Communicated on 23 February 2017
THIRD SECTION
Application no. 12018/16
U.A.
against Russia
lodged on 2 March 2016
STATEMENT OF FACTS
1. The applicant is an Uzbek national who was born in 1971. The President decided that the applicant’s identity would not be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms D.V. Trenina and Ms E. Davidyan, lawyers practising in Moscow.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. From 2007 to 2011 the applicant lived and worked in Russia. He had a residence permit and his stay in Russia was lawful. On an unspecified date he returned to Uzbekistan.
4. In summer 2012 the applicant returned to Russia with his wife and three children born in 2005, 2007 and 2009, all Uzbek nationals. His fourth child was born in Russia in 2014.
5. On 19 April 2013 the applicant was issued a residence permit valid until 4 November 2017. That residence permit was subsequently revoked (see paragraph 12 below).
6. Currently, the applicant’s wife and two of his children have residence permits allowing them to stay in Russia; the other two children have temporary residence permits.
1. Extradition proceedings
7. In 2015 the applicant was charged with religious and politically motivated crimes in Uzbekistan in connection with his alleged activities in the Islamic Movement of Uzbekistan, also known as the Islamic Party of Turkestan. His detention in absentia was ordered and he was put on a wanted list.
8. On 21 December 2015 the applicant was arrested in the Sverdlovsk Region, Russia, on the basis of a warrant issued by the Uzbekistani authorities. He was then detained pending extradition.
9. On 21 January 2016 the applicant was released, since the maximum statutory period for detention pending extradition had expired and the Uzbekistani authorities had not submitted a complete extradition request.
10. On 22 January 2016 the Uzbekistani Prosecutor General’s Office requested the applicant’s extradition.
11. The applicant has not informed the Court whether any decision has been taken on that request to date.
2. Deportation proceedings
12. On 29 January 2016 the Sverdlovsk Regional Department of the Federal Migration Service (the “Sverdlovsk Regional FMS”) revoked the applicant’s residence permit, which meant that the applicant was legally obliged to leave Russia within fifteen days of the date of the revocation decision.
13. The applicant submitted that he had not learned about the above decision until 20 February 2016.
14. On 2 March 2016 the Sverdlovsk Regional FMS ordered the applicant’s deportation in view of his failure to leave Russia voluntarily.
15. On 21 March 2016 the applicant challenged in court the decisions of the Sverdlovsk Regional FMS of 29 January 2016 and 2 March 2016. He claimed, among other things, that he would be exposed to a real risk of treatment contrary to Article 3 of the Convention if removed to Uzbekistan. He also claimed that removal from Russia would disrupt his family life and violate his rights under Article 8 of the Convention.
16. On 4 May 2016 the Verkh-Isetskiy District Court of Yekaterinburg upheld the decisions on the revocation of the applicant’s residence permit and on his deportation.
17. On 6 June and 27 July 2016 the applicant lodged appeals against the above-mentioned judgment. His appeals were dismissed by the Sverdlovsk Regional Court on 14 September 2016. The court found that the applicant’s allegations of ill-treatment in Uzbekistan were unsubstantiated. It further stated that nothing prevented the applicant’s family, given that they were all Uzbek nationals, from leaving Russia whenever they chose to.
3. Detention pending deportation
18. On 2 March 2016 the applicant was arrested and placed in a special detention facility for foreign nationals awaiting deportation.
19. On 9 March 2016 the Oktyabrskiy District Court of Yekaterinburg ordered the applicant’s detention in a special detention facility for foreign nationals until 12 June 2016. In justification of the time frame for detention, the court referred to the period required for examination of the applicant’s application for refugee status by the Sverdlovsk Regional FMS (see paragraphs 25-27 below) and, if necessary, for arranging travel documents for him.
20. On 17 March 2016 the applicant appealed against the latter decision on procedural grounds. His appeal was dismissed by the Sverdlovsk Regional Court on 8 April 2016.
21. On 15 June 2016 the Oktyabrskiy District Court of Yekaterinburg extended the applicant’s detention pending deportation until 7 September 2016. In the decision the court stated that the applicant had not raised any objections to the extension. It further stated that since the decision on deportation remained enforceable, there were no legal grounds for the applicant’s release. Lastly, it held that the length of the extension requested by the Sverdlovsk Regional FMS was adequate for the purpose of arranging travel documents for the applicant.
22. On 24 June 2016 the applicant appealed against the above decision, claiming that he had objected to the extension and that his deportation was no longer possible in view of the interim measures indicated by the Court (see paragraphs 31-33 below). The applicant’s appeal was dismissed by the Sverdlovsk Regional Court on 5 July 2016.
23. On 5 September 2016 the Oktyabrskiy District Court of Yekaterinburg extended the applicant’s detention pending deportation until 5 October 2016. Relying on Article 31(9) of the Foreigners Act (see paragraph 34 below), the court dismissed the applicant’s argument that he could not be deported owing to the interim measures. In justification of the time frame for detention, the court referred to the period required for examination of the applicant’s pending appeal against the judgment of the Verkh-Isetskiy District Court of Yekaterinburg of 4 May 2016 (see paragraphs 16-17 above).
24. On 13 September 2016 the applicant appealed against the above decision. He has not informed the Court of the outcome of the appeal to date.
4. Refugee status proceedings
25. On 24 February 2016 the applicant applied to the Sverdlovsk Regional FMS for refugee status. On 14 March 2016 his application was accepted for examination on the merits.
26. By a decision of 25 May 2016 the Sverdlovsk Regional FMS refused the applicant’s request, stating that he did not meet the criteria established by law.
27. On 28 June 2016 the applicant appealed to the Federal Migration Service of the Russian Federation (the “FMS of Russia”) against the refusal to grant him refugee status. He has not informed the Court of the outcome of the appeal to date.
5. Temporary asylum proceedings
28. On 9 March 2016 the applicant applied to the Sverdlovsk Regional FMS for temporary asylum.
29. By a decision of 26 May 2016 the Sverdlovsk Regional FMS refused the applicant’s request.
30. On 28 June 2016 the applicant appealed to the FMS of Russia against the refusal to grant him temporary asylum. He has not informed the Court of the outcome of the appeal to date.
6. Interim measures
31. On 2 March 2016 the Court decided to indicate to the Government, under Rule 39 of the Rules of Court, that “the applicant should not be removed from the territory of the Russian Federation for the duration of three weeks until 23 March 2016”. The Government were asked to provide certain factual information by 16 March 2016.
32. On 16 March 2016 the Government provided the requested information and noted that “the competent domestic bodies have been informed of the indication by the Court of interim measures in this application”.
33. On 18 March 2016 the Court decided to extend the interim measures until further notice.
B. Relevant domestic law and practice
34. Under Article 31(9) of Law no. 115-FZ of 25 July 2002 on the Legal Status of Foreign Nationals in the Russian Federation (“the Foreigners Act”), foreign nationals subject to deportation are detained in special facilities until the execution of the decision on deportation.
35. Articles 1 and 2 of the Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015) provide that having examined on the merits a request for extension of detention of a foreign national with a view to deportation, the court may allow it or reject it. If the court allows the request, it must specify a reasonable term for detention in a special facility and provide justification for it in the judgment.
COMPLAINTS
36. The applicant complained that he would be exposed to a real risk of treatment contrary to Article 3 of the Convention if removed to Uzbekistan. He further complained under Article 13 of the Convention that no effective remedy against his pending deportation was available to him.
37. Referring to Article 5 § 1 of the Convention, the applicant complained of the unlawfulness of his detention pending deportation and of a lack of foreseeability regarding its length.
38. The applicant also complained under Article 8 of the Convention that his removal to Uzbekistan would disrupt his family life.
QUESTIONS TO THE PARTIES
1. Would the applicant face a real risk of being subjected to treatment in breach of Article 3 of the Convention in the event of removal to Uzbekistan?
2. In the domestic proceedings, did the competent national authorities assess adequately the applicant’s claims that he would be exposed to a risk of torture or inhuman or degrading treatment if removed to Uzbekistan?
3. Did the applicant have at his disposal an effective administrative or judicial domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention? If so, did that remedy, in principle and in the applicant’s case, afford him due consideration of those complaints? Did it provide for an automatic suspensive effect in respect of the applicant’s transfer to Uzbekistan?
4. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, can the applicant’s deprivation of liberty be said to be “lawful” within the meaning of paragraph (f) of that provision?
5. Was Russian law governing detention pending deportation sufficiently accessible and precise in order to avoid all risk of arbitrariness (see, mutatis mutandis, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996‑III, § 50)?
6. Would there be a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention, in the event of his deportation from Russia? In particular, did the domestic courts strike a fair balance between the measure imposed on the applicant (deportation) and the legitimate aims pursued, taking into account the best interests and well‑being of the applicant’s children (Üner v. the Netherlands [GC], no. 46410/99, § 58, ECHR 2006‑XII)?
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