Communicated on 15 September 2015
FIRST SECTION
Application no. 11673/15
Abdusami Abdusamatovich RAKHMONOV
against Russia
lodged on 6 March 2015
STATEMENT OF FACTS
1. The applicant, Mr Abdusami Abdusamatovich Rakhmonov, is an Uzbek national, who was born in 1974 and lives in Moscow. He is represented before the Court by Ms R. Magomedova, a lawyers practising in Moscow.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. According to the applicant, on 19 July 2010 he arrived in Moscow from Uzbekistan with a view to finding a seasonal job and marrying. He soon learnt that his brothers had been arrested and charged with participation in an extremist religious organisation. He also learnt that he was suspected by the Uzbekistani authorities of having founded an extremist religious organisation himself.
1. Extradition and expulsion proceedings in 2010 - 2011
4. On 16 September 2010 the Bukhara Town Court of the Republic of Uzbekistan ordered the applicant’s arrest pending the criminal investigation against him on the charges of anti-state activities, founding an extremist religious organization and distribution of materials threatening the public order.
5. On 3 February 2011 the applicant was arrested at the Moscow Division’s office of the Federal Migration Service (the FMS) where he had gone to receive the copy of a decision in his case. The Moscow police informed the Uzbek authorities of the applicant’s arrest and on the same day received a copy of the above arrest order and documents confirming that the applicant had been put on the wanted persons’ list.
6. On 4 February 2011 the Izmailovskiy District Court of Moscow authorized the applicant’s detention pending extradition.
7. On 11 March 2011 the General Prosecutor’s Office of the Republic of Uzbekistan requested the applicant’s extradition.
8. On 3 August 2011 the applicant was released from detention.
9. On 5 August 2011 the Izmaylovskiy District Court of Moscow found the applicant’s stay in Russia to be in contravention of the Russian Administrative Code and ordered his detention and expulsion. The applicant appealed.
10. On 17 August 2011 the General Prosecutor’s Office of the Russian Federation refused to extradite the applicant to Uzbekistan and removed his name from the wanted persons’ list. The decision stated that the applicant’s actions mentioned in the extradition request are not criminally punishable in Russia.
11. On 14 September 2011 the Moscow City Court annulled the decision of 5 August 2011 and ordered the applicant’s release.
2. Application for refugee status
12. On 18 October 2010 the applicant lodged a request with the Moscow Division of the FMS seeking asylum in Russia. On 21 January 2011 his request for refugee status was denied.
13. The applicant appealed against that decision alleging that since 2001 he was making certain critical statements regarding the authorities of Uzbekistan and that his criminal prosecution is politically motivated.
14. On 14 April 2011 the FMS of Russia annulled the decision of 21 January 2011 and remitted the matter for fresh consideration to its division in Moscow.
15. On 6 July 2011 the Moscow Division of the FMS refused by a de novo decision to grant the applicant refugee status stating that the sole reason for the request is fear of lawful prosecution for the crimes he was accused of. The applicant appealed.
16. On 25 November 2011 the FMS of Russia upheld the Moscow Division’s decision. The applicant appealed to court.
17. On 22 February 2012 the Basmanniy District Court of Moscow denied the applicant’s appeal stating that he had failed to convincingly demonstrate the existence of any grounds for granting refugee status.
3. Judgment of the Court in the case Rakhmonov v. Russia, no. 50031/11, 16 October 2012
18. On 10 August 2011 the applicant lodged an application no. 55031/11 with the Court and requested an interim measure seeking to stay his removal to Uzbekistan. The interim measure under Rule 39 of the Rules of Court was granted on 11 August 2011 with the view of both extradition and expulsion proceedings pending against the applicant.
19. On 16 October 2012 the Court adopted the judgment in the applicant’s case and found violations of Article 5 §§ 1 and 4 of the Convention regarding detention pending extradition. In respect of Article 3 of the Convention the Court, having regard to the General Prosecutor’s Office decision refusing to extradite the applicant to Uzbekistan, concluded that the applicant was no longer subjected to the risk of removal to Uzbekistan and, accordingly, was no longer at risk of ill-treatment. The complaint was dismissed as manifestly ill-founded and the interim measure was lifted.
20. On 18 September 2013 the Supreme Court of the Russian Federation having regard to finding a violation of Article 5 §§ 1 and 4 of the Convention reopened the proceedings in the applicant’s case and annulled all detention orders in connection with extradition proceedings.
4. Application for temporary asylum
21. On 9 July 2012 the applicant applied for temporary asylum in Russia alleging the risk of ‘extrajudicial deprivation of liberty’.
22. On 11 September 2012 the applicant was granted temporary asylum in Russia due to consideration of his case by the Court and application of an interim measure (see paragraph 18 above).
23. On 2 September 2013 the applicant requested extension of his temporary asylum in Russia. The text of his request read as follows:
“I request you to extend the period of temporary asylum in Russia since the grounds for granting the asylums are still in place.
I request to extend the period of temporary asylum because I was admitted to a masters program [in a university] and wish to finish studies in Russia.”
24. On 30 October 2013 the Moscow Division of the FMS refused to prolong temporary asylum referring to termination of extradition proceedings, removal of the applicant’s name from the wanted person’s list, and the Court’s finding of the applicant’s complaint under Article 3 of the Convention to be manifestly ill-founded (see paragraphs 10 and 13 above). The applicant’s temporary asylum status was terminated. He appealed.
25. On 4 April 2014 the FMS of Russia denied the applicant’s appeal stating that since the proceedings before the Court were finished the ground for granting temporary asylum seized to exist and that studies in Russia may not serve as an alternative ground. The applicant appealed to court.
26. On 30 September 2014 the Basmanniy District Court of Moscow denied the applicant’s appeal stating there were no grounds for extension of the applicant’s temporary asylum and that nothing prevents him from lodging a request on new grounds or otherwise legalizing his status in Russia. The applicant appealed to a superior court.
27. On 25 November 2014 the Moscow Division of the FMS informed the applicant that since he lost temporary asylum in Russia he was under an obligation to leave the country or he might be administratively expelled or deported.
28. On 24 March 2015 the Moscow City Court upheld the lower court’s decision.
29. On 9 April 2015 the applicant requested the FMS of Russia to annul the Moscow Division’s decision of 30 October 2013 refusing to extend the temporary asylum due to consideration of his new complaint by the Court and de novo application of an interim measure under Rule 39 of the Rules of Court (see paragraph 31 below). In reply on 20 April 2015 the applicant was informed by the FMS of Russia that any request for granting of temporary asylum on ‘new grounds’ has to be submitted to the Moscow Division.
30. The applicant’s current immigration status in Russia is unclear.
5. Application for an interim measure of 6 March 2015
31. On 6 March 2015 the applicant lodged the present application with the Court and requested an interim measure seeking to stay his removal to Uzbekistan. The interim measure under Rule 39 of the Rules of Court was granted on 11 March 2015 with the view of any removal procedure against the applicant pending the duration of the proceedings before the Court. Under Rule 39 §§ 1 and 3 the Russian Government were requested to put in place an appropriate mechanism tasked with both preventative and protective functions, to ensure that the applicant benefits from immediate and effective protection against unlawful or irregular removal from the territory of Russia and the jurisdiction of the Russian courts and to inform the Court, on a monthly basis, about the applicant’s whereabouts.
32. On 10 April 2015 the Government informed the Court that the relevant State authorities were notified of the interim measure and that the applicant’s whereabouts were established. At the same time they stated that the applicant does not run the risk of removal to Uzbekistan since there are no extradition or expulsion proceedings pending against him. They further submitted that since September 2011 the applicant had ‘ample opportunities for either legalizing his stay in Russia by ordinary means... or for leaving Russia for other countries’.
33. On 11 May 2015 the applicant’s representative in response to the Government’s submissions argued that the applicant is legally prevented from lodging a successful request for either refugee status or temporary asylum since there are no ‘new grounds or circumstances’ for such requests within the meaning of the relevant provisions of the Russian legislation in force.
COMPLAINT
The applicant complains that in view of his precarious immigration status in Russia he faces constant risk of removal to Uzbekistan where he could be subjected to treatment in breach of Article 3 of the Convention.
QUESTIONS TO THE PARTIES
1. In the light of the applicant’s claims and the documents which have been submitted, does he face a constant risk of removal to Uzbekistan where he could be allegedly subjected to treatment in breach of Article 3 of the Convention?
2. Before deciding on the applicant’s refugee status and temporary asylum requests, did the authorities duly consider the applicant’s claim that he belongs to a vulnerable group of persons who are exposed to a real risk of being subjected to ill-treatment if returned to Uzbekistan? (see Mamazhonov v. Russia, no. 17239/13, §§ 139-141, 144-145, 23 March 2015)
3. 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 fear, as required by Article 3 of the Convention (see De Souza Ribeiro v. France [GC], no. 22689/07, § 82, 13 December 2012) and by the Russian law in line with the Ruling no. 11 of 14 June 2012 by the Plenum of the Russian Supreme Court (§ 14)?
4. Considering the applicant’s allegation that he is precluded by the Russian legislation in force from regularizing immigration status in Russia, does he have at his disposal further legal avenues to pursue while relying on his claims under Article 3 of the Convention?
5. Having regard to the Court’s conclusion in the case Khamrakulov v. Russia (no. 68894/13, § 61, 16 April 2015, not yet final) would granting of temporary asylum extension afford the applicant a redress in respect of his complaints under Article 3 of the Convention?
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