- Judgment date: 2017-01-10
- Communication date: 2015-11-26
- Application number(s): 48917/15
- Country: RUS
- Relevant ECHR article(s): 3
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan)
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.769295
- Prediction: Violation
Communication text used for prediction
FACTS The applicant, Mr I.U., is a national of Uzbekistan who was born in 1988.
He is currently detained in a remand prison in Moscow.
He is represented before the Court by Ms D.V.
Trenina, a lawyer practising in Moscow.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Criminal proceedings against the applicant in Uzbekistan and extradition proceedings in Russia In 2014 the Uzbek authorities charged the applicant in absentia with membership of several banned religious organisations and the attempted overthrow of the Constitutional order of Uzbekistan.
On the same date they issued an international search warrant in respect of the applicant, and the Fergana criminal court ordered that he be placed in detention once arrested.
In December 2014 the applicant was arrested in Moscow.
On 26 December 2014 the Cheremushkinskiy District Court of Moscow ordered him to be detained until 24 January 2015.
The term of his detention was subsequently prolonged until 24 June 2015.
On 22 January 2015 the Uzbek authorities issued final charges against the applicant.
In particular, he was charged with membership of “Hizb ut‐Tahrir” and the attempted overthrow of the Constitutional order of Uzbekistan.
On 23 January 2015 the Uzbek authorities submitted an extradition request to the General Prosecutor’s Office of the Russian Federation (“the GPO”).
On 21 May 2015 the GPO granted that request.
On 18 June 2015 the City Court upheld the extradition order.
On 13 October 2015 the Supreme Court of the Russian Federation upheld the decision of 18 June 2015.
Refugee status proceedings On 5 June 2015 the applicant applied for refugee status.
On 10 August 2015 the Moscow department of the Federal Migration Service rejected his application.
On 17 September 2015 the applicant appealed against that decision to the Federal Migration Service.
Those proceedings are still pending.
COMPLAINTS The applicant complains under Article 3 of the Convention and under Article 13 in conjunction with Article 3 that he will be exposed to a real risk of torture should he be extradited or otherwise sent back to Uzbekistan because he belongs to a vulnerable group of persons who are systematically subjected to ill-treatment in that country.
CASE OF I.U. v. RUSSIA
(Application no. 48917/15)
10 January 2017
This judgment is final but it may be subject to editorial revision. In the case of I.U. v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 December 2016,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 48917/15) 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 an Uzbek national, Mr I.U. (“the applicant”), on 6 October 2015. 2. The applicant was represented by Ms E. Davidyan and Ms D. Trenina, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicant complained, in particular, that he would risk being subjected to ill‐treatment in the event of his extradition to Uzbekistan. 4. On 8 October 2015 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or another country for the duration of the proceedings before it. It was also decided to grant this case priority under Rule 41 of the Rules of Court. 5. On 26 November 2015 the application was communicated to the Government. 6. The Court also decided to grant the applicant anonymity and case-file confidentiality under Rules 33 and 47 § 4 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1988 in Margilan, Uzbekistan. He arrived in Russia on 2 October 2014. 8. On 5 September 2014 the applicant was charged in absentia with participation in the extremist religious movement Hizb ut-Tahrir al Islami and activities threatening the constitutional order. On the same day the authorities ordered his pre-trial detention and issued an international search and arrest warrant bearing his name. 9. On 24 December 2014 the applicant was arrested in Moscow. On 26 December 2014 the Cheremushkinskiy District Court of Moscow ordered and subsequently prolonged his detention. 10. On 22 January 2015 the applicant was further charged with organising a local branch of Hizb ut-Tahri al Islami in one of the regions of Uzbekistan. A. Extradition proceedings
11. On 23 January 2015 the Uzbek prosecution authorities requested the applicant’s extradition on the above charges. The request included assurances regarding the proper treatment of the applicant, which were formulated in standard terms. 12. On 21 May 2015 the applicant’s extradition in respect of certain charges was authorised by the Deputy Prosecutor General of the Russian Federation. 13. The applicant challenged this decision in the courts, arguing that he belonged to a vulnerable group and therefore faced a real risk of treatment contrary to Article 3 at the hands of the Uzbek authorities. 14. On 13 October 2015 his appeals were dismissed by a final decision of the Supreme Court of the Russian Federation. Without reference to any relevant evidentiary material, the Supreme Court considered that the applicant’s claims were hypothetical and lacked specific indications regarding the level of risk, and observed that the situation in a requesting state might change over time. It also found that the assurances of the Uzbek authorities were satisfactory. B. Refugee status proceedings
15. On 5 June 2015 the applicant lodged a request for refugee status, referring to persecution in Uzbekistan on religious grounds. 16. On 9 November 2015 his request was refused by a final administrative decision of the migration authorities. The applicant challenged this decision in the courts, referring inter alia to the risk of ill‐treatment. 17. On 18 May 2016 his appeals were dismissed by a decision of Moscow City Court. C. Other relevant proceedings
18. On 25 December 2015 the Meshchanskiy District Court of Moscow ordered the applicant’s expulsion for violating the migration rules. The applicant’s appeal, which referred to the risk of ill-treatment, amongst other factors, was dismissed by the Moscow City Court on 24 February 2016. 19. On 16 February 2016 the applicant applied for temporary asylum. No information concerning the outcome of these proceedings was supplied by the parties. II. RELEVANT DOMESTIC LAW AND PRACTICE
20. A summary of the domestic law and practice concerning extraditions was provided in the case of Mukhitdinov v. Russia (no. 20999/14, §§ 29-31, 21 May 2015 with further references). III. REPORTS ON UZBEKISTAN BY INTERNATIONAL NON‐GOVERNMENTAL HUMAN RIGHTS ORGANISATIONS
21. The relevant reports by the UN agencies and international NGOs on the situation in Uzbekistan up until 2015 were cited in the case of Kholmurodov v. Russia (no. 58923/14, §§ 46-50, 1 March 2016). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
22. The applicant complained under Article 3 of the Convention that the national authorities had failed to consider his claim that he could be at risk of ill‐treatment in the event of his removal to Uzbekistan, and that extradition would expose him 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.”
23. The Government contested these arguments. A. Admissibility
24. 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
25. The relevant general principles concerning the application of Article 3 have been summarised recently by the Court in the judgment F.G. v. Sweden ([GC], no. 43611/11, § 111-27, ECHR 2016) and in context of removals from Russia to Uzbekistan in Mamazhonov v. Russia (no. 17239/13, §§ 127-35, 23 October 2014). 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 and the assessment thereof by the national authorities
26. The Court has previously established that the individuals whose extradition was sought by the Uzbek authorities on charges of religiously or politically motivated crimes constituted a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to Uzbekistan. (see Mamazhonov, cited above, §141). 27. Turning to the present case, it is apparent that in the course of the extradition proceedings the applicant consistently and specifically argued that he had been prosecuted for religious extremism and faced a risk of ill‐treatment (see paragraph 11 above). The international search and arrest warrant and extradition request submitted by the Uzbek authorities were clear as to their basis, namely that he was accused of religiously and politically motivated crimes. The Uzbek authorities thus directly identified him with the groups whose members have previously been found to be at real risk of being subjected to proscribed treatment. 28. In such circumstances, the Court considers that the Russian authorities had at their disposal a sufficiently substantiated complaint pointing to a real risk of ill-treatment. 29. The Court is therefore satisfied that the applicant presented the Russian authorities with substantial grounds for believing that he faced a real risk of ill-treatment in Uzbekistan. (b) Duty to assess claims of a real risk of ill-treatment through reliance on sufficient relevant material
30. Having concluded that the applicant had advanced at national level a valid claim based on substantial grounds for believing that he 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 this claim adequately through reliance on sufficient relevant material. 31. Turning to the present case, the Court considers that in the extradition proceedings the domestic authorities did not carry out a rigorous scrutiny of the applicant’s claim that he faced a risk of ill-treatment in his home country. The Court reaches this conclusion having considered the national courts’ simplistic rejection – without reference to evidentiary material – of the applicant’s claims as hypothetical and lacking specific indications as to the level of risk, together with the comment that the situation in a requesting state might change over time. Moreover, the domestic courts’ unquestioning reliance on the assurances of the 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). 32. The Court also notes that the Russian legal system – in theory, at least – offers several avenues whereby the applicant’s removal to Uzbekistan could be prevented, given the risk of ill-treatment he faces there. However, the facts of the present case demonstrate that the applicant’s claims were not adequately considered in any relevant proceedings, despite being consistently raised. 33. The Court concludes that, although the applicant had sufficiently substantiated the claim that he would risk ill-treatment in Uzbekistan, the Russian authorities failed to assess his claims adequately through reliance on sufficient relevant material. This failure opened the way for the applicant’s extradition to Uzbekistan. (c) Existence of a real risk of ill-treatment or danger to life
34. 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 applicant would be exposed to such a risk in the event of his removal to Uzbekistan. 35. The Court notes that nothing in the parties’ submissions, nor available relevant material from independent international sources (see paragraph 21 above and also Human Rights Watch World Report 2016, Amnesty International report Fast-track to Torture: Abductions and Forcible Returns from Russia to Uzbekistan, 21 April 2016), nor previously adopted judgments and decisions (see recently Kholmurodov v. Russia, no. 58923/14, 1 March 2016, and Mukhitdinov v. Russia, no. 20999/14, 19 October 2015), indicate that there has been any improvement in either the criminal justice system of Uzbekistan in general or in the specific treatment of those prosecuted for religiously and politically motivated crimes. 36. The Court has given due consideration to the available material disclosing a real risk of ill-treatment to individuals accused, like the applicant, of religiously and politically motivated crimes, and concludes that authorising the applicant’s removal to Uzbekistan exposed him to a real risk of treatment contrary to Article 3 of the Convention. (d) Conclusion
37. 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 applicant were to be removed to Uzbekistan. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
38. The applicant complained under Article 13 of the Convention of a lack of effective domestic remedies in Russia in respect of his complaint under Article 3 of the Convention. Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
39. The Court notes that this complaint is intrinsically linked to those examined above and must therefore likewise be declared admissible. 40. In view of the findings made under Article 3 of the Convention, the Court does not consider it necessary to deal with the complaint under Article 13 of the Convention. III. APPLICATION OF AN INTERIM MEASURE UNDER RULE 39 OF THE RULES OF COURT
41. On 8 October 2015 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or another country 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 measure indicated to the Government under Rule 39 of the Rules of Court should be discontinued. IV. 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.”
45. The applicant claimed 10,000 euros (EUR) in respect of non‐pecuniary damage. 46. The Government did not advance any specific argument in this respect and was of the view that any award should be made in compliance with the Court’s established case-law. 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 applicant were to be removed to Uzbekistan 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). B. Costs and expenses
48. The applicant claimed EUR 6,300 for the costs and expenses incurred before the domestic courts and before the Court, EUR 4,400 being payable for the services of Ms D. Trenina and EUR 1,900 for the services of Ms E. Davidyan. 49. The Government did not advance any specific argument in this respect and considered that any award should be made in compliance with the Court’s established case-law. 50. Regard being had to the documents in its possession and to its case‐law, the Court considers it reasonable to award the sum of EUR 6,300 covering costs under all heads, with EUR 4,400 awarded to Ms D. Trenina and EUR 1,900 to Ms E. Davidyan. C. Default interest
51. 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. Declares the application admissible;
2. Holds that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Uzbekistan;
4. Holds that there is no need to examine the complaint under Article 13 of the Convention;
5. Decides to discontinue the measure indicated to the respondent Government under Rule 39 of the Rules of Court that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or another country for the duration of the proceedings before the Court;
6. Holds that the finding that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Uzbekistan in itself constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
(a) that the respondent State is to pay the applicant’s representatives, within three months of the notification date, EUR 6,300 (six thousand three hundred euros), of which EUR 4,400 (four thousand four hundred euros) is payable to Ms D. Trenina and EUR 1,900 (one thousand nine hundred euros) to Ms E. Davidyan, to be converted into the currency of the respondent State at the rate applicable at the date of settlement plus any tax that may be chargeable, in respect of costs and expenses;
(b) 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident