A.R. v. RUSSIA
Inadmissible
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
1. The applicant, Mr A.R., is a Tajikistani national, who was born in 1976. 2. The applicant, who has been granted legal aid, is represented before the Court by Ms I. Sokolova, a lawyer practising in Ivanovo. 3. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. 4. According to the applicant, he joined the Democratic Party of Tajikistan in 1996. At that time it was, and apparently it remains, in opposition to the ruling regime. Following a murder attempt in 1997 against the Tajikistani President, some members and supporters of the party were reportedly arrested and tortured. Allegedly, the applicant was also arrested during that time. He submitted that he had been tortured by way of blows to his hands, back and head, causing loss of vision in his right eye. He had declined the offer to collaborate with the Secret Service on the party members and their activities. The party has now split into two factions: one is apparently loyal to the ruling regime, while the other is led by supporters of the former leader of the party, Mr Iskandarov (see Iskandarov v. Russia, no. 17185/05, 23 September 2010), who have been persecuted. 5. Fearing persecution, the applicant left for Kazakhstan. Allegedly, in 2000 the authorities were looking for him and arrested his brother. The applicant went back to Tajikistan between 2000 and 2004 (allegedly, remaining in hiding). In 2004 he obtained a new passport from the Tajik authorities (allegedly, through an acquaintance). 6. The applicant arrived in Russia in 2007. It appears that at the time Tajik nationals did not require a visa to enter Russia. 7. Since 2007 the applicant has been living in Russia in an unregistered relationship with Ms Z. 8. The applicant and Z. have two children together, born in 2008 and 2011. It appears that Z.’s first child, who was born in 1996 from her previous relationship, has been residing with Z. and the applicant. Z. and the children are Russian nationals. 9. In May 2011 the Migration Authority of the Ivanovo Region granted the applicant a temporary residence permit valid until May 2014. 10. In December 2011 Mr Ts. informed the Ivanovo office of the Federal Security Service (“the FSB”) that the applicant had given him several publications about Hizb-ut-Tahrir, a prohibited organisation in Russia. 11. In November 2012 the Ivanovo regional prosecutor applied to the Oktyabrskiy District Court, Ivanovo (“the District Court”), asking it to classify those publications as “extremist”. The court granted his request. The applicant was not party to the proceedings. 12. On 13 February 2013 the FSB interviewed the applicant, having informed him of his right not to testify against himself. According to the interview record, the applicant stated as follows: in 2002-03 he had studied Islam with his friend, reading together various writings, inter alia, calling for the creation of an Islamic Caliphate; in 2007 he learnt that the Tajikistani Security Service had arrested his friend and some of his relatives; fearing arrest himself, he had moved to Moscow where he obtained a work permit; there he met two Kyrgyz nationals who appeared to be supporters of Hizb-ut-Tahrir; a year later one of them provided the applicant with some publications, which he then gave to Ts. 13. According to the applicant, an FSB officer told him that the Tajik authorities “were looking for him”. 14. The FSB wrote to the regional migration authority recommending that the applicant’s residence permit be annulled. 15. On 27 February 2013 the authority annulled the residence permit on the basis of section 7 of the Foreigners Act (see paragraph 40 below). The applicant was informed that he could seek judicial review of the annulment decision or re-apply for a temporary residence permit in a year’s time; that he was obliged to leave Russia within fifteen days; and that if he failed to leave the country he would be deported. 16. The applicant did not seek judicial review of the annulment decision. However, he appointed a lawyer and they both considered that given the imperative indication in section 7 of the Foreigners Act, there would be no prospect of success in claiming reinstatement of the residence permit on account of a risk of death or torture if the Tajik authorities became aware of the findings made by the Russian FSB in respect of the applicant. Instead, in December 2013 the applicant decided to attempt to regularise his stay in Russia by applying for refugee status (see paragraph 23 below). For this purpose, his lawyer obtained access to the case file concerning the residence permit. According to the lawyer, the file contained only the FSB’s letter to the migration authority (see paragraph 14 above). 17. On 5 March 2014 the FSB issued the applicant with a “warning” (предостережение) against “unacceptable actions that create a basis for committing crimes falling within the FSB’s competence” (see paragraph 44 below). The warning read as follows: “[The applicant] has expressed his intention to take part in the activities of the international terrorist organisation Hizb-ut-Tahrir, which has been classified as ‘terrorist’ by the Russian Supreme Court. The indicated actions create a basis for committing crimes under Article 205.5 of the Criminal Code”. 18. Subsequently, the applicant denied membership of Hizb-ut-Tahrir or participation in its activities. 19. The applicant’s lawyer challenged the “warning”, indicating that the FSB’s allegations in respect of the applicant were unsubstantiated; he had never been a member of the prohibited organisation; and none of his previous actions or utterances had indicated an intention to take part in the activities of that organisation. The lawyer also challenged the “warning” as being an unsubstantiated and disproportionate interference with the applicant’s private life, exposing him to a risk of removal to Tajikistan and of ill-treatment there on account of the Tajik authorities’ awareness of the FSB’s suspicion in respect of him. 20. On 20 May 2014 the District Court upheld the “warning” on judicial review. The court stated that Ts.’s and the applicant’s own testimonies confirmed that the applicant had had contacts with people who were implicated in the activities of the prohibited organisation; as confirmed by Ts., the applicant had handed over to him publications that had an “extremist” content, as then confirmed by a court. The Russian legislation prohibited dissemination, possession and production of extremist material. In certain circumstances those actions constituted an offence; an extremist activity was also punishable in criminal law, civil law and otherwise. The “warning” had not violated any of the applicant’s rights or freedoms. 21. The applicant appealed, arguing that nothing in his own statement to the FSB had disclosed an intention to take part in the “activities of the prohibited organisation” or elements of corpus delicti under Article 205.5 of the Russian Criminal Code; the impugned events dated back to December 2010 while the “warning” was meant to concern some continuing activity; the applicant had no knowledge of the “extremist” content of the publications, which was only subsequently established by a court in proceedings to which he had not been a party. The applicant concluded that in substance the proceedings against him and the resulting “warning” amounted to a finding of criminal guilt without either the benefit of a judicial procedure or the attending safeguards of criminal proceedings, including the presumption of innocence (Articles 49 and 118 of the Russian Constitution). 22. On 13 August 2014 the Ivanovo Regional Court dismissed the applicant’s appeal. The appeal court discarded as “farfetched” the arguments under Articles 49 and 118 of the Constitution and endorsed in substance the reasoning of the District Court. On an unspecified date, the Regional Court rejected the applicant’s subsequent appeal on points of law. It appears that in March 2015 the Supreme Court of Russia rejected the second appeal on points of law. 23. After the annulment of his residence permit, in December 2013 the applicant applied to the regional migration authority seeking refugee status. 24. The applicant submitted that as an ordinary member of the Democratic Party of Tajikistan, he had attended meetings and complied with the leaders’ orders; after the attempted assassination of the Tajik President in 1997, he had been arrested and tortured (blows to his fingers with a gun handle and blows to his spine and head); he had left for Kyrgyzstan and had then returned to Tajikistan, where he had stayed in different towns until late 2006. 25. By decision of 14 March 2014 the regional migration authority dismissed the applicant’s application for refugee status and ordered him to leave Russia within three days. 26. In reply to a request from the applicant’s lawyer, on 6 May 2014 the Moscow office of the United Nations High Commissioner for Refugees (“the Moscow UNHCR office”) issued an information document. Referring to some of the findings made in the 2013 United Nations report on Tajikistan and some other reports, the UNHCR office made the following comments: “In view of the numerous violations of human rights and fundamental principles of international law by the Tajik authorities, the widely used practice of torture and cruel treatment at the hands of law enforcement officers, in particular with the aim of extracting confessions in criminal cases ... the UNHCR considers that people who are suspected in relation to political activities of a religious nature run a real risk of persecution in the form of torture in Tajikistan ... Therefore, having regard to the international instruments ratified by Russia, in no circumstances should Mr R. be extradited, as he is seeking asylum on account of a risk of torture if returned to the country of nationality. We hope that this information will be taken into account during the examination of your client’s case.” 27. The applicant sought judicial review of the refusal to grant refugee status, contesting the reliance on the document of 14 January 2014 as the migration authority’s only source of information about Tajikistan. He referred to the Court’s findings in the Iskandarov judgment mentioned above and a number of other sources. 28. By a judgment of 8 May 2014 the District Court upheld the decision of 14 March 2014. The court stated, inter alia, that had the applicant had genuine reasons for seeking asylum, he would have made an application immediately after his arrival in Russia. The applicant appealed. On 21 July 2014 the Regional Court dismissed the applicant’s appeal. 29. Having been unsuccessful with his application for refugee status (see paragraph 25 above), in April 2014 the applicant applied to the regional migration authority for so-called “temporary asylum” (see paragraph 43 below). 30. On 10 July 2014 the authority dismissed the application. On 3 October 2014 the Federal Migration Authority upheld the lower authority’s decision. 31. The applicant sought judicial review of the refusal of temporary asylum. He argued that the migration authority had not assessed whether the FSB’s warning on suspicion that he might commit a criminal offence of an extremist nature substantiated his argument that he was at risk of illtreatment at the hands of the Tajik authorities, who were aware of the FSB’s warning. 32. On 11 December 2014 the District Court upheld the decision to refuse temporary asylum. On 25 February 2015 the Ivanovo Regional Court dismissed an appeal lodged by the applicant. On 29 June 2015 the same court dismissed a subsequent appeal on points of law lodged by the applicant. The applicant lodged a second appeal on points of law before the Supreme Court of Russia, which dismissed that appeal on 14 September 2015. 33. The applicant unsuccessfully sought an extension of his permission to stay in the country pending appeals against the decision to refuse him temporary asylum. On 8 September 2014 the District Court upheld the decision. On 17 November 2014 the Regional Court upheld the judgment on appeal. It appears that a subsequent appeal on points of law lodged by the applicant was dismissed in April 2015. 34. Allegedly, the applicant has been subjected to covert supervision by law-enforcement officials wearing plain clothes; questions about him were raised with his neighbours; and his relatives in Tajikistan were questioned and their homes searched. Since February 2015, the applicant has not left his home, fearing abduction with a view to forcibly transferring him to Tajikistan. 35. In May 2015 the applicant’s lawyer asked the migration authority about their intention to expel the applicant. No reply has been received. 36. It appears that the applicant has applied to the UNHCR office for help with resettlement. That request is pending. 37. According to the applicant, on an unspecified date in 2015, officers from the Tajik Security Service arrested his brother; he was subsequently released but was required to assist the authorities in obtaining the applicant’s return to the country. 38. It appears that the applicant is currently considered as a foreigner “temporarily present in Russia”, which, according to him, gives him an opportunity to move within the region but not to work. 39. The Foreigners Act (Federal Law no. 115-FZ of 25 July 2002) provides that a foreigner can be temporarily present on Russian territory for a period specified in a visa or, for foreign nationals not required to obtain a visa, for ninety days unless otherwise provided for by the Act (section 5). 40. Section 7 of the Foreigners Act requires that a temporary residence permit be annulled if the foreigner (i) has expressed himself in favour of a radical change in the constitutional regime of the Russian Federation or, by way of other actions, poses a threat to the security of the Russian Federation or its citizens; (ii) has made financial contributions or planned terrorist or extremist acts, has provided assistance to others in the commission of such acts, or has supported terrorist (extremist) activities by way of other actions. 41. After the annulment of a temporary residence permit or a residence permit, the foreigner concerned must leave Russia within fifteen days; failure to do so will lead to deportation (section 31 of the Act). 42. A decision to deport should be taken by a chief officer of the local migration authority (paragraph 6 of the Instruction issued by order no. 240 of 12 October 2009 by the Federal Migration Authority). 43. Section 12 of the Refugees Act provides that temporary asylum may be granted where (i) the foreigner has grounds for acquiring refugee status but only requests a possibility to remain in Russia for some time; or (ii) the foreigner has no grounds for acquiring refugee status but should not be expelled from Russia for “humanitarian reasons”. Having received temporary asylum, the person may not be returned against his will to the country of nationality or the country of habitual residence. 44. Sections 13 and 13.1 of the Federal Security Service Act (Federal Law no. 40-FZ of 3 April 1995) provides that, in the absence of grounds for instituting criminal proceedings, the FSB has competence to issue and inform the person concerned of an “official warning” (официальное предостережение) about unacceptable actions that create conditions for the commission of certain crimes. Such a “warning” is classified as a measure of prevention (мера профилактики) that may be implemented for the purpose of preventing the commission of such criminal offences.