Information Note on the Court’s case-law No. 178
October 2014
Mamazhonov v. Russia - 17239/13
Judgment 23.10.2014 [Section I]
Article 3
Inhuman treatment
Failure by authorities to take preventive measures against risk of “disappearance” of person at risk of ill-treatment in Uzbekistan: violation
Positive obligations
State’s accountability for “disappearance” of person at risk of ill-treatment in Uzbekistan: no violation
Article 34
Hinder the exercise of the right of petition
Failure to take preventive measures against risk of “disappearance” of person at risk of ill-treatment in Uzbekistan and disregard of interim measure ordered by the Court: violation
Article 46
Article 46-2
Execution of judgment
Individual measures
Measures of a general character
Respondent State required without delay to ensure lawfulness of State action in extradition and expulsion cases and effective protection of potential victims
Facts – In 2008 the applicant fled his native Uzbekistan fearing prosecution for religious extremism and entered Russia. In June 2012 the Russian authorities arrested him and subsequently authorised his extradition to Uzbekistan. During the extradition proceedings the applicant argued that he had been prosecuted for religious extremism and faced a risk of ill-treatment if extradited. His appeals were all dismissed by the Russian courts. However, the extradition order was not enforced because of an interim measure issued by the European Court requiring the Russian Government not to extradite the applicant until further notice. In June 2013 the applicant was released from custody. He disappeared later the same day. A criminal investigation into his disappearance was initiated a week later. The applicant’s current whereabouts and the circumstances surrounding his disappearance remain unknown.
Law – Article 3
(a) Exposure of the applicant to risk of ill-treatment in Uzbekistan – Despite having at their disposal substantial grounds for believing that the applicant faced a real risk of ill-treatment if extradited to Uzbekistan, the domestic authorities had not adequately assessed his claims. Even though undisputedly aware of the interim measure indicated to the Government the Supreme Court had trivialised the applicant’s claim that he risked ill-treatment, giving it passing scrutiny rather than the searching scrutiny interim measures called for. Regard being had to the available material concerning the fate of persons accused of religiously and politically motivated crimes in Uzbekistan, the authorisation of the applicant’s transfer to that country had exposed him to a risk of treatment proscribed by Article 3.
Conclusion: violation (unanimously).
(b) The applicant’s “disappearance”
(i) Obligation to protect the applicant against risk of ill-treatment – The domestic authorities had been well aware both before and after the applicant’s release that he faced a real and immediate risk of forcible transfer to Uzbekistan and exposure to torture and ill-treatment. However, the only measure they had taken in an attempt to avoid that risk was to release him from the detention facility outside normal working hours. Yet releasing a person fearing unlawful and covert action, alone and outside normal working hours, could in fact have been a contributing factor to his disappearance. Moreover, even though the applicant’s lawyer had immediately informed the authorities of his client’s disappearance, they had taken no action for several days. In sum, despite being aware before the applicants’ release of a real and immediate risk of forcible transfer and exposure to torture and ill-treatment, the national authorities had failed to take any measures to protect against the risk.
Conclusion: violation (unanimously).
(ii) Effectiveness of the investigation – The unexplained delay of six days between notification of the disappearance and the start of the preliminary inquiry had resulted in the loss of precious time. Moreover, although the applicant’s lawyer had consistently alleged that the applicant might have been abducted with a view to his being forcibly transferred to Uzbekistan and although the authorities were aware of similar previous incidents, the investigation had refused to consider abduction as a possible reason for his disappearance. Furthermore, no further action was taken after August 2013, even though the investigation had not reached any conclusions. Thus, despite the initial active approach, the subsequent cessation of activities had irreparably undermined the effectiveness of the investigation.
Conclusion: violation (unanimously).
(iii) Whether the authorities were accountable for the applicant’s “disappearance” – The Court could not infer from the lack of adequate preventive measures that the applicant had in fact disappeared. The present case differed from previous cases in which the Court had found State agents’ involvement in forcible removal and concealment operations, as there was no evidence that the applicant had crossed the State border on a regular flight despite border controls or had suddenly and inexplicably disappeared in Russia before almost immediately reappearing in his home country. While it was regrettable that the applicant’s release had been marked by irregularities, there was no evidence credibly proving the involvement of State agents in his disappearance or a failure to act in the face of unlawful removal by others. It was thus not possible to conclude that the Russian authorities had been involved in the applicant’s disappearance.
Conclusion: no violation (unanimously).
Article 34: The Court was alarmed by the domestic authorities’ conduct, which appeared to have followed the same pattern as in similar previous cases: namely, failing to comply with an interim measure indicated under Rule 39 of the Rules of Court in respect of applicants criminally prosecuted in Uzbekistan and Tajikistan. The national authorities had not put in place protective measures capable of preventing the applicant’s disappearance and possible transfer to Uzbekistan, or effectively investigated that possibility, thus disregarding the indicated interim measure.
Conclusion: violation (unanimously).
Article 46
(a) Individual measures – While it was for the Committee of Ministers to supervise the adoption of feasible, timely, adequate and sufficient individual measures, the Court found it indispensable for the respondent State to vigilantly pursue the criminal investigation into the applicant’s disappearance and to take all further measures within its competence in order to put an end to the violations found and make reparations for their consequences.
(b) General measures – In Savriddin Dzhurayev v. Russia the Court stated that decisive general measures capable of resolving the recurrent problem with similar cases had to be adopted without delay, including “further improving domestic remedies in extradition and expulsion cases, ensuring the lawfulness of any State action in this area, effective protection of potential victims in line with the interim measures indicated by the Court and effective investigation into every breach of such measures or similar unlawful acts”. As noted in that case, Ruling no. 11 of 14 June 2012 of the Supreme Court of the Russian Federation remained the tool to be used by domestic authorities to improve domestic remedies in extradition and expulsion cases.
Article 41: EUR 7,500 in respect of non-pecuniary damage.
(See also Savriddin Dzhurayev v. Russia, 71386/10, 25 April 2013, Information Note 162; Kasymakhunov v. Russia, 29604/12, 14 November 2013; Abdulkhakov v. Russia, 14743/11, 2 October 2012, Information Note 156; and Muminov v. Russia, 42502/06, 11 December 2008)
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This summary by the Registry does not bind the Court.
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