SECOND SECTION
DECISION
Application no. 9934/10
by Nizomzhon SAMIEV
against Georgia
The European Court of Human Rights (Second Section), sitting on 16 November 2010 as a Chamber composed of:
Ireneu Cabral Barreto, President,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Kristina Pardalos,
Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 17 February 2010,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the parties’ observations,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nizomzhon Samiev, is an Uzbek national who was born in 1975. He was represented before the Court by Mr Joni Kobalia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The domestic proceedings
On 22 September 2009 the applicant, arriving from Turkey, was arrested by the Georgian authorities at Batumi airport. The basis for this was his criminal prosecution in Uzbekistan, his country of origin, for an encroachment on the constitutional order, dissemination of materials harmful to the public order, participation in extremist religious movements and certain other offences; he had been wanted by Interpol on account of those criminal proceedings.
On the same day, 22 September 2009, the Batumi City Court ordered the applicant’s detention pending extradition for three months. That period was extended, on 17 December 2009, by two additional months.
On 21 October 2009 the Deputy Prosecutor General of Uzbekistan addressed his Georgian counterpart with a request for the applicant’s extradition. That request was based on the Minsk Convention (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 266, ECHR 2005‑III), to which both Georgia and Uzbekistan were parties.
On 26 October 2009 the applicant filed a request for refugee status in Georgia, complaining that, as a traditional Muslim believer, he had been arbitrarily accused of Wahhabism and persecuted in Uzbekistan. That request was rejected as unsubstantiated by the Georgian Ministry of Refugees on 29 December 2009. The ministerial decision was then upheld, at first instance, by the Tbilisi City Court on 16 February 2010. A further appeal lay against that court decision. However, it is not clear from the case file whether the applicant availed himself of that possibility.
By a letter of 29 October 2009, Human Rights Watch warned the Georgian authorities that, the applicant being a deeply religious Muslim, he ran a real risk of ill-treatment in Uzbekistan. In support of that warning, the international organisation referred to the facts of torture and even disappearance of the applicant’s co-believers.
On 1 February 2010 the acting Minister of Justice of Georgia ordered the applicant’s extradition to Uzbekistan (“the extradition order of 1 February 2010”). The applicant then complained about that extradition order to a court. Referring to the relevant reports of various international observers on the human rights situation in Uzbekistan, he argued, inter alia, that the Uzbek law-enforcement authorities had been notorious for resorting to torture as a means of investigation and that the Georgian authorities had failed to obtain, from the receiving country, sufficient guarantees against a risk of his ill-treatment there.
On 11 February 2010 the Tbilisi City Court dismissed the applicant’s complaint as manifestly ill-founded, finding that the contested extradition order of 1 February 2010 had been duly reasoned and that the applicant, apart from the less relevant reference to the general human rights situation in Uzbekistan, had failed to substantiate the specific risks he had allegedly been facing in his particular situation.
On 17 February 2010 the applicant appealed against the Tbilisi City Court’s decision of 11 February 2010 to the Supreme Court of Georgia.
B. The proceedings before the Court
On the same day, 17 February 2010, the applicant also applied to the Court, complaining about the pending extradition proceedings under Article 3 of the Convention and requesting the Court to intervene urgently under Rule 39 of its Rules.
On 18 February 2010 the President of the Chamber indicated to the Government of Georgia, under Rule 39 of the Rules of Court that, in the interests of the parties and the proper conduct of the proceedings before the Court, the applicant’s extradition to Uzbekistan should be suspended until 18 March 2010. At the same time, the Government were invited to clarify which guarantees the Georgian State had obtained in order to ensure that the applicant would not be subjected to undue treatment in Uzbekistan.
On 24 February 2010 the Government submitted their comments, and, in the light of those, the President of the Chamber decided, on 16 March 2010, to communicate the application under Article 3 of the Convention (Rule 54 § 2 (b) of the Rules of Court) and to extend the previously indicated interim measure for the duration of the proceedings before the Court.
On 12 April 2010 the Government informed the Court that the Supreme Court of Georgia had on 26 March 2010 finally discontinued the extradition proceedings against the applicant, by annulling the extradition order of 1 February 2010. As disclosed by that decision, the Supreme Court reproached the acting Minister of Justice and the Tbilisi City Court for their failure to assess carefully, in the light of the principles developed under Article 3 of the Convention, all the risk factors associated with the applicant’s potential extradition to Uzbekistan. Having discontinued the extradition proceedings, the Supreme Court also ordered the applicant’s immediate release from the courtroom.
Relying on the fact of the final discontinuation of the extradition proceedings, the Government suggested that the matter had been resolved and invited the Court to strike the application out of the list of pending cases, pursuant to Article 37 § 1 (b) of the Convention.
On 6 May 2010 the President of the Chamber, having due regard to the latest developments of the case, lifted the interim measure previously indicated on 18 February 2010. In addition, the applicant was invited to confirm whether, after the termination of the extradition proceedings, he still wished to pursue his application. He did so, maintaining his interest in the Court proceedings.
Subsequently, in their observations of 12 May 2010 on the admissibility and merits of the application, the Government reiterated that, in the light of the final discontinuation of the extradition proceedings, the application should be struck out.
In his observations in reply dated 5 July 2010, the applicant disagreed, arguing that the Supreme Court’s decision of 26 March 2010 did not represent a solid guarantee against his possible extradition to Uzbekistan. A more appropriate course of action would, in his opinion, be for the Georgian State to grant him and his family refugee status. He also informed the Court that, upon delivery of the Supreme Court’s decision of 26 March 2010, instead of being immediately released from the courtroom, the security guards forcibly put him in a car, drove him to the border with Turkey and coerced him, under the gunpoint, to leave Georgian territory. However, the Turkish customs officers, after having examined his passport, refused him entry and, on 27 March 2010, with the help of agents from the Georgian Ministry of Refugees, the applicant was able to return to Tbilisi.
As further disclosed by the case file, on 11 August 2010 the applicant filed another request for refugee status with the Georgian Ministry of Refugees. The Ministry rejected that reiterated request on the following day, finding that no new circumstances justifying the reconsideration of its previous decision of 29 December 2009 had emerged. The Ministry advised the applicant of his right to contest that second refusal before the Tbilisi City Court under the relevant provisions of the Code of Administrative Procedure. It is not, however, clear from the case file whether the applicant resorted to that judicial remedy
On 10 September 2010 the Government submitted their additional comments. They asserted that, after his release on 26 March 2010, the applicant had decided himself to leave for Turkey, as he had no place of residence in Georgia, and that the security guards had merely assisted him in that undertaking by providing him with the means of transportation. In any event, the Government argued, that incident, as well as the question of the applicant’s entitlement to refugee status, was beyond the scope of the present application; its only subject matter had been the outcome of the applicant’s extradition proceedings. However, the Government concluded, since those proceedings had been finally and irrevocably terminated by the res judicata of 26 March 2010 of the Supreme Court of Georgia, the applicant was already in possession of sufficiently solid guarantees against any further risk of extradition to Uzbekistan.
COMPLAINTS
The applicant complained that his extradition to Uzbekistan would be in breach of Article 3 of the Convention.
THE LAW
Article 37 of the Convention, as far as relevant, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(b) the matter has been resolved; ...
2. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court notes that the only subject matter of the present application, as it was introduced and communicated to the respondent Government on 18 February and 16 March 2010 respectively, was the applicant’s imminent extradition from Georgia to Uzbekistan. However, on 26 March 2010 the Supreme Court of Georgia finally discontinued the relevant extradition proceedings, by annulling the extradition order of 1 February 2010 and ordering the applicant’s immediate release from detention.
As regards the applicant’s allegation that, despite the court’s order to release him, he was forcibly taken to the Georgian-Turkish border on 26 March 2010, it obviously raises concerns. However, the Court is not persuaded that, even if this allegation is proven true, which might then arguably raise the issue of a limitation of the applicant’s physical liberty or freedom of movement, it could suffice for a legitimate suspicion that the relevant domestic authorities intend to violate the Supreme Court’s ban on the applicant’s extradition to Uzbekistan. The presumption is that Georgia, as a High Contracting Party to the Convention, is a country governed by rule of law, where decisions of the highest judicial authority are respected by all the agencies of the executive power. Consequently, whilst noting the applicant’s above-mentioned allegation, the Court still finds it insufficient, in the light of the other relevant circumstances of the case, to cast doubt, at this stage, on the genuineness and effectiveness of the final judicial discontinuation of the extradition proceedings in the applicant’s case (cf. Bilasi-Ashri v. Austria (dec.), no. 3314/02, ECHR 2002‑X).
A particular significance should further be attached to the respondent Government’s own statements, in which they averred that the Supreme Court’s decision of 26 March 2010 had irrevocably extinguished any risk of the applicant’s extradition to Uzbekistan. The Court finds no reason to doubt that the Georgian Government were sincere in those statements and will respect their undertaking, bearing in mind the Court’s relevant case-law on the matter (see Bozano v. France, 18 December 1986, § 60, Series A no. 111).
As to the applicant’s argument that, in order to obtain more solid guarantees against his extradition to Uzbekistan, he and his family should be granted refugee status in Georgia, the Court notes that the rejection of his applications for that status by the Georgian Ministry of Refugees either on 29 December 2009 or 11 August 2010 did not have the direct effect of his exclusion from the Georgian territory. Rather, the applicant had been facing return to Uzbekistan strictly in the context of the separate extradition proceedings, linked to his criminal prosecution in his country of origin. Consequently, the unrelated asylum proceedings cannot, in the particular circumstances of the present case, engage the responsibility of Georgia under Article 3 of the Convention (compare with, for example, Ismoilov and Others v. Russia (dec.), no. 2947/06, 12 December 2006 and, by contrast, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 121-127, Series A no. 215), and the right to political asylum, as such, is not guaranteed either by the Convention or its Protocols (see, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 73, Reports of Judgments and Decisions 1996‑V; Kordian v. Turkey (dec.), no. 6575/06, 4 July 2006).
Thus, the Court, having due regard to the Supreme Court’s decision of 26 March 2010 and the respondent Government’s own assurance that the applicant will not be extradited to Uzbekistan, considers that the matter giving rise to the present application has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Moreover, in light of the same considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Takes note of the Government’s assurance that the applicant will not be extradited to Uzbekistan;
Decides to strike the application out of its list of cases.
Stanley NaismithIreneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy