FIRST SECTION
DECISION
Application no. 21762/14
Bobirzhon Baratovich TUKHTAMURODOV
against Russia
The European Court of Human Rights (First Section), sitting on 20 January 2015 as a Chamber composed of:
Isabelle Berro, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 18 March 2014,
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 the Court,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Bobirzhon Baratovich Tukhtamurodov, is an Uzbek national. He was represented before the Court by Ms E. Davidyan, a lawyer practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at 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.
4. The applicant was born in 1975 and lives in Novosibirsk. He is not currently in detention.
1. The applicant’s arrest and extradition proceedings
5. On 20 April 2010 the Uzbek authorities charged the applicant with participating in an extremist organisation of a religious nature (Nurchilar) and distributing material containing religious extremist ideas. On 22 April 2010 the Bukharskiy Town Court in Uzbekistan ordered the applicant’s arrest. The Uzbek authorities put the applicant’s name on the international list of wanted individuals. On an unspecified date in January 2010 the applicant fled to Russia, fearing both prosecution and persecution on religious grounds by the Uzbek authorities.
6. On 18 August 2010 the applicant was arrested in Novosibirsk, Russia in connection with criminal proceedings pending against him in Uzbekistan. He was placed in a temporary detention facility in Novosibirsk.
7. On 24 September 2010 the applicant requested refugee status in the Russian Federation.
8. On 25 November 2010 the Deputy Prosecutor General of Russia ordered the applicant’s extradition to Uzbekistan.
9. On 9 March 2011 the Federal Migration Service (“FMS”) in Novosibirsk denied the applicant’s request for refugee status.
10. On 23 March 2011 the Novosibirsk Regional Court overturned the Prosecutor General’s decision to extradite the applicant, terminated the extradition proceedings against him and ordered his immediate release from detention.
11. On 26 May 2011 the Supreme Court of the Russian Federation upheld the judgment of the Novosibirsk Regional Court on appeal. The appeal court held, inter alia, that the Russian Federation may refuse the extradition of an individual if there are serious grounds for believing that the individual would be subjected to torture or other cruel, inhuman and degrading treatment in the country that is requesting extradition. The court also held that the Prosecutor General’s decision to extradite the applicant had lacked sufficient guarantees regarding the applicant’s safety in the event of his extradition to Uzbekistan.
2. Temporary asylum and temporary residence permit proceedings
12. On 2 June 2011 the FMS in Novosibirsk examined a request from the applicant for temporary asylum. It studied in detail the applicant’s allegations concerning torture and ill-treatment whilst in police custody in Uzbekistan, which had been applied in order to force a confession from him. Moreover, the FMS in Novosibirsk also reviewed the applicant’s submissions concerning similar criminal prosecutions of his relatives and neighbours and the ensuing persecution of him after his release from detention. In particular, the applicant contended that two of his relatives and five of his neighbours had been convicted of being members of the extremist religious organisation. In addition, the applicant submitted that the authorities had pressured him to make a written denial ‒ on a weekly basis ‒ of his allegiance to the extremist religious organisation. They also questioned him on the activities of the organisation. When he found out that his brother had been forced to testify against him, he decided to flee to Russia, fearing further repercussions. The FMS in Novosibirsk found the applicant’s allegations substantiated and granted the applicant’s request for temporary asylum. Afterwards, the applicant withdrew his appeal against the earlier decision by the FMS in Novosibirsk not to grant him refugee status.
13. On 31 May 2012 the FMS in Novosibirsk granted the applicant’s request to have his temporary asylum status renewed for one more year, until 2 June 2013.
14. In the meantime, the applicant applied for temporary residence status in Russia. However, on 30 April 2013 the FMS in Novosibirsk denied the applicant’s request. Two months later the FMS Russia upheld this decision, citing unspecified security reasons as justification.
15. On 21 May 2013 the FMS in Novosibirsk refused the applicant’s request for renewal of his temporary asylum status relying ‒ inter alia ‒ on information received from Russia’s Federal Security Service (FSB) stating that the applicant’s presence in Russia had been deemed undesirable. The exact nature of the information remained undisclosed. The applicant appealed to Russia’s FMS concerning the refusal. In his appeal complaint, the applicant reiterated that the reasons behind the staying of his expulsion had not ceased to exist. He also submitted that the information obtained from the FSB had not been made known to him and, in any event, it would not have justified the termination of his temporary asylum status or his expulsion because the law contained no corresponding provision.
16. On 10 December 2013 the FMS of Russia upheld the decision of the FMS in Novosibirsk. It cited the procedural steps taken in the applicant’s case but did not evaluate his situation and arguments in detail. It also relied mainly on undisclosed information obtained from the FSB and found that no humanitarian grounds existed that would permit renewal of the applicant’s temporary asylum status.
17. On 24 February 2014 the FMS in Novosibirsk sent a letter to the applicant informing him that he would be deported should he fail to leave the territory of Russia of his own volition.
18. On 18 March 2014 the Basmanny District Court of Moscow refused the applicant’s request to have his temporary asylum status renewed and upheld the FMS decision issued on 10 December 2013.
19. On 1 July 2014, following the application of interim measures under Rule 39 by the Court, the Prosecutor of the Novosibirsk Region sought a court order to compel the FMS in Novosibirsk to renew the applicant’s temporary asylum status. No information is available regarding the outcome of these proceedings.
20. On 28 July 2014 the Moscow City Court heard the applicant’s case on appeal. The outcome of these proceedings remains unclear.
21. On 9 October 2014 the Government informed the Court that on 4 September 2014 the FMS in Novosibirsk had granted the applicant temporary asylum in Russia until 4 September 2015 on humanitarian grounds.
22. According to the text of the decision of the FMS in Novosibirsk, the applicant sought temporary asylum in Russia after the European Court of Human Rights had applied interim measures staying his removal in the light of the risk of ill-treatment in Uzbekistan. The FMS in Novosibirsk then noted that dynamic political and social reforms had been taking place in Uzbekistan since 2003. However, it also mentioned the incidents of human rights violations in the country. In particular, it referred to current authoritative human rights reports on ill-treatment of suspects in custody in Uzbekistan. Noting that the applicant remained on the wanted persons list, the FMS in Novosibirsk found that as a suspect, he might indeed be subjected to torture or other cruel, inhuman and degrading treatment in Uzbekistan and therefore granted his request for temporary asylum in Russia.
B. Relevant domestic law
1. Status of refugees
23. For a summary of the relevant general provisions of the Refugees Act of Russia (Law no. 4258-I of 19 February 1993), see Kasymakhunov v. Russia, no. 29604/12, §§ 83-86, 14 November 2013.
2. Provisions on temporary asylum status
24. The Refugees Act (the Act) provides that a person who has been granted temporary asylum status cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4 of the Act).
25. The temporary asylum status may be terminated if (i) the circumstances generating eligibility for such temporary asylum cease to exist; (ii) the temporary asylum holder obtains permanent resident status in Russia or becomes a citizen of Russia or of another state; (iii) the temporary asylum holder resettles outside Russia (section 12 § 5 of the Act).
26. The temporary asylum status may be revoked as a result of (i) the conviction of the temporary asylum holder of a crime committed by him or her in Russia; (ii) the submission by the temporary asylum holder of false information on his or her application for temporary asylum; (iii) the imposition of an administrative sanction on the temporary asylum holder for a drug-related offence (section 12 § 6 of the Act).
27. The Rules on Temporary Asylum Status (the Rules) enacted by the Government of the Russian Federation in accordance with the Refugees Act (decree No. 274 of 9 April 2004) provide that temporary asylum may be granted for a period of up to one year and may be renewed annually at the request of a person seeking temporary asylum who can also provide reasons for such renewal (section 12 § 1 of the Rules). The request for renewal should be submitted no later than one month prior to the expiry of the person’s current temporary asylum status (section 12 § 2 of the Rules).
3. Proceedings against official decisions with adverse effect
28. Under Article 254 § 1 and Article 255 of the Russian Code of Civil Procedure a person can bring civil judicial proceedings against an official decision which, in his or her opinion, has an adverse effect on his rights and freedoms.
COMPLAINTS
29. The applicant complained under Articles 3 and 13 of the Convention that he would face a real risk of ill-treatment if expelled to Uzbekistan and that no effective domestic remedies were available to him in this respect.
THE LAW
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. The Government submitted that the applicant’s complaint was premature. In particular, they contended that on 1 July 2014, following the application of interim measures under Rule 39 by the Court, the Prosecutor of the Novosibirsk Region had sought a court order to compel the FMS in Novosibirsk to renew the applicant’s temporary asylum status. Moreover, the appeal proceedings in the applicant’s case had still been pending.
32. The Government further submitted that on 4 September 2014 the applicant had been granted temporary asylum, that his stay in Russia had been authorised until 4 September 2015 and that under the Refugees Act, the applicant’s return to Uzbekistan before then had been prohibited. They therefore claimed that the applicant had lost his victim status.
33. The applicant maintained his complaint. He also claimed that he had not lost his victim status because the decision not to renew his temporary asylum status issued on 21 May 2013 had not been declared unlawful and he had not received any remedy in this respect. Moreover, the decision to grant temporary asylum status issued on 4 September 2014 had lied within the authorities’ discretion and his new request to have his temporary asylum renewed may be arbitrarily rejected.
34. 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, where substantial grounds have been shown for believing that the individual concerned, if deported, faces 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).
35. The Court further notes that in cases where expulsion has not yet taken place, the material date for the assessment of risks associated with such expulsion is that of the proceedings before the Court. Since the applicant in the present case is still in Russia, the Court will proceed to evaluate the facts which were known at the time of the Court’s consideration of the case (see Chahal v. the United Kingdom, 15 November 1996, §§ 85-86, Reports of Judgments and Decisions 1996‑V; M.D. v. Russia, (dec.), no. 56478/13, § 25, 10 June 2014).
36. The Court will now consider the Government’s objection to the applicant’s complaint on the grounds that it was premature. In this regard, it should refer to the proceedings of 1 July 2014 brought by the Prosecutor in the Novosibirsk Region on behalf of the applicant and the proceedings of 28 July 2014 brought by the applicant on appeal before the Moscow City Court. However, at the time the applicant’s complaint was examined, the Court had not been informed either by the Government or by the applicant about the outcome of any of these proceedings. Therefore, in the circumstances, the Court finds that it is not possible to examine the Government’s objection and to determine whether or not the complaint is premature.
37. As to the victim status of the applicant, the Court observes that in the present case the national courts had annulled the applicant’s extradition order in 2011, that no other removal proceedings against the applicant are currently underway, and that there exists no outstanding order of expulsion. On 4 September 2014 the immigration law enforcement authorities in Novosibirsk renewed the applicant’s temporary asylum status until 4 September 2015. That being the case, the applicant’s expulsion to Uzbekistan against his will is barred under Russian law (see paragraphs 24 and 32 above). Furthermore, the applicant’s temporary asylum status cannot be terminated or revoked unless special circumstances exist (see paragraphs 25 and 26 above). The Government has so far not sought to invoke any such special circumstances. Moreover, in due course the applicant can ask the immigration authorities to renew his temporary asylum status and in the event of an adverse decision, lodge an appeal against it before the court in civil proceedings (see paragraphs 27 and 28 above). The Court notes that the applicant has previously availed himself of this process and there appear to be no obstacles to his seeking recourse in the national courts again, if need be.
38. As matters currently stand, the applicant therefore no longer faces imminent risk of removal to Uzbekistan. Thus, it must be concluded that the factual and legal circumstances which were at the heart of the applicant’s complaint on that account are no longer valid. Consequently, the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention in respect of his claim that he would be subjected to ill‑treatment in Uzbekistan (see M.D. v. Russia, cited above, § 26).
39. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
40. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
41. The above findings do not prevent the applicant from lodging a new application before the Court and making use of the available procedures ‒ including the one under Rule 39 of the Rules of Court ‒ in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011 and Bakoyev v. Russia, no. 30225/11, § 100, 5 February 2013).
42. As regards the applicant’s Article 13 complaint, the Court considers that it is unsubstantiated and should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible;
Decides to lift the interim measure indicated pursuant to Rule 39 of the Rules of Court.
Done in English and notified in writing on 12 February 2015.
Søren NielsenIsabelle Berro
RegistrarPresident
Full & Egal Universal Law Academy