CASE OF AKRAM KARIMOV v. RUSSIA
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
6. The applicant was born in 1967 and lives in Moscow. 7. The applicant has a wife and three children who live in Uzbekistan. He is a practising Muslim. Since 1996 he had regularly gone to Russia for seasonal jobs. In 2010 the applicant again went to Russia and remained in the Moscow region until his arrest on 17 March 2012. 8. On 14 June 2011 the investigator at the Bukhara Regional Department of National Security, Uzbekistan, charged the applicant, in absentia, with incitement to national, racial, ethnic or religious hatred, and producing and disseminating documents containing threats to national security and public order (Articles 156 § 3 (d) and 244-1 § 3 (a) of the Uzbek Criminal Code). The decision stated, in particular, that Mr A., an Uzbek national, had formed an organised criminal group in 1996-1997 which a view to disseminating ideas based on Muslim religious extremism. According to the decision, the applicant had been involved in the group while working as the head of a bakery and being responsible for providing other members of the group with work and housing. 9. On the same date the applicant was placed on the list of wanted persons. 10. On 15 June 2011 the Bukhara Criminal Court ordered the applicant’s placement in detention. On the same date the Deputy Prosecutor of the Bukhara Region issued an international search warrant in respect of the applicant. 11. On 17 March 2012 the applicant was arrested by police in Moscow. The record of arrest, drawn up on the same date and signed by the applicant, stated that he had been arrested in accordance with Articles 91 and 92 of the Code of Criminal Procedure as a person wanted by the Uzbek authorities on suspicion of criminal offences under Articles 156 § 3 (d) and 244 § 3 (a) of the Uzbek Criminal Code. 12. On 18 March 2012 the applicant was questioned and stated as follows. In Uzbekistan he had worked as a builder. As it had become difficult to find a job there, in July 1996 he went to Russia for the first time to look for a job. For three months he lived in the Moscow Region unofficially, and he then returned to Uzbekistan. Between 1996 and 2010 he went to Russia every year for several months, during which he worked unofficially on construction sites in the Moscow Region. He never applied for authorisation in respect of his temporary stays in Russia. In October 2010 he went again to Russia. He went to the village of Poyarkovo, in the Moscow Region, where he found lodgings in a mobile home with three other builders. In October-November 2010 he worked at a construction site in the town of Himki. During 2011 he had occasional jobs in Poyarkovo, including some building work for its residents, and cleaning the streets. On 17 March 2012 the applicant went to the Kazanskiy railway station in Moscow as he wanted to return to Uzbekistan. He bought a ticket to Kazan, where he planned to buy tickets for the remainder of the journey. However, before he could board the train he was approached by three men in civilian clothes who told him they were police officers and presented their badges. They informed him that he was on a wanted list in Uzbekistan and asked him to go with them to the police station located near the railway station, which he did. According to the applicant, when he spoke on the telephone with his wife in spring 2011, she had said that police officers had asked her about his whereabouts, but they had not explained why they were looking for him. In Uzbekistan he had not been persecuted for political reasons or convicted of any criminal offences, and he did not apply for asylum in Russia. The applicant stated that he did not know in relation to what imputed offence he had been placed on the wanted list. 13. On 19 March 2012 the Russian Ministry of the Interior received from the Uzbek Ministry of the Interior a request for the applicant to be detained pending receipt of its extradition request. 14. Also on 19 March 2012, the prosecutor of the Meshchanskiy District of Moscow ordered the applicant’s detention on the ground of Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). In that decision the prosecutor referred to the following elements: the applicant had been arrested in Russia on suspicion of a number of criminal offences on the basis of an international search warrant issued by the Uzbek authorities; the Bukhara Criminal Court had issued an arrest warrant in respect of him; the offences imputed to the applicant were punishable in Russia by more than one year of imprisonment; and the applicant had gone into hiding. The decision did not specify a term for the applicant’s detention. The applicant was immediately placed in SIZO no. 4 in Moscow. He was not provided with a copy of the prosecutor’s decision. 15. On 23 March 2012 the Moscow Region Federal Migration Service (“FMS”) informed the prosecutor of Moscow that the applicant had not applied for asylum in Russia. 16. On 27 March 2012 the Moscow FMS informed the prosecutor of the Meshchanskiy District of Moscow that the applicant had applied neither for Russian citizenship nor asylum. He had had residence registration in Khimki between 20 June 2008 and 13 April 2009, but he had not been registered in the Moscow Region since then. 17. On 29 March 2012 the Moscow Region FMS informed the prosecutor of Moscow that the applicant was not a Russian citizen and nor had he applied for asylum, and that he had had residence registration in Khimki between 20 June 2008 and 13 April 2009, but had not been registered in the Moscow Region since then. 18. On 12 April 2012 the applicant’s counsel appealed against the detention order of 19 March 2012. She argued, in particular, that it was unlawful as the detention had been ordered by a prosecutor and not by a court, and that Article 466 § 2 of the Code of Criminal Proceedings was inapplicable to the applicant at that stage of the proceedings. 19. On 19 April 2012 the FMS informed the Prosecutor General that the applicant had had residence registration in Khimki between 20 June 2008 and 13 April 2009. He had neither acquired Russian citizenship nor applied for asylum. 20. On 24 April 2012 the General Prosecutor’s Office of the Russian Federation received a request for the applicant’s extradition from the Deputy Prosecutor General of Uzbekistan. The request contained assurances that the applicant would not be persecuted on grounds of his political convictions, ethnic origin, religion or nationality; that he would be provided with legal assistance; and that the criminal proceedings against him would be conducted in full compliance with the laws of Uzbekistan. Furthermore, the applicant would not be extradited to a third State or be subject to criminal proceedings unrelated to the offences in respect of which his extradition was sought. 21. Also on 25 April 2012, the prosecutor of the Meshchanskiy District of Moscow ordered the applicant’s detention during the extradition proceedings. He referred to the extradition request received from the Uzbek authorities and relied on Article 466 § 2 of Code of Criminal Procedure. The decision did not specify a term for the applicant’s detention. 22. On 26 April 2012 the applicant’s counsel submitted an additional statement of appeal against the detention order of 19 March 2012. She complained, in particular, that Uzbekistan had not ratified the Protocol of 28 March 1997 to the Minsk Convention and, therefore, in relations between Russia and Uzbekistan the old version of the Minsk Convention should be applied, without the amendments made by the Protocol. Therefore, the applicant should have been released on 17 April 2012, a month after his arrest, as provided by Article 62 § 1 of the Minsk Convention. 23. On the same date, the Preobrazhenskiy District Court of Moscow postponed the hearing on the appeal lodged by the applicant’s counsel to 3 May 2012 in order to allow time for the applicant to receive a copy of the prosecutor’s decision of 19 March 2012. 24. On 27 April 2012 the applicant received a copy of the said decision. 25. On 3 May 2012 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s counsel’s appeal against the detention order of 19 March 2012. The court found that the applicant had been arrested in accordance with Articles 91 and 92 of the Code of Criminal Procedure and that on 19 March 2012 he had been detained pending receipt of the extradition request on the basis of Article 466 § 2 of the Code of Criminal Procedure. 26. On 12 May 2012 the applicant’s lawyer appealed against the decision of 3 May 2012 to the Moscow City Court. She maintained, inter alia, that the Preobrazhenskiy District Court of Moscow had failed to address the arguments she had raised in the appeal statement. 27. On 15 May 2012 the Meshchanskiy District Court of Moscow extended the applicant’s detention until 17 September 2012, referring to Articles 109 and 466 of the Code of Criminal Procedure, Articles 56, 58 and 60 of the Minsk Convention, and the 1957 European Convention on Extradition. The court found the prosecutor’s request for the extension of the applicant’s detention well-founded as his extradition had been requested in relation to charges concerning offences punishable under both Russian and Uzbek law; the applicant was a national of Uzbekistan with no permanent place of residence in Russia; and he had tried to abscond from the Uzbek authorities. The court also noted that the extradition check in respect of the applicant had not been completed. 28. On 16 May 2012 the applicant’s counsel appealed against that decision. 29. On 30 May 2012 the Moscow City Court upheld the decision of 15 May 2012. 30. On 23 July 2012 the Moscow City Court upheld the decision of 3 May 2012. It also found that the Preobrazhenskiy District Court of Moscow duly addressed the arguments raised by the applicant’s counsel on appeal. 31. On 17 September 2012 the prosecutor of the Meshchanskiy District of Moscow, referring to Articles 61 and 62 of the Minsk Convention, ordered the applicant’s release because the six-month maximum period of detention permitted by domestic law had expired. 32. Also on 17 September 2012, the General Prosecutor’s office refused to extradite the applicant to Uzbekistan, finding that the offences punishable under Article 244-1 of the Criminal Code of Uzbekistan were not regarded as criminal offences under Russian criminal law. In so far as he was charged with offences punishable under Article 156 § 3 (d) of the Criminal Code of Uzbekistan, there was no corpus delicti in the applicant’s actions for the purposes of Article 282 of the Russian Criminal Code (incitement to hatred and hostility, and degrading treatment). 33. On 17 September 2012 police officers escorted the applicant from the SIZO to the Krasnoselskiy District police station, where the prosecutor’s release order of 17 September 2012 was handed to him. However, the applicant was immediately re-arrested on suspicion of a breach of the residence rules under Article 18.8 of the Code of Administrative Offences, and administrative removal proceedings were initiated in respect of him. 34. In the records of the administrative offence and the administrative arrest, signed by the applicant, both dated 17 September 2012, he stated that he did not agree with the arrest. 35. By a telegram of 18 September 2012 the Prosecutor of the Russian Federation informed the prosecutor of Moscow that on 17 September 2012 the Uzbek authorities’ request for the extradition of the applicant had been refused. The telegram further stated that it was necessary to take a decision regarding the applicant’s further detention and to verify the legality of his presence on the territory of the Russian Federation. 36. On 18 September 2012 the Meshchanskiy District Court of Moscow refused to accept the case for examination because the case file contained no information about the outcome of either the extradition proceedings or the refugee-status proceedings 37. On 19 September 2012 the case file on the applicant’s administrative offence was submitted to the Meshchanskiy District Court of Moscow. 38. In written pleadings filed with the Meshchanskiy District Court of Moscow the applicant’s counsel argued that the applicant’s removal to Uzbekistan would be unlawful. She stated, in particular, that the applicant, as a person accused of participation in a banned religious activity, faced torture and other forms of ill-treatment if expelled to Uzbekistan. The applicant’s counsel also referred to the Court’s case-law concerning expulsion to Uzbekistan and recent reports by international NGOs, according to which detainees charged with banned religious activities were subjected to systematic torture and other forms of ill-treatment in Uzbekistan. She further stated that the applicant had applied for refugee status in Russia and the proceedings were still pending; in accordance with the Refugee Act of 1993 and the 1951 Geneva Convention on the Status of Refugees, the applicant could not be removed from Russia until the end of those proceedings. 39. On 19 September 2012 the Meshchanskiy District Court of Moscow found the applicant guilty of a breach of the residence rules, imposed a fine in the amount of 2,000 roubles (RUB) (approximately 50 euros) and ordered his administrative removal from the Russian Federation. It found, in particular, that the applicant had arrived in Russia on 20 October 2010 with a view to finding a job. However, he had made no attempt to regularise his stay in Russia by applying either for a temporary residence permit or for a work permit. Furthermore, he had not left Russia upon the expiry of the maximum ninety-day period for which foreign nationals who did not require a visa were authorised to stay in Russia. The applicant admitted at the hearing that he had been residing in Russia unlawfully, but stated that for a long period of time he had been unable to regularise his situation because his employer had had possession of his documents. However, he had received his passport at the end of 2011 and had still not taken any steps to regularise his residence. The court further stated that when imposing the penalty it had taken into account the applicant’s situation, including his lack of a stable income and residence in Russia, the length of his stay in Russia without a permit, and the fact that he had been aware that a permit was required. 40. The court found that the applicant’s allegations regarding a risk of ill-treatment in the event of his removal to Uzbekistan were “based on assumptions” and were “not corroborated by the case-file materials”. It also dismissed the applicant’s counsel’s argument that the applicant could not be subject to administrative removal because he had a pending application for refugee status. The court stated in this connection that on 28 August 2012 the Moscow FMS had dismissed his application and, as of the date of the hearing, the applicant had not appealed against that decision. The court further held that, taking into account the applicant’s financial situation and also the need to ensure his removal from the territory of the Russian Federation, the applicant was to be placed in custody until the “resolution of the matter relating to his administrative removal”. Following that decision the applicant was placed in a detention centre for foreigners in Moscow. 41. On 28 September 2012 the applicant’s counsel appealed against the decision of 19 September 2012 to the Moscow City Court. She reiterated the arguments she had advanced before the first-instance court and complained that the first-instance court had not made an adequate assessment of the risk of ill-treatment to which the applicant might be subjected if he was removed to Uzbekistan. She pointed out that the Meshchanskiy District Court of Moscow had refused to examine the reports by international NGOs relating to the human rights situation in Uzbekistan and had ignored the Court’s position on the matter. 42. On 2 October 2012 the applicant requested the Court to apply Rule 39 of the Rules of Court. 43. On 4 October 2012 the Court granted the applicant’s request for the application of interim measures under Rule 39 of the Rules of Court and indicated to the Government that the applicant should not be expelled to Uzbekistan for the duration of the proceedings before the Court. 44. On 8 October 2012 the Prosecutor General instructed the prosecutor of Moscow to comply with the Court’s indications regarding interim measures under Rule 39 of the Rules of Court. 45. On 9 October 2012 the prosecutor of Moscow instructed the prosecutor of the Meshchanskiy District of Moscow to apply to the Meshchanskiy District Court of Moscow for the suspension of the applicant’s removal to Uzbekistan in view of the application by the Court of Rule 39 of the Rules of Court. 46. On 10 October 2012 the prosecutor of the Meshchanskiy District of Moscow requested the Meshchanskiy District Court of Moscow to suspend the applicant’s removal to Uzbekistan following the application by the Court of Rule 39 of the Rules of Court. 47. On the same date, the Moscow FMS informed the Moscow City Court that the applicant was not registered in the migration register and nor had he been issued with a work permit. 48. Also on 10 October 2012, the Moscow City Court upheld the decision of 19 September 2012, finding it lawful and justified. It held that the first-instance court had been right in finding that the applicant’s actions had constituted an administrative offence. The appeal court further dismissed the argument that the applicant could not be subject to administrative detention in view of his application for asylum as (i) he had applied for asylum only after being arrested; and (ii) the reasons he had put forward for his reluctance to return to Uzbekistan did not constitute well-founded fears of persecution on grounds of his religion, nationality, ethnic origin, belonging to a particular social group, or political convictions. 49. On 25 October 2012 the Meshchanskiy District Court of Moscow ordered the suspension of the execution of the decision of 19 September 2012 pending the examination of the application by the prosecutor of the Meshchanskiy District of Moscow. 50. On 13 December 2012 the Moscow City Court returned the application by the prosecutor of the Meshchanskiy District of Moscow without examination on the ground that under Article 30.12 of the Code on Administrative Offences the prosecutor was not authorised to apply for the suspension of a final judicial decision. 51. On 15 December 2012 the applicant’s counsel sent an application to the Meshchanskiy District Court of Moscow pursuant to Article 31.8 of the Code of Administrative offences. She sought clarification regarding the execution of the decision of 19 September 2012 in the light of the application by the Court of Rule 39 of the Rules of Court. The Meshchanskiy District Court of Moscow received the application on 28 December 2012. In the absence of a response, the applicant’s counsel resubmitted the application on 19 March 2013. 52. On 8 April 2013 the Meshchanskiy District Court of Moscow wrote to the applicant’s counsel informing him that the court found that there were no grounds to consider her application under Article 31.8 of Code on Administrative Offences. Therefore, it was to be examined as a general application. The court advised the applicant’s counsel to contact the competent executive authorities with her queries concerning the execution of the decision of 19 September 2012. The letter was sent on 18 April 2013. 53. On 20 April 2012 the applicant applied for refugee status in Russia. 54. On 28 August 2012 the Moscow FMS refused to grant him refugee status. The FMS noted that although the applicant had substantiated his application by an alleged risk of persecution on religious grounds, he stated that he had left Uzbekistan for economic reasons. However, he feared that if he returned there the Uzbek law-enforcement agencies would extract from him under torture a confession to crimes he had not committed. It further analysed at length the applicable Uzbek laws on the prohibition of torture and freedom of religion, as well as information on the co-existence of various religions in Uzbekistan. The FMS noted that the applicant had not left Uzbekistan on any of the grounds listed in section 1 § 1 (1) of the Refugees Act. Moreover, it appeared that his wish to not return to Uzbekistan was based not on a fear of being persecuted on grounds of religion, nationality, ethnic origin, belonging to a particular social group, or political convictions, but rather on his fear of being subjected to punishment for the offences he was charged with in Uzbekistan. Therefore, he did not meet the criteria set out in section 1 § 1 (1) of the Refugees Act. 55. On 26 September 2012 the applicant appealed against that decision to the FMS. 56. On 10 November 2012 the FMS dismissed the applicant’s appeal against the decision of 28 August 2012. It endorsed the reasoning of that decision and added that although, according to the applicant, since 2002 he had regularly come to Russia for seasonal jobs, he had only had a work permit for the period between 30 May 2008 and 28 September 2010. 57. On 17 January 2013 the applicant appealed against that decision to the Basmanniy District Court of Moscow. He argued that as criminal proceedings had been instituted against him in Uzbekistan, his fears of persecution on religious grounds were well-grounded. 58. On 1 April 2013 the Basmanniy District Court of Moscow dismissed the applicant’s appeal. The court noted that although the human rights situation in Uzbekistan was “ambiguous”, it was a party to numerous international treaties on the protection of human rights and regularly submitted reports to the UN on its compliance with such treaties. The court further stated that a decision concerning refugee status should be taken not on the basis of the general situation in the country, but on the basis of the applicant’s specific circumstances. The FMS had thus been right to dismiss the application as the applicant had failed to provide any evidence that in the event of his return to Uzbekistan there was a real risk of his being subjected to ill-treatment. 59. On 13 May 2013 the applicant appealed against that decision to the Moscow City Court. The appeal hearing was scheduled for 30 July 2013. 60. The Court has not been informed of the outcome of the appeal proceedings.