CASE OF RAKHIMOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicant was born in 1971. Prior to his arrest he was residing in the Moscow Region. 7. On an unspecified date in 1999 the applicant arrived in Russia and settled in Moscow. Between 1 and 18 November 2009 he travelled to Uzbekistan (see paragraphs 43-44 below). It appears from the domestic judgment of 18 September 2013 (see paragraph 39 below) that he was registered with the local migration authorities from 20 November 2009 to 18 February 2010. 8. On 3 March 2010 the National Security Department of the Samarkand Region of Uzbekistan brought criminal proceedings against the applicant on suspicion of his alleged membership between 1990 and 1998 of Hizb utTahrir (“HT”), a transnational Islamic organisation, banned in Russia, Germany and some Central Asian republics, and making public calls to overthrow the constitutional order of Uzbekistan and to establish an Islamic state in its place. 9. On 6 April 2010 the applicant was charged in absentia in Uzbekistan with attempting to overthrow the Uzbek State’s constitutional order (Article 159 § 3 (b) of the Criminal Code of the Republic of Uzbekistan); storage and disseminating of documents containing ideas of religious extremism, separatism and fundamentalism, and threats to national security and public order (Article 244-1 § 3 (a) of the Code); and participation in and direction of religious, extremist, separatist and other prohibited organisations (Article 244-2 § 1 of the Code). The statement of charges indicated that between 1990 and 1998 the applicant, as a member of HT, had regularly held unlawful religious gatherings with three other persons at which they had made “public calls to overthrow the existing constitutional order” in their home country and “made use of materials containing ideas of religious extremism”. The applicant had shown a video-recording of an address by Yu., the leader of the religious extremist “Islamic Movement of Uzbekistan”. Furthermore, since 1990 the applicant had systematically participated in religious studies and physical training sessions of a “shahid belt community”, as well as meetings organised by R. at which public calls for the replacement of the Uzbek Government by an Islamic state in the form of a recreated Caliphate had been made. 10. On the same date the Samarkand Town Court ordered the applicant’s arrest, and his name was put on the cross-border list of wanted persons. 11. On 17 April 2013 the applicant was arrested by the police in Moscow as a person wanted by the Uzbek authorities. On the same date the National Security Department of the Samarkand Region of Uzbekistan confirmed their intention to request the applicant’s extradition and requested that he be remanded in custody. 12. When interviewed by the police on the same date after his arrest, the applicant stated that he had moved to Russia in 1999 to look for work. He had not registered as a foreign national temporarily residing in the country and had not applied for refugee status in Russia. He was unaware of the reasons for his criminal prosecution in Uzbekistan and had not been persecuted on political grounds in his home country. His wife and four minor children lived with him in the Moscow Region. 13. On 13 May 2013 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 being extradited, that he would be able to freely leave Uzbekistan once 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, or 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, that the criminal proceedings against him would be conducted in compliance with the domestic law of the Republic of Uzbekistan, and that he would receive any medical treatment required. 14. On 1 July 2013 the applicant’s representative filed objections against the extradition request. She 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 caselaw on the matter (Yakubov v. Russia, no. 7265/10, 8 November 2011; Rustamov v. Russia, no. 11209/10, 3 July 2012; and Zokhidov v. Russia, no. 67286/10, 5 February 2013), as well as to the reports by UN bodies and NGOs cited in paragraphs 64, 65, 67, 68, 70 and 71 below, she submitted that the applicant, who had been charged with religious and political offences, including membership of HT, would run an increased risk of illtreatment and would be deprived of the minimum fair-trial guarantees if extradited to the requesting country. The applicant’s representative also referred to a report of 2009 by the CIS Department of the Ministry of Foreign Affairs of the Russian Federation in which the department, referring to various international NGO reports, pointed out that criminal proceedings in Uzbekistan depended to a considerable extent on self-incriminating statements. She further referred to a letter of 2011 from the same CIS Department, which stated that any extradition to Uzbekistan would be in breach of Article 3 of the Convention from the point of view of the European Court. 15. According to a letter from the prosecutor’s office of 30 July 2013 (see paragraph 19 below), on 24 July 2013 the Prosecutor General’s Office refused to order the applicant’s extradition, since his criminal prosecution had become time-barred. According to the applicant, neither he nor his representatives had been informed about the refusal at that point. The parties have not submitted a copy of the relevant decision. 16. On 19 April 2013 the Kuntsevskiy District Court of Moscow ordered the applicant’s detention pending extradition until 17 May 2013. The decision was not appealed against. 17. On 16 May 2013 the Kuntsevskiy District Court of Moscow ordered an extension of the applicant’s detention until 17 October 2013 in order to ensure his extradition. 18. On 29 May 2013 the Moscow City Court upheld the decision on appeal. 19. By a letter of 30 July 2013 the head of the extradition department of the Prosecutor General’s Office informed the Kuntsevskiy InterDistrict prosecutor of Moscow that on 24 July 2013 the Prosecutor General’s Office had refused to order the applicant’s extradition to Uzbekistan since his criminal prosecution had become time-barred, and requested that the applicant be immediately released from custody. The letter continued as follows: “At the same time, [I] ask you to check the lawfulness of Mr Rakhimov’s residence in Russia and his compliance with the immigration laws. [I] ask you to send a copy of the release order, as well as information about the results of the check, to the extradition department of the city prosecutor’s office no later than 31 July 2013 by fax and mail.” 20. A hand-written note on the letter, apparently made by the addressee, indicated that it would be necessary “to conduct a migration check under Article 18 § 8 [of the Code of Administrative Offences] if there are grounds [for it]”. 21. By a decision of 30 July 2013 the Kuntsevskiy InterDistrict prosecutor’s office ordered the applicant’s release from detention, because on 24 July 2013 the extradition proceedings had been discontinued. At 6.45 p.m. on that date the applicant was released from a remand centre in Moscow. 22. According to the applicant, at 6.45 p.m. on 30 July 2013 he was apprehended by the police at the exit of the remand centre, immediately after his release from detention, and taken into custody. 23. According to the administrative offence record (see paragraph 25 below), the applicant was arrested at 8.10 p.m. by an officer of the Department of the Interior of the Mozhaiskiy District of Moscow in connection with a violation of the immigration laws (Article 18-8 of the Code of Administrative Offences (“the CAO”)). 24. At 8.10 p.m. on 30 July 2013 an officer of the Mozhaiskiy District Department of the Interior recorded that the applicant had been arrested “for the purpose of drawing up an administrative record”. In the part of the record reserved for comments the applicant wrote that he objected to the arrest and that he could not be removed to Uzbekistan since he ran a risk of torture there. Furthermore, proceedings were pending in respect of his refugee status. 25. At some point on the same date an administrative-offence record was drawn up on account of the applicant’s failure to leave Russia after 12 July 2011. The applicant, in a hand-written comment made in the relevant part of the record, conceded that he had breached the migration laws but claimed that he could not be removed to Uzbekistan because he would be tortured in his home country. 26. On the same date the case file was forwarded to the Kuntsevskiy District Court of Moscow. By a separate petition the head of the Mozhaiskiy District Department of the Interior requested the court to order the applicant’s detention pending administrative removal, since he had been residing in Russia unlawfully and in breach of the immigration laws and had been avoiding leaving Russia; accordingly there were grounds to believe that he would continue to breach the immigration laws. 27. On 31 July 2013 the Kuntsevskiy District Court of Moscow examined the applicant’s case. 28. During the hearing the defence acknowledged that the applicant had failed to register with the migration authorities or leave Russia, contrary to the requirements of the immigration laws. However, they submitted that, in accordance with Article 28.1 of the CAO, administrative proceedings should have been brought against him as soon as sufficient data indicating the occurrence of an administrative offence had been obtained. When the applicant had been arrested on 17 April 2013, the authorities had already been in possession of sufficient information on the applicant’s immigration status. However, administrative proceedings had not been brought against him until three months and two weeks later, once the term of his detention pending extradition had expired. In those circumstances, the defence considered that the administrative removal of the applicant, if ordered, would amount to a form of extradition in disguise. 29. The defence further submitted that in any event the applicant’s expulsion could not be ordered, since proceedings were pending in respect of his refugee status. They pointed out in this connection that the applicant’s request for refugee status had been accepted for examination (see paragraph 40 below), and that he had received no response by the time of the events. 30. Lastly, the defence made a detailed argument to the effect that the applicant was wanted by the Uzbek authorities in connection with charges relating to religious offences, and would therefore run a risk of illtreatment if expelled to Uzbekistan. They referred to reports by the UN and international nongovernmental organisations (cited in paragraphs 64, 6768 and 72-73 below), as well as the Court’s case-law in support of that position. 31. The Kuntsevskiy District Court found the applicant guilty of the administrative offence of breaching the immigration regulations (Article 18 § 8 of the CAO). The court considered that the administrative-offence record had been compiled by a competent officer and in accordance with the domestic law. It rejected as irrelevant the applicant’s arguments to the effect that the authorities had been aware of the impugned breach of the immigration laws as early as 17 April 2013, arguing that on that date the applicant had been arrested on different grounds. The court took note of the applicant’s submissions concerning his request for refugee status and dismissed them as having no bearing on the administrative offence under examination. The lack of information on the progress of the proceedings in respect of refugee status did not preclude the court from applying an administrative sanction under Article 18 § 8 of the CAO. 32. When deciding on the sanction to be applied, the court took note of “the information on the applicant’s personality”, as well as of the fact that he had admitted breaching the immigration laws. On the other hand, it observed that the applicant had been unlawfully residing in Russia for a considerable period of time and that he did not have a permanent residence or job in Russia. In accordance with Article 18 § 8 of the CAO the court fined the applicant 2,000 Russian roubles (RUB) and ordered his administrative removal from Russia. 33. Lastly, the court granted the request of the head of the Mozhaiskiy District Department of the Interior for the applicant’s placement in detention pending removal. It reiterated that the applicant had been residing in Russia in breach of the law and had avoided – and was likely to further avoid – leaving Russia of his own will. The court decided that the applicant should be detained in a special detention centre for foreigners of the Moscow Department of the Interior until his administrative removal. No specific timelimit for the applicant’s detention was given by the court. 34. On 5 and 26 August 2013 the defence submitted their points of appeal before the Moscow City Court. In addition to their initial arguments, they submitted, first, 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, on 30 July 2013 the applicant had only just been let out of the remand centre when he was immediately arrested at the exit of the detention facility. They argued that the administrative-offence record had been forged and therefore was inadmissible. Secondly, they maintained that the applicant’s expulsion would amount to his “extradition in disguise”. They pointed out, with reference to the letter of 30 July 2013 (see paragraph 19 above) that the very initiative to conduct an urgent check of the applicant’s migration status had been taken by the prosecutor’s office, that is the authority in charge of his extradition case. The interest the prosecutor’s office displayed in the carrying out of the migration check – a matter clearly outside their competence – could be interpreted as an indication of that authority’s interest in ensuring the applicant’s return to Uzbekistan. However, the applicant, if removed to his home country, would be unable to benefit from the minimum guarantees he could have in extradition proceedings. 35. Thirdly, the defence maintained that domestic law prohibited the expulsion of a person who had applied for refugee status until a final decision in that respect had been made. However, the domestic court had omitted to elaborate on that aspect of the case. They argued that, contrary to the first-instance court’s findings, the requirement to take into account the proceedings in respect of the applicant’s refugee status had had no effect on the lower court’s findings as to whether an administrative offence had – or had not – taken place. However, it could have had a bearing on the determination of the administrative sanction. In that regard, they drew the appeal court’s attention to the fact that administrative removal constituted a sanction additional to an administrative fine. 36. Fourthly, the defence stressed that the first-instance court had failed to make any assessment of their ill-treatment argument. Having referred to the Court’s case-law, they reiterated their extensive submissions as regards the risk of ill-treatment if the removal order were to be enforced. They complained that the first-instance court had refused to admit to the case the reports by reputable NGOs, the Russian courts’ decisions, or the Court’s decisions in similar cases. 37. Lastly, the defence 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. 38. The examination of the case was initially scheduled for 2 September 2013 but was adjourned in order to obtain updated information on the proceedings in respect of the applicant’s refugee status from the Federal Migration Service. 39. On 18 September 2013 the Moscow City Court upheld the judgment of 31 July 2013, 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 upheld the administrative sanction as lawful and found no grounds to amend it. The court rejected the applicant’s argument to the effect that he could not be removed from Russia in the absence of a final decision in the refugee-status proceedings as irrelevant, since “the examination of the respective appeal did not have a bearing on the event or the legal qualification of the administrative offence”. The court further noted that, in any event, on 27 August 2013 his application for refugee status had been refused. As regards the applicant’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner, the court considered that this circumstance did not constitute a ground for quashing the lower court’s judgment. It argued that that violation had been insignificant, since the time at which the respective record of the administrative offence had been drawn up had not had a “preclusive effect («не является пресекательным»)”. 40. At some point in May 2013 the applicant applied to the Moscow Department of the Federal Migration Service (“the Moscow FMS”) for refugee status in Russia on the grounds of fear of persecution on account of fabricated charges against him relating to a religious offence. He submitted that the accusations against him were unfounded. On 24 June 2013 his case was accepted for consideration. 41. On 6 August 2013 the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) concluded, in a letter to the applicant’s representative, that there existed a real risk of ill-treatment of persons whose extradition was sought in connection with politically motivated charges of a religious nature. 42. On 27 August 2013 the Moscow FMS rejected the applicant’s application for refugee status. According to a copy of the decision as submitted by the parties, it observed that the applicant was wanted in Uzbekistan in connection with his alleged membership of HT and noted that “the initiator of the search had confirmed its intention to claim extradition”. The authority reiterated that it was for a petitioner to adduce persuasive arguments why there existed an individual risk of persecution on the grounds of nationality, religious beliefs or membership of a social group. The authority took note of both the administrative removal order of 31 July 2013 (see paragraph 31 above) and the indication by the Court of an interim measure in the applicant’s case (see paragraph 4 above). The Moscow FMS found as follows: “It transpires from the case materials that after the death of the applicant’s mother in 1999 the applicant’s father married another woman. In order to obtain the father’s heritage, in 2002 she complained to the local police that some time before the applicant had come to Uzbekistan to kill his father. However, according to the applicant, criminal proceedings had not been brought against him. However, in 20092010 she wrote a new complaint, this time accusing the applicant of extremism. It may be concluded from the above that the reason for which, according to the applicant, unfounded charges had been brought against him was a domestic conflict.” 43. The Moscow FMS also noted that the applicant had deliberately hidden the fact of the State border transfer between 1 and 18 November 2009 and that he had not applied for refugee status until his arrest, even though he had learned of the extremism charge against him in 2010. The authority also observed that the applicant’s brother was living in Uzbekistan and had not been persecuted. It therefore concluded that the applicant had lodged a request with the sole purpose of avoiding criminal prosecution in Uzbekistan and that he did not satisfy the refugee criteria. 44. On 26 October 2013 the defence lodged an appeal against the refusal with the Russian FMS office, arguing that the FMS Moscow 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. They submitted, in response to the regional authority’s findings (see paragraph 42 above), that it was immaterial who had brought the complaint against the applicant. Nor was the situation of his brother of relevance, since no criminal case had been opened against him in Uzbekistan. Contrary to the migration authority’s findings, the applicant had not learned about the exact nature of the charges or the stage of the proceedings against him in Uzbekistan until his arrest. The fact of his border crossing in 2009 was of little relevance and did not undermine his statement that since 1999 he had not left Russia for a considerable period of time. The Moscow FMS in its decision had referred to the extradition proceedings but had omitted to note the crucial point, namely the fact that extradition had been refused in the meantime (see paragraph 15 above). Lastly, the defence reiterated that the practice of torture against detainees in Uzbekistan could be described as systemic and that there was no evidence of any improvement in recent years. The defence referred, in particular, to the concluding observations of the UN Human Rights Committee of 2010, as well as the Human Rights Watch reports of 2011 and 2013 (see paragraphs 67-68 below), the Amnesty International reports published in May and July 2013 (see paragraphs 71-72 below), and other material (see paragraphs 64 and 66 below). They maintained that the applicant, charged with membership of HT, ran a particularly serious risk of illtreatment and detention in his home country. 45. On 25 December 2013 the Russian FMS rejected the applicant’s appeal. The federal migration authority considered that the Moscow FMS had thoroughly analysed all the relevant circumstances and had taken a wellfounded and lawful decision that the applicant did not meet the refugee criteria. The Russian FMS further noted that it was not competent to conduct investigative activities within a criminal case or to doubt the wellfoundedness of the materials submitted by the Prosecutor’s Office of the Russian Federation about the criminal case brought by the Uzbek authorities. 46. By the same decision the Russian FMS instructed the Moscow FMS to examine the issue of granting the applicant temporary asylum in Russia, with regard to the indication made by the Court under Rule 39 of the Rules of Court (see paragraph 4 above). The parties have not informed the Court of any follow-up to that instruction. 47. On 26 February 2014 the defence challenged the decision of 25 December 2013 before the Basmannyy District Court of Moscow as unlawful and unfounded. They reiterated their earlier submissions regarding the risk of ill-treatment in the event of the applicant’s expulsion (see paragraphs 40 and 44 above) and referred, in addition to the international material cited in their earlier submissions, to the World Report released by Human Rights Watch in January 2014 (see paragraph 69 below). They argued that the federal migration authority had failed to address the foreseeable consequences of the applicant’s removal to Uzbekistan, and above all the risk of ill-treatment run by the applicant in the event of his removal. Instead of conducting such an analysis, the migration authority argued that they were not competent to conduct an investigation or review the extradition materials, even though that issue had been clearly outside the scope of the applicant’s request. That attitude, in the applicant’s view, rather demonstrated that the Russian FMS were relying on the presumption of his guilt in the criminal proceedings brought against him by the Uzbek authorities. 48. It appears that the appeal proceedings are pending to date. 49. After his arrest on the evening of 30 July 2013 (see paragraph 22 above) the applicant was placed in a cell at the Mozhaiskiy District police station of Moscow. 50. According to the applicant, the cell measured 4.5 sq. m and accommodated, during the applicant’s detention there, between four and fifteen detainees. It was separated from the main corridor by a barred grill. The applicant did not have an individual sleeping place, since the cell was equipped with only one metal bench instead of beds. There were no windows in the cell, so he had no access to natural light and air. The cell was not equipped with a lavatory or toilet facilities. No linen or mattresses were available. The applicant received food and water once a day. 51. According to the Government, the cell measured 5.46 sq. m. The applicant was provided with food and bed linen. 52. At 12.10 p.m. on 5 August (according to the Government) or on 6 August 2013 (according to the applicant) the applicant was transferred to the Moscow special detention centre for foreigners. The parties have not submitted documents in respect of the date of that transfer. 53. The applicant is detained in the Moscow special detention centre for foreigners to date.