusion that the criminal justice system of Tajikistan or Uzbekistan or the specific treatment of those prosecuted for religiously and politically motivated crimes had improved.

27. The Court having given due consideration to the available material concludes that authorising the applicants' removal to their countries of origin exposed them to a real risk of treatment contrary to Article 3 of the Convention.

(d) Conclusion

28. The foregoing considerations are sufficient to enable the Court to conclude that there would be a violation of Article 3 of the Convention if the applicants in the cases A.N. v. Russia , no. 61689/16, Z.S. v. Russia , no. 20421/17, and Z.A. v. Russia , no. 23188/17were to be removed to their respective countries of origin.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

29. In application B.A. v. Russia , no. 37702/17the applicant complained under Article 5 § 1 (f) of the Convention of the unlawfulness of his detention pending expulsion and of lack of foreseeability regarding its length. The relevant provisions of the Convention read 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 against whom action is being taken with a view to deportation or extradition."

30. The Government provided no specific arguments in this regard and stated that the available material is sufficient for the Court to take decision on the merits of this complaint.

31. The Court reiterates that the exception in sub-paragraph (f) of Article 5 § 1 of the Convention requires only that "action is being taken with a view to deportation or extradition" without any further justification (see, among others, Chahal v. the United Kingdom , 15 November 1996, § 112, Reports of Judgments and Decisions 1996-�V) and that deprivation of liberty will be justified as long as deportation or extradition proceedings are in progress (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009). In asking whether "action is being taken with a view to deportation", this Court has found that removal must be a realistic prospect ( A. and Others v. the United Kingdom , cited above, § 167, and Amie and Others v. Bulgaria , no. 58149/08, § 144, 12 February 2013). While an interim measure indicated under Rule 39 of the Rules of Court might at times be the only actual barrier to an applicant's expulsion, its indication does not necessarily create a presumption that the expulsion is not possible or that the subsequent detention is arbitrary. A detention period subject to review at regular intervals, as long as expulsion remains a realistic possibility, might be reasonable given the authorities' decisions to maintain that detention awaiting the outcome of this Court's judgment (see Ahmed v. the United Kingdom , no. 59727/13, §§ 45-59, 2 March 2017).

32. The Court observes that prior to his detention pending expulsion the applicant was detained pending extradition between 12 May 2016 and 10 May 2017. On the day of his release from detention pending extradition he was immediately rearrested for violation of migration rules. On 12 May 2017 his detention pending expulsion was ordered by the Meshchanskiy District Court of Moscow, this order was subsequently upheld in substance on 2 June 2017 and 10 November 2017 by the Moscow City Court reaffirming the expulsion order and suspending its enforcement respectively. It needs to be highlighted that the above decisions of the Moscow City Court were adopted after 30 May 2017, the date on which Court stayed the applicant's removal to Uzbekistan by indicating to the Russian Government an interim measure under Rule 39 of the Rules of Court.

33. At the same time the Court is also mindful that the applicant's expulsion had been previously ordered in 2014 by the Odintsovskiy Town Court of Moscow Region and that he had defied that order by going into hiding and residing in Russia illegally. It also does not lose sight of the fact that on 12 May 2017 after his expulsion was repeatedly ordered by the Meshchanskiy District Court of Moscow the applicant escaped from the courthouse and was rearrested on 16 May 2017.

34. The domestic judicial decisions of 12 May, 2 June and 10 November 2017 ordering the applicant's detention pending expulsion contained no reasons justifying the need for detention, no analysis of the particularities of the case in this regard and no estimation of how realistic the applicant's expulsion was in the light of the Rule 39 measure. Neither had these decisions set any time-limits for review of the continued validity of the applicant's detention. In absence of the scrutiny by the domestic court of these decisive elements the Court must conclude that it had not been demonstrated that the length of the applicant's detention pending expulsion was compliant with what was reasonably required for the purpose pursued.

35 . Accordingly, there had been a violation of Article 5 § 1 (f) of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

36. In application Z.S. v. Russia , no. 20421/17, the applicant complained under Article 5 § 4 of the Convention that the length of the appeal proceedings in Moscow Regional Court, by which the applicant sought to challenge the lawfulness of the prolongation of his detention ordered by the Khamovnicheskiy District Court of Moscow on 22 September 2016, did not comply with the "speediness" requirement of Article 5 § 4 of the Convention. The relevant provisions of the Convention read as follows:

"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."

37. The Government provided no specific arguments in this regard and stated that the available material is sufficient for the Court to take decision on the merits of this complaint.

38. The Court observes that in the present case the decision to prolong the applicant's detention of 22 September 2016 was appealed by the applicant on 26 September 2016 and reviewed by the appeal court on 17 October 2016, that is 21 days later. Having regard to its case-law on the matter and all of the circumstances of the present case the Court does not find the above period of appeal review unreasonable in the light of the "speediness" requirement under Article 5 § 4 of the Convention. It therefore concludes that this complaint must be rejected as inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

39. The applicant in the case B.A. v. Russia , no. 37702/17further complained under Article 5 § 4 about an alleged lack of an effective procedure by which he could challenge the lawfulness of his detention pending expulsion and the length of the appeal review for one of the detention orders.

40. However, having regard to the facts of the case, the submissions of the parties and its findings under Article 5 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).

V. APPLICATION OF THE INTERIM MEASURES UNDER RULE 39 OF THE RULES OF COURT

41. On various dates the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be removed from Russia to their respective countries of origin for the duration of the proceedings before the Court.

42. In this connection the Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final.

43. Accordingly, the Court considers that the measures indicated to the Government under Rule 39 of the Rules of Court come to an end.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

45. The applicants claimed between 5,000 and 10,000 euros (EUR) in respect of non-pecuniary damage. The applicant in the case Z.A. v. Russia , no. 23188/17left the amount of award at the Court's discretion.

46. The Government stated that in case of finding of a violation such finding in itself would constitute a sufficient just satisfaction.

47. In the light of the nature of the established violations of Article 3 of the Convention and the specific facts of the present case, the Court considers that finding that there would be a violation of Article 3 of the Convention if the applicants were to be removed to their respective countries of origin constitutes sufficient just satisfaction in respect of any non-pecuniary damage suffered (see, to similar effect, J.K. and Others v. Sweden [GC], no. 59166/12, § 127, ECHR 2016).

48. At the same time having regard to its conclusions under Article 5 of the Convention in the case B.A. v. Russia , no. 37702/17(see paragraph 35 above) and acting on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

49. The applicants also claimed between EUR 3,500 and 5,680 for the costs and expenses incurred before the domestic courts and the Court.

50. The Government did not provide specific comments in this regard.

51. Regard being had to the documents in its possession and to its case-�law, the Court considers it reasonable that the sums indicated in the appended table be awarded and that these sums should be payable directly to the applicants' representatives.

C. Default interest

52. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

 

2. Declares the complaints under Articles 3 of the Convention in the cases A.N. v. Russia , no. 61689/16, Z.S. v. Russia , no. 20421/17, and Z.A. v. Russia , no. 23188/17concerning the applicants' removal to their respective countries of origin, as well as the complaint under Article 5 § 1 (f) of the Convention in the case B.A. v. Russia , no. 37702/17admissible, and the complaint under Article 5 § 4 of the Convention in the case Z.S. v. Russia , no. 20421/17inadmissible;

 

3. Holds that there would be a violation of Article 3 of the Convention if the applicants in the cases A.N. v. Russia , no. 61689/16, Z.S. v. Russia , no. 20421/17, and Z.A. v. Russia , no. 23188/17were to be removed to their respective countries of origin;

 

4. Holds that there has been a violation of Article 5 § 1 (f) of the Convention in the case B.A. v. Russia , no. 37702/17;

 

5. Holds that it is not necessary to examine the admissibility and merits of the complaints under Article 5 § 4 of the Convention in the case B.A. v. Russia , no. 37702/17;

 

6. Holds that the finding that there would be a violation of Article 3 of the Convention in case of the applicants' removal to their respective countries of origin constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants in this regard;

 

7. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that the sums awarded in respect of costs and expenses incurred in the proceedings before the domestic courts and this Court are to be payable directly to the applicants' representatives;

(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

8. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková
Deputy Registrar President

APPENDIX

 

No.	Name, date of birth, nationality   application no., lodged on,   represented by	Dates of detention and release	Removal proceedings (type, progress, outcome)	Refugee and/or temporary asylum proceedings	Other relevant information	Just satisfaction award
1.	A.N. v. Russia 03 May 1987 Tajikistan   App. no. 61689/16 26 October 2016   Daria Trenina Eleonora Davidyan Kirill Zharinov	Detention pending extradition   05 November 2015 - arrested and subsequently detained   4 November 2016 - release due to expiry of the maximum statutory period of detention   5 November 2016 - arrest   7 November 2016 - release	Extradition proceedings   13 October 2014 - international search warrant issued by Tajik authorities   16 October 2014 - detention order in absentia issued by Tajik authorities   12 November 2015 - extradition request on charges of extremism   18 March 2016 - extradition request granted by the Russian Prosecutor General's Office   1 November 2016 - extradition order upheld by the final judgment of the Supreme Court of the Russian Federation   Expulsion proceedings   1 August 2016 - the applicant's stay in Russia declared undesirable   2 December 2016 - revocation of the applicant's residence permit	Refugee status proceedings   31 October 2017 - refusal to grant refugee status by the migration authorities   2 March 2018 - the applicant's complaint dismissed by the Basmanniy District Court of Moscow   Temporary asylum proceedings   17 August 2017 - refusal to grant temporary asylum by the migration authorities   24 January 2018 - refusal upheld by the final judgment of the Supreme Court of Chuvash Republic	26 October 2016 - interim measure preventing the applicant's removal	EUR 700 to Ms Zhemchugova, in respect of costs and expenses incurred in the domestic proceedings   EUR 1,500 to Ms Trenina, Ms Davidyan and Mr Zharinov jointly, in respect of costs and expenses incurred in the proceedings before the Court
2.	Z.S. v. Russia 24 December 1984 Uzbekistan   App. no. 20421/17 16 March 2017   Daria Trenina Eleonora Davidyan Kirill Zharinov	Detention pending extradition   25 March 2016 - arrested and subsequently detained   22 September 2016 - prolongation of detention by the Khamovnicheskiy District Court of Moscow   26 September 2016 - appeal against the prolongation order   17 October 2016 - order upheld by the Moscow City Court   25 March 2017 - release due to expiry of the maximum statutory period of detention	Extradition proceedings   2 November 2015 - international search warrant issued by Uzbek authorities   9 November 2015 - detention order in absentia issued by Uzbek authorities   21 April 2016 - extradition request on charges of extremism 6 December 2016 - extradition request granted by the Russian Prosecutor General's Office 21 March 2017 - extradition order upheld by the final judgment of the Supreme Court of the Russian Federation	Refugee status proceedings   30 June 2016 - refusal to grant refugee status by the migration authorities   8 February 2017 - refusal upheld by the final judgment of the Moscow City Court   10 August 2017 - repeated request for asylum   11 November 2017 - final administrative refusal to consider the new request   Temporary asylum proceedings   12 April 2017 - application for temporary asylum submitted by post	17 March 2017 - interim measure preventing the applicant's removal	EUR 1,500 to Ms Trenina, Ms Davidyan and Mr Zharinov jointly, in respect of costs and expenses incurred in the proceedings before the Court
3.	Z.A. v. Russia 2 February 1991 Uzbekistan   App. no. 23188/17 27 March 2017   Illarion Vasilyev	Detention pending extradition   29 March 2016 - arrested and subsequently detained   29 March 2017 - released due to expiry of the maximum statutory period of detention	Extradition proceedings   16 October 2015 - international search warrant issued by Uzbek authorities   16 October 2015 - detention order in absentia issued by Uzbek authorities   19 April 2016 - extradition request on charges of extremism   26 December 2016 - extradition request granted by the Russian Prosecutor General's Office 20 April 2017 - extradition order upheld by the final judgment of the Supreme Court of the Russian Federation	Refugee status proceedings   1 August 2016 - refusal to grant refugee status by the migration authorities   Temporary asylum proceedings   27 September 2017 - refusal of temporary asylum by the migration authorities	29 March 2017 - interim measure preventing the applicant's removal	EUR 1,500 to Mr Vasilyev, in respect of costs and expenses incurred in the proceedings before the Court
4.	B.A. v. Russia 26 August 1985 Uzbekistan   App. no. 37702/17 29 May 2017   Daria Trenina Eleonora Davidyan Kirill Zharinov	Detention pending extradition   12 May 2016 - arrested and subsequently detained   9 November 2016 - prolongation of detention by the Meshchanskiy District Court of Moscow   13 November 2016 - appeal against the prolongation order   31 January 2017 - order upheld by the Moscow City Court     10 May 2017 - released due to expiry of the maximum statutory period of detention   Detention pending expulsion   10 May 2017 - arrested and subsequently detained   12 May 2017 - escaped from the courthouse   16 May 2017 - arrested again and detained	Extradition proceedings   22 May 2015 - international search warrant issued by Uzbek authorities   22 May 2015 - detention order in absentia issued by Uzbek authorities   Expulsion proceedings   1 December 2014 - expulsion ordered by the Odintsovskiy Town Court of Moscow Region. The applicant never complied with the order and stayed in Russia illegally.     12 May 2017 - expulsion ordered by the Meshchanskiy District Court of Moscow   2 June 2017 - the applicant's expulsion upheld by the final judgment of the Moscow City Court   10 November 2017 - enforcement of expulsion suspended by the Moscow City Court in view of the interim measure applied by the Court   27 June 2018 - the Supreme Court of the Russian Federation annulled the judgment of the Moscow City Court and ordered reconsideration   24 July 2018 - the applicant's expulsion upheld by the final judgment of the Moscow City Court; the enforcement of expulsion suspended in view of the interim measure applied by the Court	Refugee status proceedings   21 October 2016 and 11 January 2017 - refusal to grant refugee status by the migration authorities   20 September 2017 - refusal upheld by the final judgment of the Moscow City Court	2014 - the applicant started cohabitating with Mrs M., a Russian national   10 September 2016 - the applicant's and Mrs M's son was born   30 May 2017 - interim measure preventing the applicant's removal	EUR 5,000 to the applicant in respect of the non-pecuniary damaged incurred in connection with a violation of his rights under Article 5 of the Convention   EUR 1,500 to Ms Trenina, Ms Davidyan and Mr Zharinov jointly, in respect of costs and expenses incurred in the proceedings before the Court