CASE OF NIZAMOV AND OTHERS v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
6. The first applicant, Mr Avazbek Mukhammad Ugli Nizamov, was born in 1992. The second applicant, Mr Khakim Tursunovich Dzhalalbayev, was born in 1983. The third applicant, Mr Rakhmatullo Abudullayevich Mukhamedkhodzhayev, was born in 1989. The fourth applicant, Mr Olim Tursunovich Dzhalalbayev, was born in 1979. The applicants are currently detained in Moscow. 7. In 2011-12 the applicants moved from Uzbekistan to Russia to seek employment. 8. On 15 October 2012 an investigator with the Uzbek Ministry of the Interior indicted the applicants on the charges of participation in an extremist religious group known as the Islamic Movement of Turkestan and attempting to overthrow the State’s constitutional order in Uzbekistan and ordered their arrest. Their names were put on the list of wanted persons. 9. On 15 November 2012 the applicants were arrested at Vnukovo airport in Moscow. 10. On 17 November 2012 the Solntsevskiy District Court of Moscow authorised the applicants’ detention pending extradition. On 13 December 2012 the District Court further extended their detention until 15 June 2013. 11. Between 26 March and 1 April 2013 the General Prosecutor of the Russian Federation refused the Uzbek authorities’ request for the applicants’ extradition citing, as a ground for his decision, Article 464 § 1 (6) of the Russian Code of Criminal Procedure which banned extradition in respect of persons charged with an offence not punishable under the Russian criminal law. The parties did not submit copies of the relevant decisions. 12. Between 27 March and 4 April 2013 the Acting Moscow Prosecutor for Supervision of Legal Compliance for Air and Water Transport ordered the applicants’ release. 13. The applicants were immediately re-arrested as illegal aliens. The Babushkinskiy District Court of Moscow examined the applicants’ cases, imposed an administrative fine of 2,000 Russian roubles on each of them and ordered their expulsion to Uzbekistan. The court noted that the applicants had failed to leave Russia upon the expiration of the permissible three-month period of residence without a permit. It further noted that the applicants’ request for asylum had been refused and that they had not applied for “legalisation” of their stay in Russia. 14. The District Court delivered the relevant decisions on 28 March, 3, 5 and 9 April 2013 respectively. 15. The applicants appealed. They argued, inter alia, that their removal to Uzbekistan would be contrary to Article 3 of the Convention and that they would run a risk of being subjected to torture and inhuman and degrading treatment if forcefully returned to Uzbekistan to be tried for the offences they were charged with. 16. Between 4 and 16 April 2013 the Court indicated to the Government, under Rule 39 of the Rules of the Court, that the applicants’ removal/expulsion to Uzbekistan should be suspended until further notice. 17. On 14 May 2013 the Moscow City Court dismissed the applicants’ appeals and upheld the expulsion orders. The court found the applicants liable for their failure, as foreign nationals, to leave Russia upon the expiry of the maximum permissible period of temporary residence in the country. It further noted that the applicants were refused refugee status even though it considered their asylum application to be irrelevant for the purpose of the proceedings. Lastly, referring to the interim measure indicated by the Court to the Government, the City Court suspended the execution of the expulsion orders until further notice. 18. It appears that the applicants are held in custody to date. 19. On 28 December 2012 the first applicant lodged an application seeking asylum in Russia claiming that, if returned to Uzbekistan, he would be subjected to unlawful criminal prosecution on fabricated charges. In the follow-up interview with the migration authorities, the first applicant explained that (1) he had come to Russia to seek employment; (2) he had not been persecuted prior to leaving Uzbekistan; (3) he had not received any direct threats in Uzbekistan; (4) he had not been affiliated with any party or non-governmental organization; and (5) he had been unaware of the criminal proceedings instituted against him in Uzbekistan until his arrest on 15 November 2012. 20. On unspecified dates the second, third and fourth applicants lodged similar applications. 21. On 21 February 2013 the Moscow Federal Migration Service refused to grant refugee status to the second applicant. The parties did not submit a copy of the relevant decision. Nor did they inform the Court whether the second applicant appealed against the decision of 21 February 2013. 22. On 25 February 2013 the Moscow Federal Migration Service dismissed the first applicant’s application. The relevant decision stated as follows: “[The first applicant] did not apply for asylum within one day of his arrival in Russia ... . According to the information submitted by the Federal Migration Service of Russia, ‘the internal political situation in Uzbekistan is characterised by relative stability. The authorities control it through law-enforcement bodies and traditional institutions of local self-government. Uzbek foreign policy is sufficiently active. The Republic is recognised by 150 States. It has established diplomatic relations with 88 of them. It has more than 40 embassies and consulates abroad. One of the priorities of Uzbek foreign policy is international cooperation for the purposes of preserving stability and peace at the regional and global levels. Uzbekistan is a member of major international organisations. It has ratified all international human rights conventions, the provisions of which have been incorporated into the national legislation. ... As of 1 January 2008, the President’s Decree on the abolition of the death penalty has been in force in Uzbekistan. ... Currently the most severe sentence in Uzbekistan is life imprisonment. ... Uzbekistan has ratified all six major UN human rights treaties. It regularly submits periodic compliance reports to UN bodies. As a whole, the country’s parliament has ratified more than 60 international human rights treaties. ...’ According to the materials in the case-file, ... [the first applicant] does not wish to return to [Uzbekistan] for fear of being prosecuted on the charges brought against him in the Republic of Uzbekistan. It should be noted that the offences he is charged with are punishable under the Russian criminal law and the prescription period for criminal liability for such offences has not expired under the Russian criminal law. Having instituted criminal proceedings against [the first applicant], the law enforcement authorities of the Republic of Uzbekistan do not intend to prosecute him on account of his belonging to a particular social group, his nationality, religion or political opinion. Upon arrival in Russia in July 2011, [the first applicant] did not seek refugee status in the Russian Federation. He lodged such an application only after his arrest and placement in [custody]. Regard being had to the above, it follows that [the first applicant] is not running a risk of being subjected to persecution in the Republic of Uzbekistan [on account of race, religion, nationality, belonging to a social group or political opinion] and does not qualify to be recognised as a refugee ... . The reasons, as stated by [the first applicant], for his refusal to return to the Republic of Uzbekistan do not justify his fear of being subjected to persecution on account of faith, nationality, ethnicity, belonging to a social group or political opinion.” 23. On 26 April 2013 the Federal Migration Service of the Russian Federation upheld the decision of 26 April 2013. It appears that the first applicant did not challenge the said decisions in court. 24. On 29 March and 9 April 2013 the Moscow Federal Migration Service dismissed the fourth and third applicants’ applications for asylum. It reiterated verbatim the reasoning of the decision of 25 February 2013. It appears that no appeal was lodged against the said decisions.