THIRD SECTION
DECISION
Applications nos. 8559/16 and 50232/16
U.A. against Russia
and R.S. against Russia
The European Court of Human Rights (Third Section), sitting on 26 September 2017 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 30 January 2016 and 30 January 2016 respectively,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicants are nationals of Uzbekistan. The President decided that the applicants’ identity should not be disclosed to the public (Rule 47 § 4). Their initials, their dates of birth, the dates on which their applications were introduced, their application numbers, their nationalities, and the particulars of the domestic proceedings and other relevant information are set out in the Appendix.
2. The applicants were represented before the Court by Ms N. Yermolayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 25 February 2015 the applicants and one other individual represented by Ms N. Yermolayeva lodged with the Court application no. 9729/15, invoking Article 3 of the Convention and alleging that the applicants’ removal from Russia to Uzbekistan would be contrary to that provision. On 16 April 2015 the Court, sitting in a single-judge formation, decided to declare the application inadmissible.
4. On 11 January 2016 the applicants signed forms once again authorising Ms N. Yermolayeva to represent them before the Court. On 31 January 2016 she submitted the application form in the applicants’ names, invoking Article 3 of the Convention and alleging that the applicants’ removal from Russia to Uzbekistan would be contrary to that provision.
5. On 29 February 2016 the applicants’ representative lodged a request for interim measures under Rule 39 of the Rules of Court asking for the prevention of their removal from Russia to Uzbekistan. The requests mentioned that both applicants had been taken to a specialised detention facility for migrants. They further mentioned, without any supporting evidence, that the lawyers (the applicant had a second lawyer, who represented them at the national level) had been denied access to the second applicant; no similar statement was made in respect of the first applicant.
6. On 29 February and 2 March 2016 the Court indicated interim measures under Rule 39 of the Rules of Court staying the applicants’ removal from Russian to Uzbekistan for the duration of the proceedings before the Court.
7. No further information had been submitted by the applicants’ representative by 30 September 2016, when she informed the Court that the second applicant had been expelled on 20 February 2016 and that the first applicant’s “destiny” was unknown. There is no information about any actions taken by the applicants’ representative between March and September 2016.
8. On 24 January 2017 the complaints under Article 3 of the Convention were communicated to the Government.
9. On 13 March 2017 the Government submitted to the Registry their observations on the admissibility of the applications. In their observations they emphasised that the applicants’ representatives had never informed the Court of the applicants’ expulsions from Russia. They further stated that there was no evidence that the applicants wished to pursue their applications or that their representative had maintained contact with them after their departure from Russia. The Government stressed, with reference to the Court’s decision in Chirino v. the Netherlands ((dec.), no. 31898/04, 4 May 2006), that further examination of the case was not justified given the absence of communication between the applicants and their lawyer. Accordingly, in their opinion, the application should be rejected unless it could be shown that the applicants’ representative had not lost contact with them and that they continued to support their complaints.
10. On 17 May 2017 the applicants’ lawyer submitted to the Registry her observations on the admissibility and the merits of the applications. She maintained her position that the applicants’ removal to Uzbekistan had been contrary to Article 3 of the Convention. Commenting on the Government’s arguments regarding loss of contact with the applicant, Ms Yermolayeva stated (once again without adducing any evidence) that she had been denied access to the first and second applicants while they had been kept in detention in Russia. Referring to the allegedly “typical and endemic” incommunicado detention of persons in Uzbekistan and the case-law of the Court, she maintained that the applications were admissible.
11. There is no information on any actions, beyond the submission of the observations, taken by the applicants’ representative between September 2016 and the present moment.
THE LAW
12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
13. Having regard to the circumstances of the present case the Court considers it necessary to examine the need to continue the examination of the applications according to the criteria set forth in Article 37 of the Convention. This provision 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
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
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.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
14. Recently – in the judgment in the case of V.M. and Others v. Belgium ([GC], no. 60125/11, § 35, 17 November 2016 with further references), in which the applicants’ complaints concerned Articles 2 and 3 of the Convention – the Court stressed that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application. While it is true that the applicant’s representative has the power to represent him throughout the entire proceedings before the Court, that power does not by itself justify pursuing the examination of the case (see Ali v. Switzerland, 5 August 1998, § 32, Reports of Judgments and Decisions 1998‑V, and Ramzy v. the Netherlands (striking out), no. 25424/05, § 64, 20 July 2010).
15. The Court is also mindful that previously in certain cases it has been prepared to grant a rare exception to the general principle that proceedings must be pursued by an individual “directly affected” by the measure complained of (see N. and M. v. Russia (dec.), nos. 39496/14 and 39727/14, §§ 51-55, 26 April 2016, with further references).
16. Turning to the present case, the Court attaches special significance to the following circumstances. Firstly, although the present application was lodged on 30 January 2016 the applicants had apparently been continuously represented by Ms Yermolayeva since the lodging of their previous application no. 9729/15 on 25 February 2015 (see paragraph 3 above). Secondly, although a final and enforceable decision on the applicants’ extradition had been issued by the deputy Prosecutor General and upheld on 30 July 2015 by the Supreme Court (see the appended table) the request for an interim measure was lodged only seven months later, on 29 February 2016 (one month after the introduction of the application). Thirdly, the Court notes the lack of information on any attempts the applicants’ representative may have made to obtain at least fragmentary documentary evidence to substantiate her allegations concerning her lack of access to the applicants in detention in February 2016 or her lack of knowledge of their removal, as suggested by her observations on the applicants’ behalf. Fourthly, an apparent contradiction exists between the representative’s allegations in her request for an interim measure, where lack of access only to the second applicant is mentioned (see paragraph 5 above), and her subsequent observations, where she maintained that her access to both applicants had been precluded (see paragraph 10 above). There appears to be no reason why the arguments concerning the lack of her access to the second applicant were not brought to the domestic court’s attention in the statement of appeal of 24 February 2016 (see the appended table) or in any other proceedings. Lastly, the final date on which the applicants and the representative had contact appears to be 11 January 2016, when they signed the authorisation forms (see paragraph 4 above).
17. Having regard to the above circumstances the Court concludes that there is no evidence that Ms Yermolayeva has maintained contact with the applicants since 11 January 2016. The Court also emphasises that according to the available material Ms Yermolayeva neither attempted to contact the applicants directly after their expulsion from Russia nor took any steps to enquire whether any of the applicants’ next of kin were willing to maintain the applications.
18. The Court recognises the evident difficulties in maintaining contacts with an applicant in situations where that applicant, as in the present case, has already been removed from the territory of a Contracting State. However, nothing in the case file indicates the existence of exceptional circumstances justifying any departure from the above-mentioned general principles (compare N. and M. v. Russia, cited above, §§ 62-63).
19. Lastly, the Court reiterates that that under Rule 44C § 1 of the Rules of Court, where a party fails to adduce evidence or provide information requested by the Court or to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate (see, among many other authorities, Savriddin Dzhurayev v. Russia, no. 71386/10, § 130, ECHR 2013 (extracts)). In this regard the Court finds it significant that Ms Yermolayeva informed the Court of the second applicant’s expulsion only on 30 September 2016 and that the Court was informed of the first applicant’s removal one year after the fact in the Government’s observations of 13 March 2017 and not by his representative. Furthermore the Court emphasises the fact that despite the insistence on pursuing the application there is no evidence of any actions, beyond the submission of the observations, taken by Ms Yermolayeva after the applicants’ expulsions in February 2016.
20. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the applications.
21. In view of the above, it is appropriate to strike the cases out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the applications out of its list of cases.
Done in English and notified in writing on 19 October 2017.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
APPENDIX
No.
Name
date of birth
application no.
lodged on
Removal proceedings (type, progress, outcome)
Other relevant information
1.
U.A. v. Russia
19 October 1984
no. 8559/16
30 January 2016
Extradition proceedings
10 October 2014 – extradition request by the Uzbek authorities
4 February 2015 – extradition request granted by the Deputy Prosecutor General of the Russian Federation.
30 July 2015 – extradition upheld by the Supreme Court of the Russian Federation
Expulsion proceedings
26 January 2016 – deportation ordered by the Federal Migration Service in the Omsk Region
18 February 2016 – the applicant was deported from Russia
29 February 2016 – requests for an interim measure preventing the applicant’s removal to Uzbekistan
2 March 2016 – interim measure indicated to the Government of Russia
2.
R.S. v. Russia
19 July 1979
no. 50232/16
30 January 2016
Extradition proceedings
22 September 2014 – extradition request by the Uzbek authorities
20 January 2015 – extradition request granted by the Deputy Prosecutor General of the Russian Federation.
30 July 2015 – extradition upheld by the Supreme Court of the Russian Federation
Expulsion proceedings
17 February 2016 – administrative removal ordered by the Kirovskiy District Court of Omsk
20 February 2016 – the applicant was deported from Russia
24 February 2016 – appeal against the order with reference to risk of ill-treatment in Uzbekistan and the claim that the order is “extradition in disguise”; no mentioning of any obstacles in accessing the applicant in detention
1 March 2016 – administrative removal upheld by the Omsk Regional Court
29 February 2016 – request for an interim measure preventing the applicant’s removal to Uzbekistan
29 February 2016 – interim measure indicated to the Government of Russia
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