Abdulkhakov v. Russia

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 156

October 2012

Abdulkhakov v. Russia - 14743/11

Judgment 2.10.2012 [Section I]

Article 3

Degrading treatment

Inhuman treatment

Expulsion

Secret transfer of person at risk of ill-treatment in Uzbekistan to third-party State where he was beyond the protection of the Convention: violation

Article 34

Hinder the exercise of the right of petition

Secret transfer of person at risk of ill-treatment in Uzbekistan and in respect of whom a Rule 39 measure was in force to third-party State where he was beyond the protection of the Convention: violation

Facts – The applicant left his native Uzbekistan in August 2009 after being fined for participating in unlawful religious activities. He travelled to Moscow where the Russian authorities arrested and detained him on the grounds that he was wanted in Uzbekistan for involvement in extremist activities. He applied for refugee status in Russia but this was refused and an order was made for his extradition to Uzbekistan. His appeal against that order was rejected by the Supreme Court on 14 March 2011, on the grounds that diplomatic assurances given by the Uzbek authorities to the effect that he would not be subjected to torture or ill-treatment were sufficient to assure his protection. The extradition order was not enforced, however, because of an interim measure issued by the European Court requiring the Russian Government not to extradite him to Uzbekistan till further notice and in June 2011 he was released as the maximum period allowed for his detention under Russian law had expired. On 23 August 2011 the applicant was abducted by a group of men in plain clothes in the centre of Moscow. He says that he was then taken to the airport and flown to Tajikistan, where he was handed over to the Tajik police and detained with a view to his extradition to Uzbekistan. He was released in November 2011 and went into hiding in Tajikistan.

Law – As regards the facts, the Court found it established that the applicant had been kidnapped and transferred against his will into the custody of the Tajik authorities, with the knowledge and either passive or active involvement of the Russian authorities. The Government had not advanced any convincing explanation for his presence in Tajikistan. In particular, they had not explained how he could have crossed the border without his passport, which had been retained by the Russian migration authorities.

Article 3

(a) Extradition to Uzbekistan – The Court had found in a number of previous cases that ill-treatment of detainees was widespread in Uzbekistan and that the practice of torture against those in police custody was “systematic” and “indiscriminate”. People such as the applicant who were accused of criminal offences in relation to their involvement with prohibited religious organisations in Uzbekistan were at increased risk. Although the applicant’s situation had been brought to their attention in the refugee status proceedings, the Russian authorities had refused to examine the relevant international reports and had instead attached great importance to the diplomatic assurances provided by the Uzbek authorities. However, the Court had previously warned against reliance on diplomatic assurances against torture from States where torture was endemic or persistent and, in any event, the assurances provided by the Uzbek authorities had been phrased in general stereotyped terms and had not provided for any monitoring mechanism. The applicant faced a serious risk of being subjected to torture or inhuman or degrading treatment in Uzbekistan and his extradition there, in the event of his return to Russia, would give rise to a violation of Article 3.

Conclusion: extradition would constitute a violation (unanimously).

(b) Removal to Tajikistan – The applicant’s transfer to Tajikistan, which was not a party to the Convention, had removed him from the protection guaranteed by the Convention. In such circumstances, the Russian authorities should have reviewed Tajikistan’s legislation and practice relating to the evaluation of the risks of ill-treatment faced by asylum seekers with particular scrutiny. However, there was no evidence that, before removing him to Tajikistan, the Russian authorities had made any assessment of whether there existed legal guarantees against the removal of people facing a risk of ill-treatment and how the Tajik authorities applied them in practice. It was particularly striking that the applicant’s transfer to Tajikistan had been carried out in secret and outside any legal framework capable of providing safeguards against his removal to Uzbekistan without an evaluation of the risks of his ill-treatment there. Any extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, was contrary to the rule of law and the values protected by the Convention.

Conclusion: violation (unanimously).

Article 34: The applicant had been transferred to Tajikistan five months after the Court had indicated to the Russian Government, under Rule 39 of the Rules of Court, that he should not be extradited to Uzbekistan until further notice. Although he had not been transferred to Uzbekistan, his removal to a State which was not a party to the Convention had prevented the Court from securing the applicant the benefit of the Convention rights on which he relied and the purpose of the interim measure – to maintain the status quo pending the Court’s examination of the application and to allow its final judgment to be effectively enforced – had been frustrated.

Conclusion: failure to comply with Article 34 (unanimously).

The Court further found a violation of Article 5 § 1 in respect of the applicant’s detention in Russia during an initial period before a valid court order was made, but no violation of that provision in respect of his further detention pending extradition until his release in June 2011. It also found two violations of Article 5 § 4 on account of the length of the proceedings concerning the applicant’s appeals against two of the detention orders and on account of his inability to obtain a review of his detention.

Article 41: EUR 30,000 in respect of non-pecuniary damage.

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