THIRD SECTION
DECISION
Application no. 32779/15
M.S.S.
against Russia
The European Court of Human Rights (Third Section), sitting on 28 February 2017 as a Chamber composed of:
Helena Jäderblom, President,
Branko Lubarda,
Luis López Guerra,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 23 June 2015,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the decision grant legal aid to the applicant under Rule 102 § 3 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, M.S.S., is an Uzbek national. He was represented before the Court by Ms I. Sokolova, a lawyer practising in Ivanovo.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background information and extradition proceedings
4. The applicant arrived in Russia in June 2012.
5. On 16 August 2012 he was charged in absentia in Uzbekistan with the unlawful organisation of an extremist religious group. On 24 August 2012 the Yakkasaray District Court in Tashkent ordered his arrest.
6. Between 2012 and 2014 the applicant stayed in Russia lawfully on the basis of his registration as a migrant and a renewable work permit. During that period he did not apply for refugee status or for temporary asylum or for a temporary residence permit.
7. In 2014 the applicant’s family (wife and three children) arrived from Uzbekistan to join him.
8. On 30 June 2014 the applicant was arrested in Russia on the basis of an international search warrant. On the same day the Ministry of the Interior of Uzbekistan informed the Russian authorities that it was intended to seek the applicant’s extradition and requested his detention pending such extradition.
9. On 2 July 2014 the Oktyabrskiy District Court of Ivanovo remanded the applicant in custody pending extradition. On 7 July 2014 the applicant was released on the orders of the Oktyabrskiy District Prosecutor, since under current Russian legislation his criminal prosecution had become time‑barred, thus rendering extradition impossible.
10. It remains unclear whether the Uzbekistani authorities have submitted an official request for the applicant’s extradition.
2. Refugee status proceedings
11. On 8 July 2014 the applicant applied for refugee status in Russia. On 14 October 2014 the Ivanovo Regional Department of the Federal Migration Service (the “Ivanovo Regional FMS”) refused to grant his request, stating that the applicant’s allegation that he would run the risk of ill-treatment in Uzbekistan had not been “objectively confirmed”.
12. On 15 October 2014 the applicant was informed by the Ivanovo Regional FMS that “a person having exhausted all the instances of appeal ... and refusing voluntary departure from Russia within three days of the date of receipt of the [final] decision will be administratively expelled or deported”.
13. On 14 November 2014 the applicant appealed to the Federal Migration Service of the Russian Federation (the “FMS of Russia”) against the refusal to grant refugee status. On 23 December 2014 the appeal was rejected.
14. On 16 March 2015 the Oktyabrskiy District Court of Ivanovo upheld the refusal to grant refugee status.
15. The applicant lodged an appeal, but asked the court to grant him deferral of payment of the court fee (150 Russian roubles (RUB), or approximately 3 euros (EUR)). The court deferred payment until 6 May 2015 and adjourned examination of the appeal. The applicant contested this decision, asking for an extension of the deferral period. His request was dismissed and the appeal was left unexamined, since the court fees remained unpaid.
16. The judgment of 16 March 2015 became final on 27 May 2015.
3. Temporary asylum proceedings
17. On 15 October 2014 the applicant applied for temporary asylum in Russia, referring to the risk of ill-treatment in Uzbekistan. On 15 January 2015 the Ivanovo Regional FMS refused his request.
18. On 5 February 2015 the applicant unsuccessfully lodged an appeal with the FMS of Russia against the refusal.
19. On 20 April 2015 the Oktyabrskiy District Court of Ivanovo upheld the refusal to grant temporary asylum.
20. The applicant again lodged an appeal, but asked the court to grant him deferral of the payment of the court fee (RUB 150, or approximately EUR 3). The court deferred payment until 29 May 2015 and adjourned examination of the appeal. The applicant contested this decision, asking for an extension of the deferral period. His request was dismissed and the appeal was left unexamined, since the court fees remained unpaid.
21. The judgment of 20 April 2015 became final on 22 June 2015.
4. Request for application of interim measures
22. On 6 July 2015 the applicant requested that the Court apply Rule 39 of the Rules of Court to prevent his removal to Uzbekistan. He claimed that he could be deported to Uzbekistan at any moment since the refusals to grant refugee status and temporary asylum had become final, and an appeal against a deportation decision did not have a suspensive effect.
23. On 7 July 2015 the Court granted the applicant’s request and indicated to the Government that the applicant should not be deported or expelled to Uzbekistan for the duration of the proceedings before the Court.
5. Further developments
24. In order to regularise his status in Russia, on 24 August 2015 the applicant applied to the Ivanovo Regional FMS for migration registration, a work permit and a temporary residence permit.
25. In a letter of 25 September 2015 the Ivanovo Regional FMS informed the applicant that he was not entitled to apply for a work permit and a temporary residence permit because his stay in Russia was illegal. It also confirmed that the applicant would not be removed from Russia as long as the interim measures indicated by the Court continued to apply.
26. At the same time, the Ivanovo Regional FMS informed the applicant that he could be put on the migration register for 90 days in order to legalise his stay in Russia and informed him how to go about registration.
27. The applicant has not informed the Court whether he has followed the migration registration procedure.
28. No decision on the applicant’s expulsion or deportation has been taken so far by the Russian authorities.
B. Relevant domestic law and practice
29. A summary of the relevant domestic law, as well as information concerning the human rights situation in Uzbekistan, was provided in the case of Akram Karimov v. Russia (no. 62892/12, §§ 69-111, 28 May 2014).
COMPLAINTS
30. The applicant complained that in the event of his expulsion to Uzbekistan he would be exposed to the risk of ill-treatment proscribed by Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
31. He further complained under Article 13 of the Convention that no effective domestic remedies were available to him in this respect.
THE LAW
32. In their observations of 10 July 2015 the Government submitted that the applicant did not run the risk of an immediate forced transfer to Uzbekistan since his extradition to Uzbekistan was barred by the expiry of the limitation period for criminal prosecution, and no deportation or administrative removal proceedings had been initiated in respect of the applicant in Russia.
33. The Government further contended that the applicant’s failure to legalise his stay in Russia by ordinary means (through obtaining a visa, a temporary residence permit or a residence permit) amounted to non‑exhaustion of the domestic remedies, and a lack of financial resources could not be viewed as a valid justification for not having recourse to those remedies.
34. In their additional comments of 10 November 2015 the Government confirmed their position and stated that they saw no need to assess the applicant’s arguments about the risk of ill-treatment in the event of his forced return to Uzbekistan since no decision warranting such return has been taken.
35. The applicant maintained his complaint and contended that it was only because of the interim measures indicated by the Court that no decision on his deportation or administrative removal had been taken. In support of this statement he relied on the letter from the Ivanovo Regional FMS dated 15 October 2014 (see paragraph 12 above). He also referred to the letter from the Ivanovo Regional FMS of 25 September 2015 (see paragraph 25 above) in response to the Government’s objection regarding non-exhaustion of the domestic remedies.
36. The Court reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, if substantial grounds have been shown for believing that the individual concerned, if deported, will face a real risk of being subjected to treatment contrary to Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008, and Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161).
37. The Court further notes that it is not disputed by the parties that the applicant has been charged with religious and politically motivated crimes in Uzbekistan and therefore belongs to a vulnerable group which runs a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to Uzbekistan (see Mamazhonov v. Russia, no. 17239/13, §§ 139‑41, 23 October 2014).
38. The Court will now examine the Government’s objection that the applicant is not at risk of an immediate forced transfer to Uzbekistan. In this regard the Court notes first and foremost that, as matters now stand, the applicant’s extradition is precluded by the time-barring of his criminal prosecution under current Russian legislation, no other removal proceedings against the applicant are underway, and there is no outstanding expulsion order.
39. In such circumstances it must be considered whether there is any substantial foundation for the applicant’s fears that his expulsion or deportation will take place in the future. Turning to this question the Court observes that the Ivanovo Regional FMS letter (see paragraph 12 above) on which the applicant relies cannot be accepted as evidence of the authorities’ intention to have recourse to those procedures since it is not enforceable in itself. What is more, the Court notes that the Russian authorities took no steps towards the applicant’s removal during the period between 22 June 2015 (the date of a final decision in the temporary asylum proceedings) and 6 July 2015 (the date of indication of an interim measure by the Court) even though nothing prevented them from doing so.
40. The Court furthermore observes that deportation proceedings may only be opened in the event of the applicant’s failure to legalise his stay in Russia. In this regard it is relevant that from 2012 to 2014 the applicant resided in Russia lawfully on the basis of his registration as a migrant and his renewable work permit. In a letter of 25 September 2015 the Ivanovo Regional FMS invited the applicant to renew his migration registration as a first step toward legalising his stay in Russia (see paragraph 26 above). Given that migration registration is a prerequisite to obtaining both a work permit and a temporary residence permit, the Court considers that the actions taken so far by the domestic authorities are not indicative of their intention to have the applicant removed from Russia.
41. In view of the above, the Court is satisfied that the applicant does not run the risk of an immediate forced transfer to Uzbekistan. The applicant’s complaint under Article 3 of the Convention is therefore manifestly ill‑founded.
42. Turning to the applicant’s complaint under Article 13, the Court reiterates that, according to its constant case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). It follows that since the applicant has no arguable claim under Article 3 of the Convention, his complaint under Article 13 is likewise inadmissible.
43. The applicant’s complaints under Articles 3 and 13 of the Convention must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
44. Taking into consideration the above findings, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
45. The above findings do not prevent the applicant from lodging a new application before the Court in the future and making use of the available procedures ‒ including the one under Rule 39 of the Rules of Court ‒ in respect of any new circumstances.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 March 2017.
Stephen PhillipsHelena Jäderblom
RegistrarPresident
Full & Egal Universal Law Academy