CASE OF ISMAILOV 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 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
6. The applicant was born in 1980. Prior to his arrest in 2012 he resided in Arzamas, in the Nizhniy Novgorod Region. He is currently detained in the special detention facility in Balakhna, in the Nizhniy Novgorod Region. 7. Until April 2011 the applicant lived in Uzbekistan. His family members, including a minor son, live in Uzbekistan. From 2001 onwards he went to Russia on several occasions, in order to earn money. 8. On 12 April 2011 the applicant arrived in Russia to look for employment. On 12 July 2011 the period of the applicant’s lawful residence in Russia expired. 9. On 24 January 2012 he was fined for failure to comply with immigration laws. He did not leave the country at that point. 10. On 12 June 2012 the investigator at the Department of the Interior of the Andizhan Region of Uzbekistan charged the applicant with establishing, leading or participating in religious extremist, separatist, fundamentalist or other prohibited organisations (Article 244-2 of the Uzbek Criminal Code). The applicant was accused, in particular, of membership of a banned religious extremist organisation, “the Islamic Movement of Uzbekistan”, and a terrorist organisation, “O’zbekiston Islomiy Harakati”, between late 2008 and October 2009. According to the relevant investigator’s decision, the applicant, together with his brother and two other persons, “planned to destroy the constitutional order of Uzbekistan” and then “to create an Islamic State on the territory of Nizhniy Novgorod, Russia”. For these purposes they had moved to Russia and started to “study the ideology of the head of the terrorist movement, Tohir Yo’ldoshev, and Jumaboi Khojayev, also known as Jummah Namangani”. Further, together with other members of O’zbekiston Islomiy Harakati, they had planned an attack with intent to destroy the constitutional order of Uzbekistan and other countries in order to create an Islamic State there. They had also attempted to “carry out terrorist attacks”. The investigator stated that there was sufficient evidence against the applicant, without giving further details. 11. On the same date, the Andizhan Town Court of Uzbekistan ordered the applicant’s arrest and his name was put on a cross-border wanted list. 12. On 13 September 2012 the applicant was arrested in the town of Arzamas in the Nizhny Novgorod Region, pursuant to a request by the Uzbek authorities, and was detained pending extradition. 13. On 12 October 2012 the Deputy Prosecutor General of the Republic of Uzbekistan submitted a formal request for the applicant’s extradition. The request contained assurances that the applicant would be prosecuted only for the offences for which he was extradited, that he would be able to freely leave Uzbekistan when he had stood trial and served any sentence, and that he would not be expelled or extradited to a third State without the consent of the Russian authorities. The Uzbek prosecutor’s office further assured its Russian counterpart that the applicant would not be prosecuted in Uzbekistan on political or religious grounds, that he would not be subjected to torture or other inhuman or degrading treatment, that he would be provided with an opportunity to defend himself, inter alia through legal assistance, and that the criminal proceedings against him would be conducted in compliance with the domestic law of the Republic of Uzbekistan. It was pointed out in the letter that all forms of inhuman and degrading treatment were prohibited in the destination country. 14. On 12 November 2012 the lawyer representing the applicant in the domestic proceedings filed objections against the extradition request. He argued that according to independent international observers, illtreatment was widespread in the Uzbek prison system and fair trial guarantees were not respected. Referring to the Court’s case-law on the matter, he submitted that the applicant, who was charged with a religious offence, would run a risk of illtreatment and would be deprived of the minimum fair trial guarantees if extradited to the requesting country. 15. On 9 April 2013 the Prosecutor General’s Office of Russia refused the Uzbek authorities’ extradition request. It appears that the decision was not appealed against, and the extradition proceedings were discontinued. The parties did not submit a copy of the decision. 16. By a letter of 12 August 2013 the Prosecutor’s General Office, in reply to a letter from the applicant’s lawyer, notified the applicant of the decision to refuse his extradition to Uzbekistan. 17. On 15 September 2012, that is, two days after the applicant’s arrest, the Arzamas Town Court authorised his detention pending extradition. It appears that the decision was not appealed against. 18. On 12 November 2012 the Town Court extended the period of his detention to a total of six months, that is, until 12 March 2013. That decision was upheld by the Nizhniy Novgorod Regional Court on appeal on 11 December 2012. Until 11 March 2013 the applicant was detained in remand prison FKU SIZO-3 in the Vadskiy District of the Nizhniy Novgorod Region. 19. On 11 March 2013, that is, one day before the date when he was due to be released, the applicant was transferred to the Arzamas police station. On 12 March 2013 the authorised term of his detention pending extradition expired, and the Arzamas town prosecutor ordered the applicant’s release. 20. According to the applicant, at midnight on 12 March 2013 he was let out into the internal yard of the police station. He was not provided with any documents confirming his release from custody. Immediately afterwards, at 0.05 a.m. on 13 March 2013, he was arrested in the yard by officers of the local department of the Federal Migration Service in connection with a violation of immigration laws (Article 18-8 of the Code of Administrative Offenses (“the CAO”)) and taken into custody. 21. The Government submitted that “according to the [case] materials on the applicant’s detention” he had had to be released from custody at 7 p.m. on 12 March 2013. 22. According to the custody register at the Arzamas police station, the applicant was released from detention at 11.55 p.m. on 12 March 2013, on account of the expiry of the time-limit for his detention. 23. According to the Arzamas Town Court’s decision of 13 March 2013 (see paragraph 28 below), the applicant was arrested at 0.05 near the Arzamas police station in the course of an “extraordinary check” by the Arzamas unit of the Nizhniy Novgorod Regional Department of the Federal Migration Service. 24. At 1.20 a.m. on 13 March 2013 an officer of the Arzamas Department of the Interior drew up a record of the applicant’s arrest “for the establishment of the circumstances of an administrative offence following a request by the Arzamas Department of the Federal Migration Service.” At some point in the morning of 13 March 2013 an administrative-offence record was drawn up in respect of the applicant in connection with his failure to leave Russia after 12 July 2011. At some point on 13 March 2013 the applicant was interviewed by the head of the Arzamas unit of the Federal Migration Service and submitted, inter alia, that he had not applied for refugee status in Russia and had not had valid reasons not to leave Russia. 25. On 13 March 2013 the Arzamas Town Court of the Nizhniy Novgorod Region examined the applicant’s case. During the hearing the applicant acknowledged that he had not left Russia after 12 July 2011, contrary to the requirements of the immigration laws. However, his representative submitted that, in accordance with Article 28.1 of the CAO, administrative proceedings should have been brought against him immediately upon the obtaining of sufficient data indicating the occurrence of an administrative offence. The applicant had been arrested on 13 September 2012, and by 14 or 15 September 2012 the authorities had been in possession of sufficient information on the applicant’s immigration status. However, administrative proceedings had been brought against him only six months later, once the term of his detention pending extradition had expired. In these circumstances, the defence considered that the administrative removal of the applicant, if ordered, would amount to a form of extradition in disguise. 26. The defence further referred to reports by the UN, international nongovernmental organisations, and the Court’s case-law, arguing that the applicant was wanted by the Uzbek authorities in connection with charges relating to a religious offence, and thus he would run a risk of illtreatment if expelled to Uzbekistan. 27. Finally, they submitted that in any event his expulsion could not be ordered, since refugee-status proceedings were pending in respect of him. They pointed out in this connection that he had appealed against the refusal of 7 December 2012 to grant him refugee status (see paragraph 36 below) and had received no response by the time of the events. 28. The Arzamas Town Court found that the applicant had been residing in Russia in breach of the immigration laws. The court established that at 0.05 a.m. on 13 March 2013 at the address of the Arzamas police station “the applicant had failed to leave the Russian Federation after the expiry of the registration term, that is, 12 July 2011”. The court established that there were no circumstances precluding his administrative removal from Russia. The court dismissed the applicant’s argument as regards the refugeestatus proceedings, observing that “according to the letter of 23 January 2013 by the Russian Federal Migration Service (“the Russian FMS”), his relevant application had been rejected” (see, for the contents of the letter, paragraph 38 below). It also noted, without giving further details, that the defence’s submissions as regards the risk of torture in Uzbekistan “could not be accepted as wellfounded”. In accordance with Article 18 § 8 of the CAO the court found the applicant liable to pay a fine in the amount of 3,000 Russian roubles (RUB) and ordered his administrative removal from Russia. Citing the provisions of the CAO on controlled forced removal (see paragraphs 50-51 below), the court decided that the applicant should be detained in a special detention centre at the Nizhniy Novgorod Regional Department of the Interior («специальный приемник ГУВД по Нижегородской области») until his administrative removal. No specific timelimit for the applicant’s detention was given by the court. 29. On 22 March 2013 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant’s administrative removal and extradition should be suspended until further notice. 30. On 19 March 2013 the defence appealed against the decision of 13 March 2013. In addition to their initial arguments, they submitted that the first-instance court had incorrectly established the facts of the case, including in respect of the applicant’s arrest. Contrary to the case materials, they submitted, on 12 March 2013 the applicant had only been let out into the yard of the police station and, in any event, he had not been provided with any documents confirming his release from custody. Therefore, at 0.05 a.m. on 13 March 2013 he had not been at liberty and thus had been unable to deliberately “avoid leaving Russia”. They further maintained that the applicant’s expulsion would amount to his “extradition in disguise”. The extradition proceedings in respect of him had been pending at the material time. The applicant, if removed to Uzbekistan, would be unable either to challenge any decision taken within the extradition proceedings, or to benefit from the minimum guarantees in such proceedings. 31. They also stated that, contrary to the court’s findings, no final decision in the refugee-status proceedings had been taken on 25 January 2013, as clearly confirmed by the letter of the Russian FMS. Where an application for refugee status was made, domestic law prohibited the expulsion of an applicant in the absence of a final decision on his refugee status. They stressed that the first-instance court had failed to make any assessment of their ill-treatment argument, and reiterated their submissions as regards the risk of ill-treatment if the removal order were to be enforced. Finally, they submitted that the decision ordering the applicant’s detention did not contain any time-limit and was therefore in breach of Article 5 of the Convention. 32. On 26 March 2013 the Nizhniy Novgorod Regional Court upheld the administrative removal order, finding that the first-instance court had correctly established the facts of the case, assessed the admissibility of various items of evidence and applied the domestic law. The appeal court upheld the administrative sanction as lawful and found no grounds to amend it. As regards the applicant’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner, the court noted that the administrative-offence record had been drawn up in accordance with the domestic procedure. The court found nothing in the applicant’s submissions to suggest that his family members had been persecuted in Uzbekistan. Finally, it noted the applicant had not been granted refugee status in Russia. The administrative removal order became final. 33. After 12 March 2013 the applicant was detained in the special detention facility in Arzamas. At some point before 25 November 2013 he was transferred to the special detention facility in Balakhna, in the Nizhniy Novgorod Region. He remains detained there to date. 34. On 14 September 2012, when interviewed by the Arzamas town prosecutor after his arrest, the applicant stated that he had moved to Russia to look for work. Since April 2011, the date of his arrival in Russia, he had not registered as a foreign national temporarily residing in the country. He stated that he had not been persecuted on political grounds in Uzbekistan, and had not applied for refugee status in Russia. He had learned that a criminal case was pending against him in his home country from his parents, since at some point local police had searched their home. However, he had been unaware of the nature of the charges and the basis on which the criminal case had been brought against him until his arrest in Russia. He made similar submissions when interviewed by the Vasdkiy district prosecutor of the Nizhniy Novgorod Region on 27 September 2012. 35. On 2 October 2012 the applicant lodged an application for refugee status with the Nizhniy Novgorod FMS on the ground of fear of persecution on account of fabricated charges relating to a religious offence. He stated that he did not have any religious beliefs. However, he had learned after his arrest that he had been charged with a religious offence. He submitted that the accusations against him were unfounded. He feared that in Uzbekistan he would be tortured, forced to incriminate himself and sentenced to imprisonment for religiously motivated anti-State offences he had not committed. 36. On 7 December 2012 the Nizhniy Novgorod FMS rejected the application. They referred to the applicant’s own submissions, as well as the results of checks conducted by the local Department of the Interior and FMS. It also noted that the Nizhniy Novgorod Regional Department of the Federal Security Service had recommended that the applicant should not be granted refugee status. The decision also contained a reference to an unspecified undated report on the State system and the social and economic situation in Uzbekistan. It was stated in the report, inter alia, the Uzbek authorities exercised close control over the religious life of the population, that Uzbekistan had ratified several UN human rights treaties and that the use of any unlawful investigative methods was prohibited in the requesting country. The Nizhniy Novgorod FMS observed, with reference to the applicant’s own submissions, that he had applied for refugee status after learning, at the time of his arrest, that he had been placed on the wanted list. Thus, there were grounds to consider the applicant’s request as an attempt to avoid extradition. The Department further found that the applicant had not had any problems with the authorities in his home country prior to his departure to Russia. Overall, the Nizhniy Novgorod FMS concluded that the applicant had not produced any “objective evidence to the effect that he would be persecuted on national, religious or political grounds” and that he had left Uzbekistan in order to look for employment, that is, for a reason falling outside the scope of an admissible refugee request. 37. On 25 December 2012 the applicant lodged an appeal against the refusal with the Russian FMS office, referring to the risk of illtreatment and imprisonment in his home country. He cited reports by various NGOs for 2011-2012 pointing to serious human rights problems in Uzbekistan and stated that the Nizhniy Novgorod FMS had omitted to take into account the political and religious nature of the charges against him and to analyse the specific circumstances of his case. 38. The Russian FMS received the applicant’s appeal on 15 January 2013 and by a letter of 23 January 2013 advised him that it would be considered upon receipt of documents from the Nizhny Novgorod FMS. 39. On 11 February 2013 the Russian FMS dismissed his appeal. It upheld the decision of the Nizhniy Novgorod FMS, finding that the latter had examined all the relevant individual, social and political aspects of the case and had reached a well-founded conclusion. The Russian FMS found that there was no evidence that the criminal proceedings against the applicant “had a political background”. It noted that neither the applicant nor his wife, child, mother or father, who resided in Uzbekistan, had received any threats or been subjected to any kind of persecution, and reiterated that the applicant had only applied for refugee status after his arrest. It further found that the applicant did not fit the definition of a refugee, since a fear of criminal prosecution did not constitute a ground for granting refugee status. 40. By a letter of 12 February 2013 the Russian FMS sent its decision to the applicant by post at the address of the remand centre in Arzamas. Having received the decision on 15 March 2013, he challenged it on 2 April 2013 before the Basmannyy District Court of Moscow. He argued, in particular, that the Russian FMS had failed to address his arguments or to assess the circumstances of his case. He reiterated, in addition to his initial submissions, that the thrust of his grievance was not simply the fact of the criminal prosecution, but the fear of being subjected to torture in detention in Uzbekistan with a view to a confession being extracted in respect of offences he had not committed. 41. On 18 June 2013 the Basmnnyy District Court dismissed the appeal and endorsed the Russian FMS’s decision as lawful, noting the applicant’s failure to adduce “convincing arguments to support his allegations of fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group”. The court noted from the questionnaire completed by the applicant on the date of the submission of his application that he had not been a member of any political, religious or military organisations in his home country and had not had any problems with the authorities prior to his departure for Russia. Nothing in the statement of charges drawn up by the Uzbek authorities revealed any political motivation. The court reiterated that the applicant’s family members were living in Uzbekistan and were not subject to any kind of persecution. The actual purpose of his application was to avoid criminal prosecution in Uzbekistan. Further, the applicant had not complained of a risk of persecution in Uzbekistan and had not expressed his wish to remain in Russia as a refugee until after his arrest. Moreover, there existed no medical reasons precluding his departure from Russia. The court concluded that the applicant did not meet the “refugee” definition. 42. The court also refused the defence’s request to have Ms Ryabinina questioned as an expert on the human rights situation in Uzbekistan. 43. The applicant appealed, reiterating his earlier arguments and submitting that the first-instance court had failed to assess the risk on the basis of all the available information, as well as to address his counterarguments to the Russian FMS’s decision. He maintained that the charges against him were politically motivated and emphasised the risk of illtreatment, with extensive references to reports by Human Rights Watch and Amnesty International, as well as to the Court’s case-law. As regards the court’s finding that none of his family members had been persecuted, he noted that on 12 March 2013 his brother had also been arrested in Arzamas, but had then been released because his extradition had been refused by the Russian authorities. 44. On 24 October 2013 the Moscow City Court upheld the judgment of 18 June 2013. The applicant in his observations of 25 November 2013 provided a copy of the information note on the case progress from the city court’s website containing the case references and indicating that the appeal had been rejected and the judgment had been upheld. The parties did not submit a copy of the decision. 45. In their letter of 4 April 2013 the Government submitted that at some point the applicant had applied for temporary asylum in Russia, and on 23 January 2013 the Nizhniy Novgorod FMS had refused his application, the refusal being upheld on 18 February 2013 by the Sormovskiy District Court of Nizhniy Novgorod. 46. The applicant stated that he had not applied for temporary asylum and enclosed a letter from the Nizhniy Novgorod FMS of 29 May 2013 confirming that the authority had not received any such application from him.