CASE OF KAMALIYEVY v. RUSSIA
Remainder inadmissible;No violation of Art. 8;Violation of Art. 34;Just satisfaction reserved
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
7. The first applicant was born in 1958. He is currently serving a prison sentence in Uzbekistan. His representatives have had no contact with him since his expulsion. The second applicant was born in 1958 and lived in the Tyumen Region, Russia. She died in August 2008. 8. According to the first applicant, then named Tursinov, he arrived in Russia from Uzbekistan in 1997. The Government disputed the date of the first applicant's arrival in Russia, pointing to the absence of any documents in connection with it. 9. On 29 November 2000 he obtained Russian internal identity papers (“the passport” in question). 10. On 28 December 2000 the first applicant married the second applicant and took her surname, Kamaliyev. On 16 February 2001 he obtained a new passport, containing his new name. 11. In their submissions of September and December 2008 the Government stated that at the relevant time the first applicant had been in a valid marriage concluded in Uzbekistan in 1979, from which he had four children. They submitted a copy of the certificate of the first applicant's marriage, issued by the Namangan Department of the Ministry of Justice of Uzbekistan in April 2008. 12. On 10 January 2004 a new Russian internal passport was issued to the first applicant, who had reached the age of forty-five. 13. On 10 February 2006 the Federal Migration Service (FMS), following an internal investigation, established that the first applicant's passport had been issued in breach of the lawful procedure and declared it invalid. The FMS found that the first applicant had obtained a Russian identity document without having properly obtained Russian nationality and that his name had not been entered in the relevant registers. The first applicant had never applied for, or received Russian nationality and the identity document in question could not be held as proof to the contrary. The head of the police unit which had issued the passport had been subjected to disciplinary measures for breaching the relevant legislation. 14. In February 2006 the police, aided by the FMS, seized the applicant's internal passport. It appears that after that the first applicant remained in Russia without obtaining any other residence documents. 15. On 6 March 2006 the Prosecutor's Office of the Central District of Tyumen found that the archives of the passport service which had issued the first applicant's passport in 2000 had been destroyed in January 2005, in line with instructions issued at the time. It concluded that there were no reasons to open a criminal investigation into the actions of the officers of that department. 16. On 16 March 1999 the deputy prosecutor of the Namangan Region in Uzbekistan issued a decision to charge and detain the first applicant for attempted subversion of the constitutional regime. It appears that some time later an international search warrant was issued. 17. On 31 October 2005 the head of the police department of the Namangan Region in Uzbekistan informed his counterpart in the Tyumen Region that the first applicant was being sought in Uzbekistan for a breach of State security and asked him to locate the applicant. The same letter indicated the first applicant's address in Tyumen and stated that he had unlawfully obtained a Russian passport. 18. On 9 February 2006 the applicant was arrested with a view to extradition and placed in the Tyumen Region temporary detention centre no. IZ-72/1 (ФГУ ИЗ-72/1). 19. On 23 March 2006 the deputy Prosecutor General of Uzbekistan requested the applicant's extradition on the ground that he was charged with belonging to an extremist religious organisation, known as “Wahhabi”, incitement of religious hatred and attempted subversion of the constitutional regime. The crimes had been committed in 1990-1993. 20. On 5 May 2006 the Kalininskiy District Court examined a request by the Tyumen Regional Prosecutor to have the applicant placed in detention with a view to his extradition to Uzbekistan, where he was accused of inciting racial, national or religious hatred, attempted subversion of the constitutional regime, and the creation and leadership of extremist organisations of a religious, separatist, fundamentalist nature, or other prohibited organisations, crimes which were defined by Articles 156 § 2 (d), 159 § 3 (b) and 244 § 2 respectively of the Criminal Code of Uzbekistan. 21. The court, having noted that those acts were also punishable under Articles 282 § 2, 280 and 282-1 of the Criminal Code of the Russian Federation and that the applicant was an Uzbek citizen, ordered that the applicant be placed in detention pending extradition. The court noted that the applicant had unlawfully obtained a Russian passport. 22. On 20 December 2006 the Deputy General Prosecutor refused to extradite the first applicant because the acts with which he had been charged did not constitute a crime under Russian law and because the prescription period for other acts had expired. 23. On 26 December 2006 the Tyumen Regional Prosecutor ordered the applicant's release. 24. On 1 August 2006 the first applicant requested the Tyumen Regional Department of the FMS to grant him refugee status. In his application he indicated that he had Uzbek nationality, but that in 2000 he had received a Russian passport and had married the second applicant. The first applicant gave the unstable economic and political situation and absence of work as the reasons for his departure from Uzbekistan. He denied that he had ever committed a crime in Uzbekistan. 25. On 11 November 2006 he was questioned by officials of the FMS about the details of his claim. In the questionnaire the first applicant indicated his nationality as Uzbek and submitted details of his national identity papers. He also submitted that he had divorced his first wife in 1996 in Uzbekistan. As regards his Russian passport, the first applicant submitted that a relative of his wife had helped him to obtain the documents. That man, whose name he could not recall, had died in 2002. As to his fear of persecution in Uzbekistan, the first applicant explained that he had learned of the criminal proceedings pending against him there when he was detained in Russia in February 2006. He denied having any connection to the charges brought against him and stated that he did not believe that he would have a fair trial in Uzbekistan. The first applicant also stated that he feared for his safety in that country. 26. The outcome of this request is unclear. The first applicant did not refer to this application in the subsequent proceedings. 27. On 23 November 2007, during an identity check, the applicant was arrested in Tyumen as an unlawfully resident alien. 28. On the same day the Tsentralnyy District Court of Tyumen reviewed the applicant's administrative offence case. According to the transcript of the hearing, the first applicant stated that he had lived in Russia since 1997, had traded in fruit and then married. He stated that in 2006 his Russian passport had been taken away from him as part of the procedure for obtaining nationality, but that he did not know the outcome of that procedure. He denied having committed any violations of the Russian legislation. When asked by the judge whether he had been aware that a search warrant had been issued for him in Uzbekistan, the first applicant replied that he had not committed any crimes. He also stated that he had changed his family name because of his marriage. The District Court found the first applicant guilty of a violation of the residence rules for aliens, in that he had failed to take any steps to get a residence permit or to obtain nationality by legal means. It imposed a fine of 2,000 Russian roubles (RUB) and ordered that the first applicant be expelled from Russia. 29. On 30 November 2007 the applicant's lawyer lodged an appeal against the decision of 23 November, arguing that the extradition would sever the applicant's ties with his Russian family, in view of the ensuing five-year ban on re-entering the country. He therefore asked the Regional Court to alter the sentence and not to order the first applicant's deportation. 30. On 3 December 2007, on instructions from the first applicant, “Civil Assistance” (Комитет “Гражданское содействие”) an NGO which specialises in providing assistance to refugees from Central Asia, submitted to the European Court of Human Rights a request for suspension of the first applicant's extradition to Uzbekistan. They stated that the first applicant had been charged in Uzbekistan with crimes against the state security and membership of a religious organisation, that he would certainly be detained upon arrival and that the risk of torture for this category of persons was recognised by all available international sources. In that letter the representative indicated that the next flight from Tyumen to Uzbekistan was scheduled for 2 a.m. on 5 December 2007 (4 December 2007, 10 p.m. CET). There is a two-hour difference between Moscow and CET and another two-hour difference between Tyumen and Moscow. 31. On the same day, on 3 December 2007, the Court indicated to the Russian Government that, under Rule 39 of the Rules of Court, it was adopting an interim measure for suspension of the extradition. The letter to the Government, indicating the application of a preliminary measure, was received by the Office of the Representative at 7.50 p.m. CET. According to the Government, on 4 December 2007 the information about the application of the interim measure was forwarded to the Ministry of the Interior and the FMS. 32. The applicants' representative submitted that on 4 December 2007 she had forwarded a copy of the Court's letter of 3 December 2007 indicating the preliminary measure to the office of the Tyumen Prosecutor's Office and the Main Department of the Interior of the Tyumen Region. 33. On 4 December 2007 the Tyumen Regional Court held a hearing in the absence of the first applicant and his legal counsel. The court established that the applicant was a citizen of Uzbekistan, that the Russian passport had been issued in breach of the relevant provisions, that the applicant had not submitted a request for naturalisation to the competent police department and that, according to the consular register of the Ministry of Foreign Affairs, he had not obtained Russian nationality. Equally, between 10 February 2006, the date on which his passport had been confiscated, and 23 November 2007, the day on which his identity papers were checked, the applicant had been unlawfully present on the territory of Russia and had taken no steps to declare his residence. The court held that the argument with regard to the potentially lengthy separation of the applicant and his wife and that alleging the applicant's lack of fault in the issue of the Russian passport were incidental. The court upheld the decision of 23 November 2007. 34. The applicants' representative informed the Court of that decision on the same day. On 4 December 2007 the Court forwarded an additional letter to the Office of the Representative, alerting them to the decision of the Tyumen Regional Court and drawing their attention to the fact that the first applicant's expulsion from Tyumen had been scheduled for 5 December 2007, 2 a.m. local time. This letter reached the Office in Moscow at 10.30 p.m. 35. On 5 December 2007 at 2.25 a.m. local time the first applicant was deported to Uzbekistan. 36. According to the applicants, upon his arrival in Tashkent the first applicant was arrested and charged with the crimes for which his extradition had been sought from Russia earlier. The second applicant informed the Court in February 2008 that in January 2008 she had received a phone call from her husband's relatives in Uzbekistan. They claimed that he had been detained at the Namangan Detention Facility and that he had been subjected to torture. After that she was unable to reach the first applicant's relatives by phone. 37. In response to the Court's request, in December 2008 the Government submitted that they had obtained unofficial information that on 26 February 2008 the first applicant had been tried and found guilty in Namangan. He was sentenced to eleven years in prison for incitement to racial hatred, attempts to overthrow the constitutional regime and participation in prohibited religious organisations. The Government had no further information about the first applicant's whereabouts from the Uzbek authorities. They indicated that as the first applicant had been a national of Uzbekistan and did not have Russian nationality, there were no legal grounds for the Russian authorities to intervene on his behalf. The applicants' representatives had no way of contacting him in detention. It appears that in 2008 he was serving his sentence in the Tashkent Region. 38. On 20 August 2008 the second applicant died. 39. For a summary of the relevant Russian law and practice on issues of detention, extradition and expulsion of foreign nationals, see Muminov v. Russia (no. 42502/06, §§ 45-62, 11 December 2008). 40. For a review of the situation in Uzbekistan at the relevant time, see Muminov (cited above, §§ 67-72) and Ismoilov and Others v. Russia (no. 2947/06, §§ 74-79, 24 April 2008).