CASE OF ESHONKULOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicant was born in 1983 and has lived in Moscow since 15 May 2012. 7. On 27 April 2013 the applicant was arrested in Moscow on the basis of an arrest warrant that had been issued on 15 November 2012 by a criminal court in the Uzbek city of Qarshi. The applicant was charged with participation in banned religious organisations, including the Islamic Movement of Uzbekistan, dissemination of ideas of religious extremism, and organisation of illegal departure of persons to foreign countries, including for training in terrorist camps in Pakistan. 8. On 30 April 2013 the Simonovskiy District Court of Moscow approved the applicant’s detention pending extradition. Following the receipt of extradition request, the applicant’s detention was extended until 27 October 2013. 9. On 22 October 2013 the Russian Prosecutor General granted the request of his Uzbekistani counterpart for the applicant’s extradition. The extradition decision read in particular as follows: “Mr Eshonkulov is accused of ... having committed the following crimes in the period from December 2011 to September 2012 in the territory of the Russian Federation: - undermining the constitutional foundations of the Uzbekistan Republic by means of public calls to extremist activities ... calls for forcible removal of the State leaders of Uzbekistan ... incitement to undergoing training in the special sabotage and terrorism training facilities of the international terrorist organisation ‘Islamic Movement of Uzbekistan’ ... - used the money from his accomplices to purchase videos of the international terrorist organisation ‘Islamic Movement of Uzbekistan’ ... propagating the ideas of religious extremism, separatism and fundamentalism, calls to pogroms and extermination of unfaithful, and distributed those videos among Uzbek nationals ... ... The fact that Mr Eshonkulov committed crimes ... in the territory of the Russian Federation is not an obstacle to his being extradited, since the Russian competent authorities did not institute any criminal proceedings in connection with these crimes ...” 10. On 27 October 2013 the maximum six-month period of the applicant’s detention pending extradition expired. From the remand prison he was taken to the Donskoy district police station where an assistant prosecutor communicated the release order to him. On his way out of the police station, the applicant was arrested for an infringement of migration rules. 11. On 1 November 2013 counsel for the applicant submitted an appeal against the extradition decision to the Moscow City Court, complaining that the Prosecutor General gave no assessment to the risk of torture. 12. By judgment of 28 November 2013, the Moscow City Court rejected their challenge to the extradition decision, finding that there was no evidence that the applicant would be subject to unlawful prosecution or torture in Uzbekistan, and noting the assurances provided by the Uzbekistani Government to the Russian Prosecutor General. It refused to examine the reports by international human rights NGOs and UN bodies about the situation in Uzbekistan which the defence prayed in aid, finding that those documents had no direct bearing on the issues considered. 13. On 19 February 2014 the Supreme Court of the Russian Federation examined and rejected the final appeal against the extradition order. It refused likewise to take into consideration translations of the Court’s judgments in similar cases or the documents from NGOs and UN bodies. 14. Following the applicant’s release from custody, by judgment of 28 October 2013, the Simonovskiy District Court of Moscow found him guilty of having been unlawfully resident in Russia from February 2013 and until his arrest on 27 April 2013. The District Court sentenced the applicant to a fine and administrative expulsion from Russia. Pending expulsion, he was to be detained in Moscow Centre for Detention of Foreign Nationals no. 1. 15. On 27 February 2014 the Moscow City Court upheld the District Court’s judgment. It refused to take into account the arguments by the defence about the risk of ill-treatment that the applicant would face in Uzbekistan, stating that such arguments were “based on conjectures” and were not supported with the materials in the case file. In the City Court’s view, the information on Uzbekistan concerned the general situation in the country and was not indicative of a violation of the rights of the specific individuals. As regards the alleged violation of Article 5 of the Convention, the City Court simply stated that there was no violation and that the Court’s findings in the Azimov v. Russia case were irrelevant. 16. On 20 May 2013 the applicant applied for asylum; the Russian Federal Migration Service rejected his application on 24 September 2013. On 24 October 2013 he asked for a judicial review of the refusal. 17. On 16 December 2013 the Basmannyi District Court of Moscow dismissed the applicant’s appeal, finding that the applicant had not produced sufficient evidence of the risk of persecution. It held that the “reason why [the applicant] does not wish to return to Uzbekistan is his fear of the real danger of criminal prosecution”. The court found no political motives in the charges levelled against the applicant and observed that the acts he was charged with were also criminal under Russian criminal law. The District Court observed that the applicant had applied for asylum only after his arrest in Russia rather than immediately after he had arrived to Russia. 18. The applicant appealed to the Moscow City Court. The City Court considered and rejected his appeal on 20 June 2014. On the alleged risk of ill-treatment, it held as follows: “...The claimant’s assertion that ‘his cousins are serving sentences in Uzbekistan for their religion’ ... cannot be taken into consideration because he has not produced any evidence to substantiate his claim. Making a global assessment of the submissions, the first-instance court correctly considered that there were no grounds to assume that the claimant would face a real risk of inhuman treatment. Applying the standards for the assessment of the allegation of ill-treatment in case of his return to Uzbekistan (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 65, ECHR 2005I), the court considers that the ill-treatment which the claimant may allegedly face in Uzbekistan would not reach the minimum threshold of severity attracting the protection of Article 3 of the Convention.”