1. The case originated in an application (no. 14049/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbek national, Mr Abdulazhon (also spelled as Abdullazhon) Isakov (“the applicant”), on 21 March 2008.
2. The applicant was represented by Ms S. Gannushkina and Ms E. Ryabinina, who were assisted by lawyers of the EHRAC/Memorial Human Rights Centre, an NGO with offices in London and Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that his detention by Russian authorities in view of his extradition to Uzbekistan where he faced politically-based persecution by the local authorities gave rise to violations of his rights under Articles 3, 5 and 13 of the Convention.
4. On 10 November 2008 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Russia, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice.
5. On 1 April 2009 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).
6. The applicant was born in 1963 and is currently detained in Tyumen.
7. The facts of the case, which were partially disputed by the parties, may be summarised as follows.
8. In 1981 the applicant, who was born and lived in Uzbekistan, received an Uzbek passport. In 1989 he moved from Uzbekistan to Russia. From 1989 to 1995 the applicant resided on Shishkova Street, Tyumen, Russia.
9. It appears that in June 1995 the applicant officially informed the Uzbek authorities that he had changed his permanent residency from Uzbekistan to Russia. From 1995 to 2001 the applicant was officially registered as residing in Chikcha, the Tyumen Region. Since 13 March 2001 the applicant has been officially registered as residing on Doronina Street in Tyumen.
10. In December 2000 the applicant exchanged his USSR passport for a Russian passport in Department of the Interior no. 6 in the Tsentralniy district of Tyumen (ГОМ-6 УВД Центрального района Тюмени).
11. On 13 July 2005 the Passport and Visa Service of the Tyumen Regional Department of the Interior (the UVD) examined the validity of the applicant's Russian passport and stated that the document had been issued unlawfully, that it should be confiscated as invalid and that the applicant was not a Russian citizen.
13. On 15 August 2008 (the document is also dated 15 August 2005) the applicant complained to the Tsentralniy district court of Tyumen and requested that the decision of 13 July 2005 be overruled as unlawful. The applicant stated, among other things, that he was a Russian citizen and that he had not been informed about the decision concerning the invalidity of his passport until the hearing conducted on 27 March 2008 by the Tsentralniy district court on the issue of his detention pending extradition to Uzbekistan (see part 3,-“Extradition proceedings”, below).
14. On 22 August 2008 the Tsentralniy district court refused to examine the applicant's complaint. The applicant appealed and on 29 September 2008 the Tyumen regional court overruled that decision and remitted the case for a fresh examination.
15. On 15 October 2008 the Tsentralniy district court again refused to examine the applicant's complaint.
16. The applicant lodged a civil claim challenging the validity of the decision of 13 July 2005. On 25 February 2009 the Tsentralniy district court rejected the claim, stating that the applicant had failed to substantiate his allegation that he had been a legal resident of Russia since 6 February 1992 and that therefore he could not be a Russian citizen.
17. On 20 April 2009 this decision was upheld on appeal by the Tyumen Regional Court.
18. On 12 June 1998 the Namangan regional prosecutor's office of Uzbekistan (the Namangan prosecutor's office) opened a criminal case against the applicant under Article 159 § 4 of the Uzbek Criminal Code (attempt to violently overthrow the State's constitutional order). The applicant was accused of “... actively participating in the subversive activities of an extremist movement ... by conducting the holy war “jihad” ... to create an Islamic state”.
19. On 29 June 1998 the applicant was charged in absentia and his name was put on the wanted list.
20. On 20 October 2003 the Namangan prosecutor's office brought additional charges against the applicant under Article 242 of the Uzbek Criminal Code (organisation of a criminal group and subversive activities). The applicant was charged in absentia. The decision also stated that the applicant should be arrested and his name should remain on the wanted list. The Uzbek courts did not issue orders for his arrest.
21. On 6 March 2008 the applicant was arrested by officers of the Tyumen town department of the interior (the GUVD) on unknown grounds.
22. On 7 March 2008 the applicant was placed in FBU/IZ-72/1 (“the detention centre”). The decision to arrest the applicant and detain him in the detention centre was not authorised by a court.
23. On 27 March 2008 the Tsentralniy district court of Tyumen authorised the applicant's detention in view of extradition. The decision did not provide any time-limits for his detention.
24. On 7 April 2008 the Uzbek Prosecutor General's office officially requested the Russian Prosecutor General's office to extradite the applicant to Uzbekistan to be prosecuted as charged by the local authorities.
25. On 12 August 2008 the Russian Prosecutor General's office decided to extradite the applicant.
26. On 19 August 2008 the applicant was informed about the extradition order.
27. On 25 August 2008 (in the document the date was also stated as 25 August 2006) the applicant appealed against the extradition order to the Tyumen regional court. He stated, inter alia, that he was sought by the Uzbek authorities for alleged commission of political crimes and participation in an extremist religious movement. The applicant denied the accusations and stated that under Russian law the alleged religious activity was not prohibited.
“... in their extradition request the Uzbek authorities guarantee that the applicant will be prosecuted only for the crimes his extradition is requested for and that after the trial and the completion of his sentence he will be able to freely leave Uzbekistan and that he won't be extradited to a third country without the consent of the Russian Federation.
29. On 5 October 2008 the applicant appealed against this decision to the Supreme Court of the Russian Federation (the Supreme Court). The applicant stated, inter alia, that the Tyumen regional court had ignored his allegations of a risk of ill-treatment in Uzbekistan; that his detention from 6 March to 27 March 2008 had not been authorised by a court; that the court order of 27 March 2008 authorising his detention pending extradition had not provided any time-limits; that the detention had been excessively long and its extensions had not been authorised by court orders.
30. On 10 November 2008 the European Court of Human Rights granted the applicant's request for the application of interim measures under Rule 39 of the Rules of Court to suspend his extradition to Uzbekistan.
31. On 22 December 2008 the Supreme Court upheld the decision of the Tyumen regional court and the extradition order. The ruling, inter alia, referred to the assurances provided by the Uzbek authorities that “... the Republic of Uzbekistan guarantees that A.M. Isakov will not be subjected to torture and that his constitutional rights in Uzbekistan will be protected”. The Supreme Court did not examine any of the applicant's complaints concerning the lawfulness and the length of his detention pending extradition.
32. On 5 May 2009 the applicant applied to the Tyumen FMS requesting asylum, stating that the extradition order against him had been finalised, that the authorities had declared his Russian citizenship invalid and that he was being persecuted in Uzbekistan for his religious beliefs.
33. On 10 September 2009 the Tyumen FMS informed the applicant that on 7 September 2009 they had rejected his asylum request as it had been motivated by “...fear of lawful prosecution for a committed crime”.
34. On 5 October 2009 the applicant appealed against that decision to the Russia FMS.
35. On 8 December 2009 the Russia FMS dismissed the applicant's appeal and upheld the decision of the Tyumen FMS.
36. On 21 January 2010 the applicant appealed against the decision of the Russia FMS to the Basmanniy district court of Moscow. The proceedings are still pending.
37. At the beginning of March 2010 the applicant applied to the Tyumen FMS with a request for temporary asylum.
38. On 17 March 2010 the Tyumen FMS granted the applicant temporary asylum in Russia for one year, stating, inter alia, that the measure had been applied in view of the examination of the applicant's case by the Court.
39. On 23 June 2008 the applicant complained about his detention to the head of the detention centre and requested to be released. He stated that his detention was unlawful as it had been neither authorised nor extended by court orders.
40. On 23 or 24 June 2008 the head of the detention centre refused to release the applicant and informed him that under Article 109 of the Criminal Procedure Code his detention pending extradition “would not exceed 18 months”.
41. On 14 March 2008 the applicant complained to the Kalininskiy district court of Tyumen that his detention pending extradition was unlawful and requested to be released.
42. On 27 March 2008 the Tsentralniy district court of Tyumen decided to detain the applicant in view of his extradition to Uzbekistan. In its decision the court referred to Article 466 § 1 of the Russian Criminal Procedure Code (“the Criminal Procedure Code”). The decision did not provide time-limits for the detention.
43. On 1 April 2008 the Kalininskiy district court rejected the complaint, stating that the decision to detain the applicant did not contravene the regulations concerning detention on remand (Article 108 of the Criminal Procedure Code) and that it had already been authorised on 27 March 2008 by the Tsentralniy district court. The applicant appealed against this decision, stating, inter alia, that between 6 and to 27 March 2008 he had been detained without a court order.
44. On 6 May 2008 (in the submitted documents the date was also referred to as 15 April 2008) the Tyumen regional court dismissed his appeal. The court did not examine the issue of the lawfulness of the applicant's detention between 6 and 27 March 2008; it rejected the appeal for the same reasons as the ones stated in the decision of 1 April 2008.
45. On 28 August 2008 the applicant again lodged a complaint with the Kalininskiy district court challenging the lawfulness of his detention pending extradition. He pointed out that it had been more than five months since his arrest, but his detention had not been extended by domestic courts, in violation of Article 109 of the Criminal Procedure Code. The applicant further stated that his complaint to the head of the detention centre of 23 June 2008 had been rejected without a proper legal basis and requested the court to overrule the decision of the head of the detention centre.
46. On 4 September 2008 the Kalininskiy district court rejected the applicant's complaint, stating that the applicant should have appealed against the decision of 23 June 2008 through civil proceedings. On the same date the applicant appealed against the court's decision to the Tyumen regional court.
47. On 30 September 2008 the Tyumen regional court rejected the applicant's appeal and upheld the decision of the district court.
48. On 5 October 2008, in his appeal against the extradition order, the applicant lodged a detailed complaint with the Supreme Court challenging the lawfulness and the length of his detention pending extradition (see paragraph 29 above). In its decision of 22 December 2008 the Supreme Court did not examine the applicant's complaints concerning the lawfulness and length of his detention pending extradition (see paragraph 31 above).
49. On 18 November 2008 the applicant again complained to the Kalininskiy district court stating that for more than eight months his detention pending extradition had not been extended by court orders.
50. On 20 November 2008 the Kalininskiy district court refused to examine the applicant's complaint stating that the applicant had failed to specify “... whether any criminal proceedings had been pending against him in Tyumen and by which local authority they had been initiated...”.
51. On 27 January 2009 the applicant again complained to the Kalininskiy district court, stating that for more than ten months his detention had not been extended by court orders.
52. On 6 February 2009 the district court left the applicant's complaint without examination as he was supposed to use a different procedure to appeal against the alleged unlawfulness of his detention.
53. On 3 August 2009 that decision was upheld by the Tyumen regional court through the supervisory review procedure.
54. On 6 September 2009 the maximum eighteen-month detention period laid down in Article 109 of the Russian Code of Criminal Procedure expired, but the applicant remained in detention.
55. On 17 December 2009 the applicant again complained to the Kalininskiy district court that his detention pending extradition was unlawful and requested to be released.
56. On 14 January 2010 the district court refused to order the applicant's release and stated that his detention was warranted by the application of the interim measure by the Court. The applicant appealed against this decision to the Tyumen regional court.
57. On 16 February 2010 the Tyumen regional court held that the applicant's detention had exceeded the maximum detention period prescribed by the Code of Criminal Procedure and ordered his release.
58. On 5 March 2010 the applicant was released from detention.
59. The Government disagreed with the statement of facts as presented by the applicant and, without referring to any specific documents and/or submitting copies of them, they stated the following.
60. According to the Government's submissions, the Uzbek Prosecutor General's office provided the Russian authorities with the following assurances; “... the applicant will be prosecuted only for the crimes listed in the extradition request; after the trial and the completion of sentence he will be able to leave Uzbekistan without restraint. The applicant will not be deported or extradited to a third country without the consent of the Russian Federation”.
61. They further stated that the sanctions for the crimes with which the applicant had been charged by the Uzbek authorities did not extend to the death penalty.
62. The Russian Prosecutor General's office requested that the Russian Ministry of Foreign Affairs and the Russian Federal Security Service provide information concerning the applicant's alleged persecution in Uzbekistan. According to their replies, there were no circumstances preventing the applicant's extradition to Uzbekistan; no information had been received confirming that the persecution had been politically motivated.
65. On 25 March 2008 the Tyumen regional prosecutor's office requested the Tsentralniy district court to order the applicant's detention in the view of his extradition to Uzbekistan.
66. On 27 March 2008 the district court granted the request and ordered the applicant's detention in accordance with Articles 97-101, 108 and 466 § 1 of the Criminal Procedure Code. The applicant was informed about his right to appeal against this decision to the Tyumen regional court. The applicant exercised this right and appealed against the detention order.
67. On 15 April 2008 the Tyumen regional court dismissed the applicant's appeal and upheld the detention order.
70. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2).
71. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent. A person may also be arrested in the absence of such request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61).
72. A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1).
73. Chapter 13 of the Russian Code of Criminal Procedure (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), which include, in particular, placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years' imprisonment, provided that a less restrictive measure of restraint cannot be used (Article 108 §§ 1 and 3). The period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4).
74. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1). The court should examine the complaints within five days from its receipt.
75. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1). A person who has been granted asylum in Russia because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 § 1 (2)).
76. An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6).
77. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his/her rights or freedoms, hindering the realisation of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the realisation of the rights and freedoms in question (Article 258 § 1).
79. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
80. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without respecting the procedure established in the CCP, or in excess of the time-limits fixed therein.
81. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition.
82. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction.
83. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure.
“1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
85. The Refugees Act (Law no. 4258-I of 19 February 1993) incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1 § 1 (1)).
86. The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2 § 1 (1, 2)).
87. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10 § 1).
88. If a person satisfies the criteria established in section 1 § 1 (1), or if he does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12 § 2). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4).
“51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return.
743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted.
22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases.
94. United States Department of State, 2009 Country Reports on Human Rights Practices - Uzbekistan, 11 March 2010.
Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme Islamist political sympathies, notably pretrial detainees who were alleged members of banned extremist political organizations Hizb ut-Tahrir (HT) or Nur. Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government. Two human rights defenders who were arrested reported beatings in pretrial detention facilities.
Prison conditions remained poor and in some cases life threatening. There continued to be reports of severe abuse, overcrowding, and shortages of food and medicine. Tuberculosis and hepatitis were endemic in the prisons, making even short periods of incarceration potentially life-threatening. Family members frequently reported that officials stole food and medicine that were intended for prisoners.
There were reports that authorities did not release prisoners, especially those convicted of religious extremism, at the end of their terms. Instead, prison authorities contrived to extend inmates' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society. These accusations were not subject to judicial review.
“38. Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment.
39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case?
96. The Government contended that the application should be declared inadmissible as incompatible ratione personae. They submitted that the applicant had not been extradited by the Russian authorities to Uzbekistan, the measure at issue had not been applied to him, his extradition had been suspended and therefore he could not claim to be a victim of a violation of Article 3.
97. The applicant contested the objection and submitted that there was a high risk of his ill-treatment if extradited to Uzbekistan, that the decision to extradite him had been finalised by the Russian authorities and that his extradition had been suspended only due to the application of the interim measures by the Court.
98. The Court reiterates that an individual may no longer claim to be a victim of a violation of the Convention where the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (see, among many authorities, Achour v. France (dec.), no. 67335/01, 11 March 2004, where the authorities annulled the expulsion order against the applicant, and Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III).
99. As to the specific category of cases involving expulsion measures, the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable (see Vijayanathan and Pusparajah v. France, § 46, 27 August 1992, Series A no. 241-B; see also Pellumbi v. France (dec.), no. 65730/01, 18 January 2005, and Etanji v. France (dec.), no. 60411/00, 1 March 2005). It has adopted the same stance in cases where execution of the deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Kalantari v. Germany (striking out), no. 51342/99, §§ 55-56, ECHR 2001-X, and Mehemi v. France (no. 2), no. 53470/99, § 54, ECHR 2003-IV; see also Shamayev and Others v. Georgia and Russia, no. 36378/02, § 355, ECHR 2005-III; Andrić v. Sweden (dec.), no. 45917/99, 23 February 1999; Benamar and Others v. France (dec.), no. 42216/98, 14 November 2000; and Djemailji v. Switzerland (dec.), no. 13531/03, 18 January 2005).
100. The present application concerns the applicant's extradition to Uzbekistan where, according to him, he would face a serious risk of ill-treatment by the authorities on account of his political and religious beliefs. The Court observes, firstly, that the decision concerning the applicant's extradition was finalised by the Russian authorities in December 2008; and secondly, that the decision not to extradite the applicant until further notice from the European Court was taken by the Russian authorities in November 2008 only because of the application of Rule 39 of the Rules of Court. Clearly, the fact that the applicant had not been handed over to the Uzbek authorities did not constitute any acknowledgment, whether explicit or implicit, on the part of the Russian authorities that there had been or would have been a violation of Article 3 or that the applicant's extradition order had been deprived of its legal effect.
101. In these circumstances, the Court considers that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention.
103. The Government submitted that the allegation of the applicant's politically-based persecution had been checked by the Russian courts when examining his appeals against the extradition order and had been rejected as unfounded. The Russian courts had relied on the statement from the Uzbek Prosecutor General's office that there would be no risk of ill-treatment for the applicant if he were extradited to Uzbekistan. With reference to assurances from the Uzbek authorities the Government argued that the applicant would not be subjected to ill-treatment or punishment contrary to Article 3 of the Convention.
104. The applicant maintained that he had argued before the Russian courts that there was a real risk of his ill-treatment and political persecution in Uzbekistan. He had submitted reports on Uzbekistan by the UN institutions and international NGOs, confirming that torture was widespread in detention facilities and that this information had not been properly assessed by the Russian authorities. He pointed out that the courts had rejected his arguments without giving any reasons other than the reference to the assurances given by the Uzbek authorities. Finally, he referred to a number of cases examined by the Court in which it had been established that extradition to Uzbekistan of a person sought for political crimes would constitute a violation of Article 3.
105. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
106. For a summary of the relevant general principles emerging from the Court's case-law see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 66-70, ECHR 2005-I.
107. From the materials submitted by the parties it appears that the applicant was arrested in Russia and subsequently detained at the request of the Uzbek authorities, who suspected him of a number of crimes, including an attempt to overthrow the Constitutional order and membership of an extremist organisation. The Russian authorities commenced extradition proceedings against him. Throughout the proceedings the applicant claimed that his extradition to Uzbekistan would expose him to a danger of ill-treatment. He also lodged an application for asylum, reiterating his fears of torture and persecution for political motives. He supported his submissions with reports prepared by UN institutions and international NGOs describing the ill-treatment of detainees in Uzbekistan. The Russian authorities rejected his application for refugee status and ordered his extradition to Uzbekistan.
108. The Court's task is to establish whether there is a real risk of ill-treatment in the event of the applicant's extradition to Uzbekistan. Since he has not yet been extradited owing to the application by the Court of an interim measure under Rule 39 of the Rules of Court, the material date for the assessment of that risk is that of the Court's consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V).
109. As to the applicant's allegation that detainees suffer ill-treatment in Uzbekistan, the Court has recently acknowledged that this general problem still persists in the country (see for example, Ismoilov and Others v. Russia, no. 2947/06, §§ 120-121, 24 April 2008, and Muminov v. Russia, no. 42502/06, §§ 93-96, 11 December 2008). No concrete evidence has been produced to demonstrate any fundamental improvement in this area in Uzbekistan in the last several years. Given these circumstances, the Court considers that ill-treatment of detainees is a pervasive and enduring problem in Uzbekistan.
110. As to the applicant's personal situation, the Court observes that he was charged with politically motivated crimes. Given that an arrest warrant was issued in respect of the applicant, it is most likely that he would be directly placed in custody after his extradition and would therefore run the serious risk of ill-treatment.
111. As to the Government's argument that assurances were obtained from the Uzbek authorities, firstly, the Government did not submit a copy of any diplomatic assurances indicating that the applicant would not be subjected to torture or ill-treatment. Secondly, the Court has already cautioned against reliance on diplomatic assurances against torture from a State where torture is endemic or persistent (see Chahal, cited above, and Saadi v. Italy [GC], no. 37201/06, §§ 147-148, ECHR 2008). Given that the practice of torture in Uzbekistan is described by reputable international experts as systematic (see paragraphs 91, 92 and 94 above), the Court would not be persuaded that assurances from the Uzbek authorities could offer a reliable guarantee against the risk of ill-treatment.
112. Accordingly, the applicant's forcible return to Uzbekistan would give rise to a violation of Article 3 as he would face a serious risk of being subjected to torture or inhuman or degrading treatment there.
115. The Government insisted that the applicant's detention between 6 and 27 March 2008 had been lawful as it had been based on the decision of the Namangan prosecutor's office of 29 June 1998. They submitted that the detention after 27 March 2008 had been authorised by a domestic court and fully complied with the provisions of Article 466 of the Criminal Procedure Code and that the length of the detention had been conditioned by the necessity to verify the guarantees provided by the Uzbek authorities and to examine the issue of the applicant's citizenship. In addition, they submitted that the duration of the detention had lengthened owing to the application of the interim measure by the Court.
116. The Government contended that the applicant's complaint concerning the alleged failure of the domestic courts to review the lawfulness of his detention was manifestly ill-founded as he had challenged the lawfulness of his detention by unsuccessfully appealing against the court order of 27 March 2008 to the Tyumen regional court.
117. The applicant disagreed with the Government. He submitted that the domestic legislation required that his detention with a view to extradition should have been authorised by a domestic court within 48 hours of the arrest. Referring to the Court's case-law, he asserted that Russian laws concerning detention pending extradition did not comply with the Convention criteria of quality of law; that the length of his detention had been excessive as he had spent more than nineteen months in custody whereas the maximum length of detention under the domestic legislation could not exceed eighteen months. He further emphasised that the application of the interim measure by the Court had implied the suspension of his extradition to Uzbekistan, but it had not obliged the Russian authorities to prolong his detention. The applicant reiterated that his detention between 6 and 27 March 2008 had been unlawful as it had not been based on a court order and pointed out that at the time of his arrest the proceedings concerning his Russian passport had been pending and the issue of his nationality had not been clarified and that his arrest and detention in view of extradition had therefore been unlawful from the outset.
118. The applicant further submitted that his complaint of 14 March 2008 challenging the lawfulness of his detention pending extradition had been examined by the Kalininskiy district court only on 1 April 2008 and rejected solely on the basis that this detention had already been authorised by the Tsentralniy district court on 27 March 2008. Therefore, he had been deprived of the opportunity to challenge his detention between 6 and 14 March 2008 and the domestic courts had failed to speedily examine his detention. Finally, the applicant submitted that the domestic courts had refused to recognise him as a party to any relevant criminal proceedings and left his complaints without examination (see paragraphs 49-52 above).
119. The Court further notes that the applicant's complaints under Article 5 §§ 1 and 4 are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.
120. It is common ground between the parties that the applicant was detained as a person “against whom action is being taken with a view to deportation or extradition” and that his detention fell under Article 5 § 1 (f). The parties dispute, however, whether this detention was “lawful” within the meaning of Article 5 § 1 of the Convention.
121. The Court observes that the applicant was detained in Russia pursuant to an arrest warrant issued by a prosecutor's office in Uzbekistan. His detention was not confirmed by a Russian court, contrary to the provisions of Article 466 of the Criminal Procedure Code, which requires such authorisation unless the detention in the country seeking extradition has been ordered by a court. Therefore, the applicant's detention pending extradition between 6 and 27 March 2008 was not in accordance with a “procedure prescribed by law” as required by Article 5 § 1.
122. As to the Government's argument that the applicant's situation was remedied by the decision of 27 March 2008, the Court notes that, apart from authorising his detention as of that date, the domestic court did not order or take steps to ensure his release or otherwise remedy the violation of his right to liberty and security for the period between 6 and 27 March 2008.
123. In a number of its recent judgments the Court has already found that the provisions of the Russian law governing detention of persons with a view to extradition were neither precise nor foreseeable in their application and fell short of the “quality of law” standard required under the Convention (see, for example, Nasrulloyev v. Russia, no. 656/06, § 72, 11 October 2007, Ismoilov and Others, cited above § 142, Muminov, cited above, § 122, and Khudyakova v. Russia, no. 13476/04, § 73, 8 January 2009).
124. The Court upholds the findings made in the above-mentioned cases and finds that in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to extradition and setting time-limits for such detention, the deprivation of liberty to which the applicant was subjected was not circumscribed by adequate safeguards against arbitrariness. In particular, the Court observes that the detention order of 27 March 2008 did not set any time-limit for the applicant's detention. Under the provisions governing the general terms of detention (Article 108 of the Criminal Procedure Code), the time-limit for detention pending investigation was fixed at two months. A judge could extend that period up to six months. Further extensions could only be granted by a judge if the person was charged with serious or particularly serious criminal offences. However, upon the expiry of the maximum initial detention period of two months (Article 109 § 1 of the Criminal Procedure Code), no extension was granted by a court in the present case. The applicant has been in detention pending extradition for over two years. During that period no requests for extension of his detention have been lodged. Thus, the national system has failed to protect the applicant from arbitrary detention, and his detention cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention.
125. The Court also takes note of the Government's reference to the effect that at the time of the applicant's arrest and his subsequent detention between 6 March 2008 and 20 April 2009 (see paragraphs 12-17 above) the authorities had been fully aware of the fact that the issue of his Russian citizenship had not been finally resolved and that the Russian legislation excludes, in non-ambiguous terms, the extradition of Russian nationals (see, mutatis mutandis, Garabayev v. Russia, no. 38411/02, § 89, ECHR 2007-VII (extracts)).
126. In view of the above, the Court finds that the applicant's detention during the period in question was unlawful and arbitrary, in violation of Article 5 § 1.
127. The Government argued that the applicant had made use of the opportunity to challenge the lawfulness of his detention by lodging an appeal against the court order of 27 March 2008, which had been rejected by the Tyumen regional court on 6 May 2008.
128. The applicant argued that his detention pending extradition had never been reviewed by a court, despite his numerous complaints. He had thus been unable to obtain judicial review of his detention pending extradition, in violation of Article 5 § 4.
129. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). The remedies must be made available during a person's detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see Čonka v. Belgium, no. 51564/99, § 46 and 55, ECHR 2002-I).
130. The applicant was detained in Russia pursuant to an arrest warrant issued by a prosecutor's office in Uzbekistan. As the Court has found above, the applicant's detention was not authorised by a Russian court, in violation of the relevant domestic provisions. The Tyumen regional court and subsequently the Supreme Court did not examine the complaints concerning the lawfulness of the applicant's detention pending extradition (see paragraphs 44 and 48 above). Thus, the lawfulness of the applicant's detention during the period in question was not examined by any court, despite his appeals to that effect.
131. There has therefore been a violation of Article 5 § 4 of the Convention on account of the absence of judicial review of the applicant's detention pending extradition.
133. The Government contended that the applicant had had access to domestic courts in respect of his complaints about the risk of ill-treatment. He had appealed against the extradition order to the Tyumen regional court and subsequently to the Supreme Court. They contended that this remedy was effective and the absence of a desirable outcome of the applicant's appeals did not demonstrate its ineffectiveness.
134. The applicant reiterated his complaint.
135. The Court further notes that the applicant's complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
136. The Court notes that the scope of a State's obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there are substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant's expulsion to the country of destination, and (ii) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (or “a remedy with automatic suspensive effect” as it is phrased in Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 66 in fine, ECHR 2007-V, which concerned an asylum seeker wishing to enter the territory of France; see also Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000-VIII; Shamayev and Others, cited above, § 460; Olaechea Cahuas v. Spain, no. 24668/03, § 35, ECHR 2006-X; and Salah Sheekh v. the Netherlands, no. 1948/04, § 154, ECHR 2007-I (extracts)).
137. Judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion and extradition, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002-II). Turning to the circumstances of the present case, the Court observes that the decision of the Prosecutor General's office to extradite the applicant was upheld on appeal by the Tyumen regional court and the Supreme Court. In their decisions the domestic courts did not conduct a detailed examination of the applicant's allegation of the risk of ill-treatment in Uzbekistan and only referred in general terms to the assurances provided by the Uzbek authorities (see paragraphs 28 and 31 above). Consequently, the courts failed to rigorously scrutinise the applicant's claims of the risk of ill-treatment in the event of his extradition to Uzbekistan.
138. It should also be noted that the Government did not refer to any provisions of domestic legislation which could have afforded redress in the applicant's situation or had a suspensive effect on his extradition (see, mutatis mutandis, Muminov, cited above, §§ 102-104).
139. Accordingly, the Court concludes that in the circumstances of the present case there has been a violation of Article 13 of the Convention because the applicant was not afforded an effective and accessible remedy in relation to his complaint under Article 3 of the Convention.
140. As regards the applicant's complaints under Article 5 of the Convention, in the light of the Court's established case-law stating that the more specific guarantees of Article 5, being a lex specialis in relation to Article 13, absorb its requirements (see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May 2006) and in view of its above findings of violations of Article 5 of the Convention, the Court considers that no separate issue arises in respect of Article 13 in connection with Article 5 of the Convention in the circumstances of the present case.
142. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.
143. The Government submitted that the amount claimed was excessive and that if the Court found any violation of the Convention the amount of the award should be decreased.
144. The Court, making an assessment on an equitable basis, awards EUR 20,000 to the applicant in respect of non-pecuniary damage as requested plus any tax that may be chargeable on that amount.
145. Relying on the fee agreements and the lawyers' timesheets, the applicant claimed EUR 3,700 or 3,239 pounds sterling (GBP) for the work of London-based lawyers Mr W. Bowring and Ms J. Evans together with administrative and translation costs and EUR 2,000 for the work of Ms Ryabinina for his representation before the domestic authorities and the Court.
146. The Government submitted that the applicant had not submitted any proof that the payments had actually been made and that the amounts were reasonable.
147. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,500 covering costs under all heads.
148. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
8. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 8 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


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The following interview was conducted on February 14, 2018 in Henrico, VA., by Art Education doctoral candidate Vivian Medina-Messner. This interview is part of the Virginia Art Education Association (VAEA) Distinguished Fellows Legends and Legacies Project.
Terry Adams is a retired art teacher from Ruby Carver Elementary School in Henrico, VA. He taught art education for 40 years. He retired in 2015. Mr. Adams was named Henrico County Elementary School Art Teacher of the Year in 1994, and Central Region VAEA Elementary Art Educator of the Year in 1994. During his 40-year career, he taught in 11 schools including Carver, Varina/Mehfoud, Longdale, Laburnum, Montrose, Short Pump, Jackson Davis, Godwin, Pinchbeck, and Dumbarton.
Vivian Medina-Messner (V. M-M): Mr. Adams, please tell us a little about your experience as a child working with art.
Terry Adams (T.A): I was born right here in Richmond, Virginia, in 1953. My parents, I guess, were very tidy people and liked the way things looked. That rubbed off me, initially. I always enjoyed it. Whether it was drawing, or painting, or clay. I just enjoyed that process even as a child, even though I did not have any formal (training) as a child. It was always there and something that I enjoyed.
V. M-M: So you took some pencils and paints and you went out to draw? How was that experience and process?
T. A.: Well, anytime that I had extra time, on the back of my homework paper, there was always a drawing. Unfortunately, I remember having to purchase some of my textbooks because I turned the corners of my books and draw little pictures on the corner. By the end of the year, I would have a complete 300-page flip book on a math book.
V. M-M: Is there a teacher or artist you could remember who inspired you when you were a child?
T.A.: Ann Graham comes to mind as the most influential. She was one of my high school art teachers who inspired me the most.
V. M-M: How did she inspire you? What type of things did she do as a teacher to nurture your talent?
T. A.: She had the philosophy that you could do it, and you could be successful with art and that it was fun.
V. M-M: Tell me a little bit about yourself. What inspired you to become an art educator?
T. A.: Well, I’ve always enjoyed art. Thinking back (I’m going to date myself now) to when schools did not have art, in elementary school, I never had an art lesson. It wasn’t until high school that it was offered as an elective. And instantly, I went from a poor student to an honor roll student when I became involved in art classes. I was thrilled and really enjoyed that.
V. M-M: And what year was that?
T. A.: High school was the late 60s. I’m a lifelong Henrico resident so I went to Henrico County schools. They had something called the Art Guild which was for high school students who were very interested in art countywide. They would meet once a month and they would do anything from drawing and painting at Maymont Park or the Virginia River Park, going to the Virginia Museum, and even visits to the Smithsonian Museum. [We would meet] visiting artists in the area, as well as visiting VCU and the art program there. All that was just fascinating to me. I truly enjoyed it. And it made me decide that art was where I wanted to go.
V. M-M: How did you come to art education? Was it your first choice?
T. A.: Never in my wildest dreams did I think that I would go into art education or think that I wanted to be a teacher. I guess that I came about it in somewhat of a selfish way in that, during my freshman year at VCU [Virginia Commonwealth University], as an Art Foundation student, I had to declare a major at the end of the year. So I went through the catalogue and looked at the various offerings. In the painting department, it was basically painting and drawing and printmaking. It left out some stuff. What about clay? What about sculpture? When I looked at the other departments, I kept reading and reading, and I got down to art education and they had little bit of everything in the curriculum. There was painting, there was sculpture, ceramics, there was crafts, and that appealed to me. I didn’t think that I was that strong in any one medium. I enjoyed it all—all forms of art. Maybe that suited my attention deficit tendencies. That was the first reason why I went into art education. During that first year, there was an Introduction to Art Education course that I took and towards the end of the year, where they put us in front of the kids. [It was] a live teaching situation and I taught the class that I was assigned. Nobody was hurt. Nobody was crying and it was relatively successful. But the big thing that I noticed, there were lots of smiles. I think that from there on, I was hooked, so I went into art education.
V. M-M: And what year was it when you studied at VCU? How was your experience as you grew into the major?
T. A.: My freshman year that 1971; that’s when I started. I went to VCU from ‘71 to ‘75, and of course, graduated with a BFA in Art Education.
V. M-M: What made it a rich experience when you were a student there at VCU?
T. A.: I was just struck by the instructors there and what they had accomplished. I truly enjoyed what they had to say. I enjoyed their work. And it was great working with them.
V. M-M: Tell us about your teaching career? Where did you teach? And what positions did you hold? And what did you learn from them? How did it change from where you are now?
T. A.: I taught art in Henrico County for 40 years. I taught grades K-12. There were 11 different schools that I was assigned to over all those years. Part of that was based on art history. Every other week, so sometimes you would have 2 to 3 different schools to teach in a week. Some people look at that and think: 11 schools! That’s incredible, but sometimes there were 2 or 3 at a time there. I also taught summer school classes and I taught adult education classes through the adult education system in Henrico. One of my most interesting experiences is that I taught at the Math Science Center. That was kind of interesting. It grew out of a partners arts grant that I did as a teacher where we were using Leonardo da Vinci’s drawings of flying machines as inspiration. We were building flying machines and the people at the Math Science Center at the time were exploring that relationship between math, science and art. They approached me about doing my flying machine’s workshop.
V. M-M: Can also tell us about you experience at Ruby Carver Elementary? How many years did you work there? How was that experience?
T. A.: The bulk of my career was at [Ruby] Carver Elementary School. I was there 29 years. Sometimes during the early years, it was in conjunction with other schools that were paired with it. But in the final years, it was interesting and enjoyable. That school fit the assignment perfectly. I was just at Carver. That was just really nice, just to be in one place.
V. M-M: What years were those?
T. A.: I think 1986 to 2015.
V. M-M: You mentioned that you also taught in adult education. Please tell us how different is it to teach art to adults?
T. A.: Most of the classes that I did for adults in adult education were Intro to Ceramics classes. It was not much different. Some of the things that adults did were very similar to what a child would do in learning the fundamentals of handling the clay.
V. M-M: Is there a specific or favorite medium that you have? What do you enjoy the most?
T. A.: I always have a hard time with that question because, to this day, I’m still scattered. I enjoy it all. I enjoy clay just as much as I enjoy mixing the colors and the process of painting. I like switching around. I think that’s why I like teaching so much because you didn’t do the same thing day in and day out. It was always different. It was always a challenge. That was interesting to me.
V. M-M: How has teaching art education changed throughout your career? How did teaching art education change with the introduction of technology?
T. A.: Technology was probably the biggest change that I have seen. I enjoyed that change and I embraced that. I remember doing some workshops in the Virginia Art Education Association, dealing with digital art and learning to master that medium. Some of what I didn’t enjoy was how the length of classes changed over the years. When I first started we had 4 one-hour classes a day, then it went to 5 fifty-minute classes a day, then it went to 6 forty-minute classes a day and then there was even a push to go into 8 thirty-minute periods a day, which I found it to be not appropriate at all for art. It became very rushed and very hectic. I didn’t enjoy that change and that emphasis in trying to go that direction.
V. M-M: Which experiences stand out in your mind?
T. A.: What I remember the most are the smiles. The accomplishment of the kids. Their realization that at the end of a project that they did it. When we have exhibits, their parents were invited in and got to see it. I would photograph them standing with their mom and dad and they were all smiles. Parents were proud and the kids were proud. I think that’s what it is all about.
V. M-M: Looking back on your career, what do you consider your goals and accomplishments as an art educator, as an advocate for art education and as an artist?
T. A.: Well, the first goal is to survive with kids in the classroom all day [laughing]. It can be very hectic and very challenging. But all the smiles, all the successes that we had with their projects, even to this day, when kids see me, they say we had a good time, that we enjoyed art. They are not artists today necessarily, but they remember what we did and they remember the fun we had. That was my goal: to enjoy what I was doing and hopefully to share that with children.
V. M-M: What changes or contributions have you made to art education either with individuals or in the larger picture?
T. A.: I’m especially proud of some of the children that I was able to reach. There were some who were troubled, some who were poor students who I think that gained a new insight into education and enjoyed their art. I had some students that won awards, whether it was for AAA traffic posters or work selected to go onto other national exhibits. We had 3 Partners in the Arts grants that I was able to develop with the teachers and the students that were very successful.
V. M-M: What tips would you give to future art educators who want to find those grants and create projects with the community?
T. A.: Just look at the basics. Look what the SOLs or whatever the objectives are and find the connection between them and some form of art. I think that usually you don’t have to get too crazy or aggressive about it. Just keep it down to the basics. Bring it down to the children creating and keeping them involved in it as much as possible. Make it their work and not the grant work or the teacher’s work. Make it student-oriented as much as possible.
V. M-M: Is there anything else that you would like to share with future art educators?
T. A.: Just keep in mind that all children are creative. Let them be. As long as you foster that and have a lot of fun with the kids, they will have a lot of fun with you and the art, and it will be a very successful program.
V. M-M: Tell us about this book that inspired you.
V. M-M: And how did you apply that in the classroom?
T. A.: That was my way: Let the children be the decision makers. Let them do it their way within parameters, but not using templates, or patterns or coloring books. Just let them do it on their own. I think that we foster that naturally in an elementary school child. There’s often a lot said about how we lose that quality as we grow up. My interest is in maintaining that imagination, that creativity and that freedom, and to foster and encourage that as much as possible.
V. M-M: Do you hear from former students who are adults or students who moved to middle school or high school?
V. M-M: What are your plans, now that you are retired?
T. A.: Well, the highlight of my life now is being a grandparent. Being with my two grandchildren is just the joy of my life right now. Now that I’m not so involved in school and teaching daily, maybe I can spend more time with them and my three daughters as they get started their adult lives. I’m just taking time for me and taking care of myself better now than I did before. That’s also important. I strongly recommend retirement [says Mr. Adams smiling]. My wife and I have rekindled since we are both retired now and thoroughly enjoying that.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


This case is before me upon a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against GCC Rio Grande, Inc., (“GCC”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties settled six of the seven citations included in the docket and filed simultaneous cross-motions for summary decision to address the single remaining citation, Citation No. 8838556. For the reasons set forth below, the Secretary’s Motion for Partial Summary Decision is GRANTED, Respondent’s Motion for Partial Summary Decision is DENIED, and the Motion to Approve Partial Settlement is GRANTED.
The ladder accessing the deck on the west side of the additives grizzly had been damaged. The ladder and part of the handrail connected to it had been hit with a loader, resulting in broken welds and incorrect positioning of the ladder. Ladders shall be maintained in good condition. A miner attempting to use this ladder to access the deck would be exposed to slip, trip, and fall hazards because the ladder is not straight. Various injuries could occur.
Inspector Hurst determined that it was unlikely an injury or illness would be sustained as a result of the violation, but that any injury could reasonably be expected to result in lost workdays or restricted duty. She determined that the violation was not of a significant and substantial nature, would affect only one person, and was a result of Respondent’s low negligence. The Secretary proposed a penalty of $116.00 for the alleged violation.
1. GCC Rio Grande, Inc., owns and operates the Pueblo Plant & Quarry (the “Mine”), in Pueblo County, Colorado.
2. The Pueblo Plant & Quarry is a “mine” as that term is defined by § 3(h) of the Federal Mine Safety and Health Act of 1977.
3. The operation and products of the Mine affect commerce and the Mine is subject to the Mine Act.
4. On January 5, 2017, Inspector Hanna Hurst performed a regular E01 Inspection of the Mine.
5. Inspector Hurst issued Citation No. 8838556 to GCC on January 5, 2017, alleging a violation of 30 C.F.R. § 56.11003. Exhibit B.
6. Citation No. 8838556 alleges that a loader damaged the ladder on the west side of the additives grizzly, breaking welds and forcing the ladder into an incorrect position.
7. The ladder at issue is the only access to the west side of the additives grizzly.
8. Miners access the west side of the additives grizzly infrequently, only to clean spillage.
9. The ladder is only used to access the west side of the additives grizzly.
10. The cited ladder existed in the condition pictured in Exhibit C when Inspector Hurst issued Citation No. 8838556.
11. Red danger tape was placed across the only access point to the ladder.
12. Both ends of the red danger tape were secure.
13. The red danger tape showed no signs of falling.
14. The red danger tape existed as pictured in Exhibit C when Inspector Hurst issued Citation No. 8838556.
15. GCC’s Safety Handbook outlines its safety policy.
16. GCC trains and requires its miners to follow the requirements of its Safety Handbook.
17. GCC’s Safety Handbook includes use of red danger tape under the section that describes methods of barricading.
18. The Handbook defines Barricading as a method to limit or prevent access to potentially hazardous areas and to increase employee awareness.
19. Specifically, the Handbook states that red barrier tape labeled "Danger Do Not Enter" is utilized to prohibit admittance or passage through an area, except by authorized personnel who are working on the project requiring the barrier.
20. The Handbook requires that Barricades that represent no admittance (Ex. Red "Danger Do Not Enter" tape) be provided to prevent entry into areas that may present hazards such as falling materials, falling hot materials due to overhead cutting/welding/grinding, being struck by equipment operating in the area, etc.
21. Before entering a taped-off area, the Handbook requires miners to contact the Control Room or the individual that taped the area off.
22. Use of the ladder would require a miner to intentionally disregard GCC’s red danger tape policy.
23. No evidence exists that miners used the cited ladder or crossed the red danger tape in the cited area to access the barricaded area.
24. GCC did not assign any miner to perform any duties that required use of the ladder or access to the west side of the additives grizzly.
25. GCC did not have a work order in place to repair the ladder when Inspector Hurst issued Citation No. 8838556.
26. The Parties believe that there is no disputed issue as to any material fact and stipulate that this issue can be decided via motion based upon these stipulated facts.
The Secretary argues that GCC violated section 56.11003 when it failed to maintain a ladder that provided the only access to an area of the mine. Sec’y Mot. 3. There is no dispute that the ladder was damaged and had separated from the concrete to which it had been attached. Id. Accessing the ladder would have endangered the health and safety of a miner. Id. Although GCC had strung red danger tape several feet away from the access to the ladder, miners could easily duck under the tape to access the damaged ladder, GCC policy still allowed access to the area, and there were no plans to repair or remove the ladder. Id. 3-4. Contrary to GCC’s argument, the use of red danger tape does not defeat the violation, and its reliance on Essroc Cement Corp., 33 FMSHRC 456 (Feb. 2011) (ALJ) is misplaced, as that case is easily distinguished. Sec’y Mot. 5. The Secretary asserts that the gravity and negligence are not at issue, and notes that, while the operator had failed to schedule the replacement or repair of the ladder, the low negligence designation is supported by the procedure the operator had in place to recognize and correct hazards by using the red danger tape until the hazard could be addressed. Id. 6-7. Finally, the Secretary argues that the proposed penalty of $116.00 is appropriate and requests that the citation be affirmed as issued. Id. 8.
Respondent argues that Citation No. 8838556 should be vacated because the cited ladder had been barricaded to prevent its use. GCC Mot. 2. It avers that barricades which comply with section 56.20011 of the Secretary’s regulations, like the Secretary’s lockout/tagout procedures, remove areas from eligibility for MSHA inspection. Id. 5. Here, citing this court’s decision in Essroc Cement Corp., 33 FMSHRC 456 (Feb. 2011) (ALJ), it argues that the red tape was a barricade, noting that it was secure, physically obstructed the only possible access to the ladder, and informed miners that they should not enter the area. GCC Mot. 7-8. Moreover, GCC trained its miners so that they would never intentionally break or remove red tape and its internal handbook policies indicate that miners cannot access areas barricaded with red tape. Id. 8.
(2) That the moving party is entitled to summary decision as a matter of law.
The Commission has long recognized that “summary decision is an extraordinary procedure.” Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471(Nov.1981)). The Commission has analogized Commission Procedural Rule 67 to Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007); See also Energy West, 16 FMSHRC at 1419 (citing Celotex Corp v. Catrett, 477 U.S. 317, 327 (1986)). When the Commission reviews a summary decision under Rule 67, it looks “‘at the record on summary judgment in the light most favorable to . . . the party opposing the motion,’ and that ‘the inferences to be drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.’” Hanson Aggregates New York Inc., 29 FMSHRC at 9 (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The subject citation was issued under section 56.11003 which requires that “[l]adders shall be of substantial construction and maintained in good condition.” 30 C.F.R. § 56.11003. The parties have stipulated that “[t]he cited ladder existed in the condition pictured in [Sec’y Mot.] Exhibit C when Inspector Hurst issued Citation No. 8838556.” Jt. Stip. 10. Respondent does not dispute that the ladder presented a hazard and that the ladder had separated from the concrete to which it had been attached. I agree that the conditions depicted in Sec’y Mot. Ex. C clearly indicate that the ladder had not been maintained in good condition.
Respondent asserts that by stringing red caution tape across an area in front of the ladder it “barricaded” the ladder. In doing so, it argues that, just as MSHA’s lockout/tagout procedure removes equipment from service such that MSHA cannot cite it for hazardous conditions, “barricading” the ladder removed it from service with the result that MSHA should not have issued the subject citation. I find that the red danger tape used here was not a “barricade” as that term has been defined by the Secretary.
Section 56.20011, states in pertinent that “[a]reas where health or safety hazards exist that are not immediately obvious to employees shall be barricaded, or warning signs shall be posted at all approaches.” 30 C.F.R. § 56.20011. The safety standard further states that warning signs must “display the nature of the hazard and any protective action required.” Respondent does not argue that the red danger tape was a “warning sign” under section 56.20011. Moreover, the red danger tape did not display the nature of the hazard, with the result that the tape did not meet the requirements of the standard.
“Barricaded” is defined as “obstructed to prevent passage of persons, vehicles, or flying materials.” 30 C.F.R. § 56.2. Although the red danger tape suggested that miners not enter the area, it was not capable of preventing passage of persons. The Secretary’s regulations do not define “prevent passage.” The Commission has held that in the absence of a regulatory definition of a word, the ordinary meaning of that word may be applied. Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997). The dictionary defines “prevent,” as relevant to this analysis, as “to deprive of power or hope of acting or succeeding . . . [,] to keep from happening or existing . . . [,] to hold or keep back[.]” Webster's New Collegiate Dictionary 905 (1979).
A reasonable interpretation of the cited standard requires that the barricade do far more than put miners on notice of the hazard, but also must also act to hold them back and keep them from being able to access the hazard without at least some effort. It must impede travel into the hazardous area. The red danger tape was not capable of doing this. The Commission interprets safety standards to take into consideration “ordinary human carelessness.” Thomson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). Human behavior can be erratic and unpredictable. “Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or environmental distractions[.]” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983). I have previously applied these principles to a violation of section 56.20011. Lehigh Southwest Cement Co., 33 FMSHRC 340, 345 (Feb. 2011) (ALJ). As noted by the Secretary, a miner could easily duck below the tape. Consequently, I find that this red danger tape was not a barricade. Decisions of other Commission judges are consistent with this analysis.
Finally, I agree with the Secretary that Respondent’s reliance on my decision in Essroc Cement Corp., 33 FMSHRC 459, 474-75 (Feb. 2011) (ALJ) is misplaced. In that decision, I made clear that I was vacating the guarding citation at issue primarily because the cited area was more than seven feet from the walking or working surface, thereby satisfying an express exception in the Secretary’s standards. 30 C.F.R. § 56.14107. Issues involving the adequacy of the tape as a barricade were not sufficiently explored by the court in Essroc. Indeed, the operator’s argument in that case was based erroneously on the Secretary’s definition of the term “barrier.” 30 C.F.R. § 56.2. The Secretary’s definition of “barrier” specifically allows the use of “a warning sign or tape” to demarcate a hazardous area. As a result, I find that Essroc is distinguishable from the matter at hand.
I find that there are no genuine issues as to a material fact and that the Secretary is entitled to summary decision as a matter of law. Respondent violated section 56.11003, as alleged in the citation. Accordingly, I AFFIRM Citation No. 8838556 as issued.
I must assess a civil penalty for the violation based on the six penalty criteria set forth in the Mine Act. 30 U.S.C. § 820(i). GCC did not dispute the Secretary’s evidence of record regarding the application of the penalty criteria to the citation. Consequently, I accept the Secretary’s determinations. See 29 C.F.R. § 2700.67(d). The Secretary’s low gravity and negligence designations are affirmed. Exhibit A to the Petition for Penalty demonstrates that GCC abated the violation in good faith and that GCC is a medium sized operator with approximately 155,000 operator hours worked, while its controlling entity worked approximately 800,000 hours. In addition, data from MSHA’s Mine Data Retrieval System at its website shows that the Pueblo Plant & Quarry had a history of 89 violations in the 15 months preceding the issuance of the subject citation, 16 of which were significant and substantial. Based on the above, I find that the originally proposed penalty of $116.00 is appropriate for this violation.
I have considered the representations and documentation submitted and I conclude that the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act. The motion to approve settlement is GRANTED.
For the reasons set forth above, GCC Rio Grande Inc. is ORDERED TO PAY the Secretary of Labor the sum of $825.00 within 30 days of the date of this decision.
 In J.S. Redpath Corp., Judge Priscilla Rae determined that a strand of rope running from rib to rib, along with PVC pipe and orange plastic snow fencing was not an adequate barricade because, among other things, it was poorly constructed, had gaps, and was attached to the ribs in a “non-permanent unsecure manner” such that it would not have prevented entry of “persons, vehicles or flying materials.” 35 FMSHRC 2629, 2642 (Aug, 2013) (ALJ). In Newmont USA Limited, 34 FMSHRC 146, 161 (Jan. 2012) (ALJ) Judge John Lewis held that that a rope strung from rib to rib was incapable of preventing the passage of persons, vehicles or flying materials.
 “Barrier” is defined in section 56.2 as “a material object, or objects that separates, keeps apart, or demarcates in a conspicuous manner such as cones, a warning sign, or tape.” 30 C.F.R. § 56.2.
 The Secretary’s motion for partial summary decision and motion to approve settlement were filed by Dennis J. Bellfi, a conference and litigation representative with MSHA. An attorney with the Department of Labor’s Office of the Solicitor has not entered an appearance in this case. Mr. Bellfi has been authorized by the Secretary to “represent the Secretary in all pre-hearing matters in this case, including representing the Secretary at a hearing without an attorney from the Office of the Solicitor present.” (Notice of Unlimited Appearance). This authorization is not binding on the Commission and such representation is not a matter of right. See e.g. Carter Machinery Co. Inc., 40 FMSHRC ___, slip op. at 8-9, No. VA 2017-104 (Jan. 9, 2018) (ALJ); Cyprus Emerald Resources Corp., 16 FMSHRC 2359 (Nov. 1994) (ALJ). Mr. Bellfi has appeared in other cases before me and, based on his experience, I hereby determine he is a competent representative. Consequently, I hereby permit him to represent the Secretary in this case under Commission Procedural Rule 3(b)(4). 29 C.F.R. § 2700.3(b)(4).


Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Seventh Circuit › 2019 › Craftwood II, Inc. v. Generac Power Systems, Inc.
Plaintiffs operate California hardware businesses. They sued under the Telephone Consumer Protection Act, 47 U.S.C. 227, claiming that defendants sent them unsolicited fax advertisements. The district judge dismissed, believing that defendants had substantially met the requirements of a section 227(b)(1)(C) defense and had not established injury. The Seventh Circuit vacated, stating that the district court treated a defense as if it were an element of subject-matter jurisdiction. A plaintiff’s failure on the merits does not divest a federal court of jurisdiction. When subject-matter jurisdiction is at stake, a district judge may resolve factual disputes and make any findings necessary to determine the court’s adjudicatory competence. If the court has jurisdiction, it must take all plausible allegations in favor of the complainant when handling a motion to dismiss. Plaintiffs alleged that they received unsolicited fax ads, causing injury: printing the faxes used costly paper and toner and the need to read the incoming faxes diverted employees' time. These are concrete, not abstract losses. The injuries may have been slight, but an “identifiable trifle” suffices. .Plaintiffs’ injuries may be redressed by an award of damages. Whether it is good public policy to use cumbersome and costly litigation to resolve disputes about annoying fax ads is for Congress to decide. A complaint need not anticipate defenses.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18-2883 CRAFTWOOD II, INC., and CRAFTWOOD III, INC., Plaintiffs-Appellants, v. GENERAC POWER MARKETING, INC., SYSTEMS, INC., and COMPREHENSIVE Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 4105 — Robert W. Gettleman, Judge. ____________________ ARGUED MARCH 27, 2019 — DECIDED APRIL 1, 2019 ____________________ Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. Two corporations, Craftwood II and Craftwood III, operate hardware businesses in California. They contend in this suit under the Telephone Consumer Protection Act, 47 U.S.C. §227, that defendants sent them unsolicited fax advertisements. Defendants moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1), con- 2 No. 18-2883 tending that plainti s lack standing to sue. The district judge granted that motion—not so much because he found the lack of an injury as because he thought that defendants had substantially (though not technically) met the requirements of a defense in §227(b)(1)(C). On appeal defendants contend expressly what is only implicit in the district court’s decision: that unless plainti s prove injury from a violation of law, the suit must be dismissed for lack of a case or controversy. That proposition contradicts the holding of Bell v. Hood, 327 U.S. 678 (1946), among many other decisions showing that a plainti ’s failure on the merits does not divest a federal court of jurisdiction. The di erence between a jurisdictional and a substantive characterization of a defense magers not just because federal courts must raise jurisdiction on their own, even if the litigants are content to have a federal judge resolve the dispute, but because di erent procedures apply to jurisdictional and substantive issues. When subject-mager jurisdiction—which is to say, the power to hear and decide the case at all—is at stake, a district judge may resolve factual disputes and make any ndings necessary to determine the court’s adjudicatory competence. Fed. R. Civ. P. 12(b)(1); Venezuela v. Helmerich & Payne International Drilling Co., 137 S. Ct. 1312, 1316 (2017); McNuE v. General Motors Acceptance Corp., 298 U.S. 178, 184 (1936). If the court has jurisdiction, however, then it must take all plausible allegations in favor of the complainant when handling a motion to dismiss under Rule 12(b)(6) or for judgment on the pleadings under Rule 12(c). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). And if the complaint states a claim for relief, then a material factual dispute will defeat a motion for summary judgment under Rule 56 and entitle the plainti to a trial. See, e.g., Celotex Corp. v. No. 18-2883 3 CatreE, 477 U.S. 317 (1986). By treating a defense as if it were an element of subject-mager jurisdiction, the district court transgressed these allocations of authority. Standing to sue is established by allegations (and, if necessary, proof) of injury, caused by the defendant, and redressable by a favorable judicial decision. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Plainti s allege that they received unsolicited fax ads, causing at least two kinds of injury: printing the faxes used paper and toner, which are costly, and the need to read the incoming faxes diverted the time of one or more employees from the businesses’ pro table endeavors. These are concrete rather than abstract losses. The injuries may have been slight, but an “identi able tri e” su ces. United States v. SCRAP, 412 U.S. 669, 689 & n.14 (1973). Plainti s’ injuries were caused by the defendants’ faxed ads and may be redressed by an award of damages. We have resolved dozens of fax-ad suits on the merits without suspecting that we were violating Article III of the Constitution. This suit is no more constitutionally suspect than they. Whether it is good public policy to use the cumbersome and costly process of adjudication to resolve disputes about annoying fax ads is for Congress to decide. We have thought about the possibility of revising the district court’s decision to be a dismissal on the merits, rather than for lack of standing, but conclude that such a step would be inappropriate, for several reasons. First, it is presumptively unlawful to send any unsolicited fax advertisement. Copies of some faxes are in the record, and there’s no doubt that they are advertisements. Plainti s allege that they were unsolicited. That makes out a plausible 4 No. 18-2883 claim for relief. Defendants invoke an a rmative defense, but complaints need not anticipate or agempt to plead around potential defenses. See, e.g., Gomez v. Toledo, 446 U.S. 635 (1980); United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003). Second, precisely because a complaint need not anticipate defenses, it is di cult to see how the suit could be dismissed on the pleadings. Instead the defense has factual components: the existence of a business relation between plainti and defendant, the recipient’s provision of a fax number as part of that business relation, and the inclusion in the unsolicited fax of “a notice meeting the requirements under paragraph (2)(D)” of §227(b). Defendants assert that the rst two elements have been met but do not contend that the third is satis ed. So they have not so much as argued that the defense obtains as a mager of law. Third, allegations must be supported by evidence. Defendants say, and the district judge found, that “plainti s” have an established business relation with them, and that “plainti s” furnished their fax numbers. For their part, however, plainti s contend that only one of them (Craftwood II) was doing business with only one of the defendants (Comprehensive Marketing). That Craftwood II and Craftwood III are under common control does not make them the same thing—not, at least, unless the requirements for lateral veil piercing have been satis ed. Defendants and the district judge did not address that subject. Nor did defendant Generac show that it has an established business relation with either plainti . Perhaps plainti s are wrong about who was doing business with whom, but it looks like we have the No. 18-2883 5 makings of a material factual dispute, which a district judge could not resolve at the pleading stage. Fourth, there is the problem of the “notice meeting the requirements under paragraph (2)(D)” of §227(b). Defendants’ notice, which is in the record, reads (all errors in the original): The information in this facsimile message is privileged and con dential information, intended for the addressee If you have received this message in error, or if the recipient of this communication does not desire to receive future communications from the sender. The recipientmustnotifythe sender of the same with a return fax to 830-916-0736 or call Toll Free 1-877-325-2526 Beyond the oddity of telling the recipient of an unwanted fax that it “must” do something is the omission of two bits of information that the statute insists be included: that the recipient has a legal right to avoid future fax ads and that the sender must comply with an opt-out request “within the shortest reasonable time” as determined by federal rules (30 days). The district court said, essentially, “no harm no foul”: plainti s used the number in the notice, and the ads stopped coming. That’s yet more fact nding outside the scope of the complaint, and it amounts to a conclusion that the “identi able tri e” of the cost and annoyance of the fax ads already received, plus the opportunity cost of the time needed to stop more faxes from arriving, just can’t support a claim. Perhaps a judge or jury could decide that any award exceeding nominal damages would be inappropriate, but that’s some distance from saying that there has been neither injury nor a violation of law. To the extent that the district judge believed it possible to resolve the suit on the merits in part (the rst two compo- 6 No. 18-2883 nents of the a rmative defense) and then dismiss the rest for want of jurisdiction (because the third component of the defense creates a bare procedural right, of the sort discussed in Spokeo), it was making a fundamental error. Jurisdiction almost always depends on the state of magers when a suit begins. See, e.g., Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426 (1991); Louisville, New Albany & Chicago Ry. v. Louisville Trust Co., 174 U.S. 552, 566 (1899); Mollan v. Torrance, 22 U.S. 537, 539–40 (1824). (We put the possibility of mootness to one side. Whatever it is, this case is not moot.) A court cannot resolve part of a plainti ’s claim on the merits and then say that the residue is outside federal jurisdiction. Johnson v. WaEenbarger, 361 F.3d 991 (7th Cir. 1994). Whether or not there would be standing to complain about the precise wording of the opt-out language when that was the only asserted source of injury—St. Louis Heart Center, Inc. v. Nomax, Inc., 899 F.3d 500 (8th Cir. 2018), gives a negative answer— this suit began as more than that. The district court erred in dismissing the complaint for lack of jurisdiction, and it would not be appropriate to dismiss it under Rule 12(b)(6) or 12(c) either. Perhaps, after discovery (which has yet to occur), the record will show the absence of a material factual dispute. But as things stand plainti s have a plausible grievance. The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.
District court erred in treating a defense as if it were a matter of subject-matter jurisdiction in dismissing a suit under the Telephone Consumer Protection Act.