Communicated on 25 April 2019
THIRD SECTION
Application nos. 38042/18 and 44546/18
A.K. against Russia
and S.P. against Russia
lodged on 10 August 2018 and on 20 September 2018 respectively
STATEMENT OF FACTS
The applicants’ personal details and the information concerning their applications, the particulars of the domestic proceedings and other relevant information are set out in the Appendix.
In 2016 the Uzbek authorities charged applicant S.P. (application no. 44546/18) with religious and politically motivated crimes. In 2017 they charged applicant A.K. (application no. 38042/18) with unlawful border crossing to Uzbekistan and with religious crimes. The pre-trial detention of the applicants was ordered in absentia, and international search warrants were issued by the national authorities of Uzbekistan. The applicants were detained in Russia pending their extradition.
The Russian authorities subsequently took final decisions to remove the applicants for breach of migration rules (in the case of A.K.) and following decision that the applicant’s presence was undesirable in Russia (in the case of S.P.), despite the applicants’ consistent claims that in the event of their removal they would face a real risk of treatment contrary to Article 3 of the Convention.
On 21 August and 20 September 2018, respectively, the applicants’ requests for the application of an interim measure under Rule 39 of the Rules of Court were granted. It was indicated to the Russian Government that the applicants should not be removed to Uzbekistan for the duration of the proceedings before the Court. The applicants’ cases were also granted priority (under Rule 41) and confidentiality (under Rule 33), and the applicants were granted anonymity (under Rule 47 § 4).
On 11 February 2019 the interim measure in respect of one of the applicants (application no. 38042/18) was lifted at the request of the applicant which he submitted himself and through his lawyer.
COMPLAINTS
The applicants complain under Article 3 of the Convention that they would face a real risk of being subjected to treatment in breach of Article 3 of the Convention in the event of their removal to Uzbekistan.
The applicant A.K. (application no. 38042/18) complains that the conditions of detention in SIZO 77/4 in Moscow between 10 August 2017 and 2 August 2018 and in centre for detention of foreigners (CUVSIG) in the Sakharovo village between 3 August 2018 and at least 11 February 2018 and/or currently, have been inhuman and degrading, in breach of Article 3 of the Convention.
He further complains that he did not an effective domestic remedy in respect of his complaint concerning the poor conditions of detention, in breach of Article 13 of the Convention.
He also complains, in substance under Article 5 §§ 1 (f) and 4 of the Convention, about the lack of grounds for his detention pending administrative removal and that there had been no effective procedure by which he could have challenged his continued detention.
QUESTIONS to the parties
Would the applicants face a real risk of being subjected to treatment in breach of Article 3 of the Convention in the event of their removal to Uzbekistan?
CASE SPECIFIC QUESTIONS
Application 38042/18 (A.K. v. Russia)
1. Did the material conditions of the applicant’s detention, in particular, the personal space available in the cells, lack of privacy during use of toilet and other conditions in
- SIZO 74/4 Moscow between 10 August 2017 and 2 August 2018 and
- the centre for detention of foreigners in Sakharovo (CUVSIG Sakharovo) between 4 August 2018 and at least 11 February 2019 and/or currently amount to inhuman or degrading treatment, in breach of Article 3 of the Convention?
2. Did the applicant have at his disposal an effective domestic remedy in respect of his complaint concerning poor conditions of detention, as provided for by Article 13?
3. Having regard to the Court’s conclusion in the case of Azimov v. Russia (Azimov v. Russia, no. 67474/11, 18 April 2013), was the applicant’s detention pending administrative removal compatible with the requirements of Article 5 §§ 1 (f) and 4 of the Convention?
APPENDIX
No.
Application no./
Lodged on/
Applicant/
Date of birth/
Nationality/
Represented by
Detention
Removal proceedings
Refugee status/Temporary asylum proceedings
Other relevant information
38042/18
10/08/2018
A.K.
13/07/1979
Uzbekistan
Roza Saidovna MAGOMEDOVA
Detention pending extradition
8 August 2017 - detained and detention ordered, with multiple extensions, until 7 August 2018, pending examination of the extradition request; detained between
10 August 2017 and 2 August 2018 in SIZO 77/4, review done 5 times by the first-instance court and 4 times by the appeal court).
Detention pending expulsion
3 August 2018 - currently - center for detention of foreingers in Sakharovo (CUVSIG Sakharovo)
Expulsion proceedings
3 August 2018 the Babushkinskiy District Court of Moscow – administrative removal ordered for breach of migration regulations;
30 August 2018 - the Moscow City Court suspended the removal owing to the application of the interim measure by the Court on 21 August 2018; detention to be continued.
Temporary asylum proceedings
13 October and 20 November 2017 - refusal to grant temporary asylum by migration authorities
2 March 2018 - the Basmanny District Court of Moscow – refusal upheld;
4 July 2018 - the Moscow City Court refusal upheld;
10 August 2018 - applied for temporary asylum by post from CUVSIG, no reply received.
12 November 2018 the Moscow City Court held that their inaction in respect of the applicant’s request was unlawful.
Refugee status proceedings
4 June 2018 - the Zamoskvoretskiy District Court refused the applicant’s complaint against the inaction of the migration authorities concerning his application for refugee status;
12 November 2018 - the Moscow City Court on appeal ordered the migration authority to examine the applicant’s request for refugee status of 10 December 2017.
21 August 2018 – interim measure applied for the duration of the proceeding before the Court.
11 February 2019 – the interim measure lifted at the request of the applicant submitted through his lawyer. In particular, the applicant submitted,
“...I refuse the application of the interim measure under Rule 39. My wife and two infant children are currently in Uzbekistan. My wife is gravely ill and my children live with the relatives. At the moment my main concern is the lives of my children. I do not wish to withdraw my complaint. I have been in the detention centre for more than six months with no judicial supervision. My complaint in the Moscow City Court has not yet been examined. I may have to stay here for more than two years owing to the application of Rule 39. I wanted to go back to my motherland to see my children...”
Conditions of detention (as per the applicant’s submissions):
In SIZO 77/4 Moscow
Between 10 August 2017 and 2 August 2018 (11 months and 22 days):
Cell No. 812: 30 sqm, 8 sleeping bunks, not less than 12 detainees at a time; lack of individual sleeping place, toilet partition 1,5 m high; lack of natural light; second-hand smoking; low room temperature; lack of fresh air; no access to drinking water; food of low quality; insufficient time outdoors; one 15–minute shower; lack of facilities for drying clothes; lack of personal hygiene items; poor quality of bed linens; infestation of cell with insects and rodents.
In the centre for detention of foreigners (CUVSIG, 64 km Varshavskoye shosse, the Voronovskoye District, the Sakharovo village, Moscow)
between 3 August 2018 and currently (at least 6 months):
Cell no. 249 (4 – 15 August 2018): 30 sqm; 10 persons;
Cell no. 204 (15 August – 6 September 2018): 8 sqm; 4 persons; toilet partition 1,2 m high; no hot water; limited drinking water; window bars; shower once a week
44546/18
20/09/2018
S.P.
12/04/1988
Uzbekistan
Kirill ZHARINOV
Detention pending expulsion
detained in CUVSIG - from 28 September 2018 – currently.
Deportation proceedings
21 and 31 August 2018 – decisions issued that the presence is undesirable by the Ministry of Interior and Ministry of Justice, respectively.
11 September 2018 - deportation order issued by the Ministry of Interior
20 September 2018 - provisionary measure taken by the Leninskiy District Court of Kursk while complaint against deportation is pending.
20 September 2018 - appealed decision of undesirable presence and deportation order;
2 November 2018 the Leninskiy District Court of Kursk refused his complaint;
30 January 2019 the Kursk Regional Court dismissed the appeal (as of March 2019, no motivated judgment sent to the Court by the applicant).
Refugee status proceedings
20 September 2018 applied for asylum, no interview, no certificate issued.
No interview as of 22 November 2018.
24 September 2018 - interim measure applied for the duration of the proceedings before the Court.
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