Published on 7 June 2021
THIRD SECTION
Application no. 29958/20
A.Y. against Russia
and 2 other applications
(see list appended)
communicated on 18 May 2021
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.
The circumstances of the applicants’ cases
In 2015 and 2017 the Tajikistani authorities charged A.Y. and F.K. with crime of political extremism. S.P. was charged with crime of religious extremism in 2016 in Uzbekistan. The pre-trial detention of the applicants was ordered in absentia, and international search warrants were issued by the national authorities of Tajikistan and Uzbekistan. The applicants were detained in Russia pending their extradition.
The Russian authorities subsequently ordered administrative expulsion of A.K. and F.K. to Tajikistan and S.P. to Uzbekistan (see the Appendix for details).
On 21 September 2018 the Court granted S.P.’s request under Rule 39 in his application no. 44546/18 which had been pending before the Court at that time. On 21 July and 25 September 2020, respectively, A.Y.’s and F.K.’s requests for the application of an interim under Rule 39 of the Rules of Court were granted (see the Appendix for details). It was indicated to the Russian Government that S.P. should not be removed to Uzbekistan and A.Y. and F.K. to Tajikistan for the duration of the proceedings before the Court.Application of A.Y. (no. 29958/20)
The applicant alleges that on 21 July 2020, the day of his administrative expulsion, his lawyer informed all concerned state bodies that the Court had applied an interim measure preventing his removal to Tajikistan. The officers who carried out the order for expulsion of the applicant informed the lawyer that they would not suspend enforcement in the absence of the official notification from the Ministry of Justice. At around 9 p.m. on that day the applicant was put on Ural Airlines flight U68445 at Zhukovskiy International Airport in Moscow and expelled to Tajikistan. According to him, he was forced to board the flight and some unidentified officers twisted his arms and used a stun gun on him to overcome his resistance.Application of S.P. (no. 39703/20)
The applicant alleges that the extradition check in his case lasted for about two and a half years (between February 2018 and May 2020). On 23 March 2018 the Taganskiy inter-district prosecutor ruled that additional information was needed from the Uzbekistani authorities before the decision on the applicant’s extradition could be taken. On 24 May 2019 the Uzbekistani authorities requested the Interior Ministry of Kursk Region to arrest the applicant, without submitting any new additional material in respect of him. When the Oktyabrskiy District Court of Kursk and the Kursk Regional Court ordered his detention in May 2019 (and later extended the term of his detention pending extradition), they noted that the extradition check in respect of the applicant had not at the time been completed owing to the absence of necessary documents. No reference was made by the courts to any new information or documents from either Russian or Uzbekistani authorities in respect of the applicant. The courts also stated, without providing details, that “it had not been established that the extradition check could not be completed due to the prosecutor’s ineffective organisation of execution of the extradition request”.Application of F.K. (no. 41820/20)
On 20 September 2020, the applicant was arrested in Ivangorod in Kingisepp District of Leningrad, pursuant to an international search warrant. On 22 September 2020 he was convoyed to the Kingisepp Town Court of Leningrad Region for hearing on his expulsion.
According to the applicant, on that day the Kingisepp Town Court of Leningrad Region ordered his administrative expulsion from Russia but did not order his detention pending expulsion and the order for his administrative expulsion did not become final. Nevertheless, he was detained immediately after the hearing allegedly by three officers of the Federal Security Service (“FSB”) dressed in plain clothes and taken to Pulkovo Airport in Saint Petersburg from where he was flown to Domodedovo Airport in Moscow and then he was removed from Russia on a military aircraft while escorted by those three officers. The applicant alleges that he did not have his passport because it was taken from him by police on 20 September 2020 and it was not returned to him.
The applicant’s lawyer requested information concerning the applicant’s administrative expulsion from the state bodies and the Somon Air airline of Tajikistan. In reply to the applicant’s lawyer’s requests about the applicant’s alleged detention on 22 September 2020, the department of the FSB in Saint-Petersburg and Leningrad Region and the Department of the Interior Ministry in Kingisepp stated that their officers had not detained the applicant after the hearing on 22 September 2020. The police units at Pulkovo and Domodedovo airports provided no relevant information to the applicant’s lawyer in respect of the applicant’s being removed and/or his crossing of the border. The Somon Air airline replied to the lawyer that they had been authorised to disclose only to Tajikistani authorities information about who had bought a ticket for the applicant and on the basis of which document. The Federal Bailiff Service for Leningrad Region informed the applicant’s lawyer that they had not been assigned to enforce the order for administrative expulsion of the applicant and that they had not had any information about his whereabouts. According to the applicant’s lawyer, no investigation was initiated into the alleged abduction of the applicant.
According to the applicant’s further submissions, when he arrived in Tajikistan, he was handed over to the officers from organised crime unit of the police and in the course of two days he was beaten and tortured by electrocution and waterboarding. On 25 September 2020 his wife visited him in custody. According to her, the applicant had signs of beatings, he was bleeding and could hardly stand. He had confirmed to his wife that he had been returned to Tajikistan against his will and had requested that his lawyers continue representing him. On 27 November 2020 the preliminary investigation in the applicant’s criminal case in Tajikistan was completed, a bill of indictment was drawn up and the case was referred to a prosecutor for approval and submission to a relevant court.
On 4 January 2021 he was convicted by the court in Tajikistan and sentenced to seven years in prison.
COMPLAINTs
A.Y. (application no. 29958/20) complains under Article 3 of the Convention that his administrative expulsion to Tajikistan exposed him to a real risk of torture and/or inhuman or degrading treatment. He also complains under Article 13 that he did not have an effective domestic remedy in respect of their complaint under Article 3. A.Y. further complains that his expulsion to Tajikistan has been in breach of the interim measures indicated by the Court under Rule 39 of the Rules of Court and that the Russian authorities have failed to comply with their obligation under Article 34 of the Convention.
S.P. (application no. 39703/20) complains under Article 5 § 1 (f) of the Convention that his detention pending extradition between 27 May 2019 and 26 May 2020 was unlawful and arbitrary because the extradition proceedings, which were initiated in February 2018, were not conducted with due diligence and were tainted with unjustified delays and that the real purpose of his detention pending extradition was to keep him as long as possible in custody.
F.K. (application no. 41820/20) complains under Article 3 that the Russian authorities were allegedly involved in his detention, abduction and transfer to Tajikistan and that no investigation into that incident took place. He further contends under Article 3 that the national authorities failed to consider his claims that he risked ill‑treatment in the event of his removal to Tajikistan and that by ordering his administrative expulsion and allegedly transferring him to Tajikistan, the Russian authorities exposed him to a real risk of torture and/or inhuman or degrading treatment. He further complains under Article 13 that he had no effective domestic remedies in respect of his complaints under Article 3. Lastly, he complains that his alleged detention immediately after the expulsion hearing on 22 September 2020 was in breach of Article 5 § 1 (f) of the Convention.
QUESTIONS TO THE PARTIES
Application no. 29958/20 (A.Y. v. Russia)
1. Did the Russian authorities expose A.Y. to a real risk of being subjected to treatment in breach of Article 3 of the Convention by carrying out his administrative expulsion to Tajikistan? In the domestic proceedings, did the competent national authorities assess adequately A.Y.’s claim that he would be exposed to a risk of being subjected to torture or to inhuman and/or degrading treatment if removed to Tajikistan?
2. Did A.Y. have at his disposal an effective administrative or judicial domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention? Did this remedy afford for the due consideration of A.Y.’s complaint? Did it provide for an automatic suspensive effect in respect of the A.Y.’s administrative expulsion to Tajikistan?
3. Was A.Y.’s administrative expulsion to Tajikistan on 21 July 2020 in breach of an interim measure indicated by the Court? Has there been accordingly a hindrance by the State of the effective exercise of the applicant’s right of application enshrined in Article 34 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 128-29, ECHR 2005‑I)?
Application no. 39703/20 (S.P. v. Russia)
Was S.P.’s detention pending extradition compatible with the requirements of Article 5 § 1 (f) of the Convention (see Azimov v. Russia, no. 67474/11, § 164, 18 April 2013 and Oshlakov v. Russia, no. 56662/09, § 115, 3 April 2014)?
Application no. 41820/20 (F.K. v. Russia)
1. Was F.K. taken into custody by State officials immediately after hearing for his administrative expulsion in the Kingisepp Town Court of Leningrad Region on 22 September 2020? If yes, who (official titles) carried out the applicant’s apprehension / arrest after the expulsion hearing on 22 September 2020, on what ground(s) and did this/these person(s) take the applicant to Pulkovo Airport in Saint-Petersburg and then to Domodedovo Airport in Moscow to enforce the order of his expulsion?
The Government are invited to provide relevant documents in connection with the applicant’s alleged apprehension / arrest and transfer to the airports on 22 September 2020.
2. In the light of the applicant’s claims and the documents which have been submitted, was the administrative expulsion of the applicant to Tajikistan carried out on 22 September 2020, pursuant to the judgment of the Kingisepp Town Court of Leningrad Region, or was he otherwise involuntarily transferred from Russia to Tajikistan on that day? Was he exposed to a risk of being subjected to treatment in breach of Article 3 of the Convention in Tajikistan? Before deciding on his administrative expulsion, did the relevant authorities duly consider the applicant’s claim that he would be exposed to a real risk of being subjected to ill-treatment if returned to Tajikistan? In particular, did the domestic courts comply with their obligation to carry out an independent and rigorous scrutiny of the applicant’s claim that there existed substantial grounds for fearing such a risk, as required by Article 3 of the Convention (see De Souza Ribeiro v. France [GC], no. 22689/07, § 82, 13 December 2012)?
3. In view of the information concerning the applicant’s alleged abduction and transfer to Tajikistan, what measures did the authorities take to protect the applicant against his conceivable involuntary removal from Russia? Did the authorities comply with their positive obligation to take preventative operational measures to protect him from the imminent threat of transfer to Tajikistan and the ensuing risk of torture and ill-treatment in that country in violation of Article 3? Was the applicant’s alleged abduction and transfer followed by a thorough and effective investigation capable of leading to identification and punishment of those responsible, as required by Article 3? Has the investigation allowed elucidating the crucial aspects of his alleged abduction and transfer?
The Government are requested to provide the results of such investigations and the entire copy of the related criminal or administrative investigation files.
4. Did F.K. have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?
5. If the applicant was taken into custody on 22 September 2020 by State officials, was his apprehension / arrest / detention on that day compatible with Article 5 § 1 (f) of the Convention?
APPENDIX
No.
Application no.
Lodged on
Applicant’s initials or name
Date of birth
Nationality
Place of residence
Represented by
Detention
Removal proceedings
Temporary asylum /
Refugee status proceedings
Other relevant information
29958/20*
21/07/2020
A.Y.
08/01/1989
Tajikistan
Tajikistan
Daria TRENINA
Kirill ZHARINOV
Eleonora DAVIDYAN
Detention pending extradition
2 March 2015 arrested in Moscow;
8 June 2016 – released, owing to having received a temporary asylum status;
15 June 2018 arrested pursuant to an international search warrant;
19 June 2018 – released with reference to the decision of 8 June 2016.
Detention pending administrative expulsion
19 June 2018 – arrested for breaching immigration regulations.
20 June 2018-21 July 2020 (two years and one month)
20 June 2018 – detention ordered by the Meshchanskiy District Court of Moscow;
21 July 2020 – expelled to Tajikistan.
Extradition proceedings
12 and 15 January 2015, respectively, charged with a crime of political extremism and arrested in absentia by the Tajikistani authorities.
Administrative expulsion proceedings
20 June 2018 the Meshchanskiy District Court of Moscow found the applicant guilty of breaching migration regulations and ordered his detention pending expulsion.
16 July 2018 the Moscow City Court upheld the order for expulsion of the applicant. Removal not carried out, owing to bailiff’s ban of 13 March 2018 on the applicant’s leaving the country owing to unpaid fines. The ban was subsequently extended.
17 February 2020 the ban on leave was lifted by mistake.
24 March 2020 the Meshchanskiy District Court of Moscow refused to terminate the expulsion proceedings and to release the applicant.
14 May 2020 – the Moscow City Court upheld that decision.
Temporary asylum proceedings
26 February 2016 – refused temporary asylum by the Moscow Region Federal Migration Service (“FMS”);
3 June 2016 – granted temporary asylum by the Moscow Region FMS for six months;
31 January 2019 - the Moscow FMS refused his new request for temporary asylum;
21 March 2019 - the Russia FMS upheld the refusal of temporary asylum;
27 February 2020 - the FMS Moscow refused his new request for temporary asylum;
13 July 2020 the Zamoskvoretskiy District Court dismissed the applicant’s appeal against the refusal to grant him temporary asylum; appeal filed.
Refugee proceedings
5 December 2019 – allegedly not allowed by the Interior Ministry of Moscow (“MVD”) migration service to apply for refugee status; allowed to use only a temporary asylum procedure;
11 June 2020 the Zamoskvoretskiy District Court rejected the applicant’s complaint against the Moscow MVD migration service’s refusal to be allowed to apply for refugee status; appeal filed.
Interim measure under Rule 39 of the Rules of the Court
21 July 2020 - the Court granted the applicant’s request under Rule 39 and indicated to the Russian Government not to remove the applicant to Tajikistan for the duration of the proceedings before the Court.
39703/20
03/09/2020
S.P.
12/04/1988
Uzbekistan
Moscow
Daria TRENINA
Kirill ZHARINOV
Eleonora DAVIDYAN
Detention pending deportation
28 September 2018 – the Oktyabrskiy District Court ordered the applicant’s detention; the term of detention was later extended.
27 May 2019 – released, as the Oktyabrskiy District Court of Kursk refused to extend the term of his detention pending deportation.
Detention pending extradition
27 May 2019 – arrested pursuant to a search warrant and extradition request from Uzbek authorities;
28 May 2019 the Oktyabrskiy District Court of Kursk ordered detention (further extended four times, until 26 June 2020);
26 May 2020 – released from detention on remand, owing to expiry of one-year maximum term of detention pending examination of the extradition request. He was informed that the extradition request had been approved by the Russian Deputy Prosecutor General.
Extradition proceedings
18 and 19 March 2016, respectively, international search warrant was issued in the applicant’s name and the applicant was arrested in absentia by the Uzbekistani authorities for being suspected of committing a crime of religious extremism.
8 February 2018 - extradition request was submitted by the Uzbekistani authorities;
23 March 2018 – the Taganskiy Inter-District prosecutor found that the information submitted by the authorities of Uzbekistan had been insufficient to establish that the acts that the applicant had been charged with had been criminal under Russian law.
“Undesirable” presence decisions
21 and 31 August 2018 – decision that the presence of the applicant is “undesirable” issued, respectively, by the MVD and Ministry of Justice, owing to the applicant’s criminal conviction in Russia and charges of religious extremism pending against him in Uzbekistan;
11 September 2018 – deportation order issued by the MVD;
2 November 2018 – the Leninskiy District Court of Kursk refused his complaint against the above decisions;
30 January 2019 the Kursk Regional Court refused the appeal;
24 May 2019 the Uzbekistani authorities requested the applicant’s arrest from the Kursk Region MVD in connection with criminal charges pending against him in Uzbekistan.
Extradition proceedings
29 July 2020 – the Kursk Regional Court approved the order for extradition of the applicant.
23 November 2020 – First Court of Appeal of General Jurisdiction remitted the applicant’s case for a fresh examination. Prosecutor appealed against that decision.
18 March 2021 - First Cassation Court of General Jurisdiction in Saratov granted the Prosecutor’s appeal and remitted the case for re-examination by the 1st Court of Appeal of General Jurisdiction.
14 April 2021 – First Court of Appeal of General Jurisdiction upheld the Prosecutor’s order of extradition.
Refugee status proceedings
20 September 2018 requested refugee status;
The applicant asserted that his application of 20 September 2018 for refugee status had been substituted by an application for temporary asylum, a procedure providing less protection.
Temporary asylum proceedings
25 October 2018 – applied (according to the text of the decision);
7 December 2018 – the MVD Kursk declined to examine his request; no appeal brought, as, according to the applicant, he had not been informed of this dismissal.
Criminal proceedings in Russia
2 October 2017 the Taganskiy District Court of Moscow found the applicant guilty of organising illegal mass migration; sentenced to two years’ imprisonment.
28 September 2018 released from the colony and immediately placed in the Sakharovo detention centre, pending deportation.
20 September 2018 – provisional measure taken by the Leninskiy District Court of Kursk pending examination of the complaint against decisions of the MVD and Ministry of Justice and deportation order
Interim measure under Rule 39 of the Rules of the Court
21 September 2018 – interim measure applied by the Court in the applicant’s case no. 44546/18 (S.P. v. Russia) indicating that the applicant should not be removed to Uzbekistan for the duration of the proceedings before the Court.
41820/20
23/09/2020
F.K.
16/03/1975
Tajikistan
Dushanbe
Daria TRENINA
Kirill ZHARINOV
Eleonora DAVIDYAN
Detention pending extradition
20 January 2018 – 18 July 2018 (released on his own recognisance and undertaking proper conduct).
Alleged detention pending administrative expulsion
22 September 2020 at 3 p.m. – allegedly apprehended after the court hearing allegedly by FSB officers dressed in plain clothes who took him to the airport for removal at 11:50 p.m. on that day.
Extradition proceedings
21 January 2018 the Frunzenskiy District Court of Saint Petersburg ordered the applicant’s detention pending extradition check. No information about the progress or outcome of those proceedings made available to the applicant.
Administrative expulsion proceedings
22 September 2020 the Kingisepp Town Court of the Leningrad Region found the applicant guilty of breaching immigration regulations, fined him and ordered his forced administrative expulsion (order for detention pending expulsion not issued).
20 October 2020 the Leningrad Regional Court confirmed the order for expulsion of the applicant.
Temporary asylum proceedings
3 October 2019 – the Moscow MVD refused the applicant’s request for temporary asylum;
27 November 2019 – the decision upheld by the MVD of Russia;
15 October 2020 - the Basmannyy District Court of Moscow upheld the refusal of temporary asylum, referring to the position of the FSB that granting asylum to the applicant would not be “appropriate”;
The proceedings in the Moscow City Court are pending.
Refugee status proceedings
10 October 2018 the Saint-Petersburg MVD refused the applicant’s request of refugee status;
19 November 2018 – that decision was upheld by the MVD of Russia;
13 March 2019 – the Basmannyy District Court of Moscow upheld the decision;
18 November 2019 – the Moscow City Court confirmed the above decisions.
Interim measure under Rule 39 of the Rules of the Court
25 September 2020 – the Court applied interim measure preventing the applicant’s removal to Tajikistan.
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