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YAKUBOV v. RUSSIA - 7265/10 [2011] ECHR 1891 (8 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1891.html
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[2011] ECHR 1891
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FIRST
SECTION
CASE OF
YAKUBOV v. RUSSIA
(Application
no. 7265/10)
JUDGMENT
STRASBOURG
8
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Yakubov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 7265/10)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by an
Uzbek national, Mr Umid Alimdzhanovich Yakubov (“the
applicant”), on 4 February 2010.
2. The
applicant was represented by lawyers of the NGO EHRAC/Memorial
Human Rights Centre. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
3. On
4 February 2010 the President of the First Section decided to apply
Rule 39 of the Rules of Court, indicating to the Government that the
applicant should not be expelled to Uzbekistan until further notice,
and granted priority treatment to the application under Rule 41 of
the Rules of Court.
On
11 March 2010 the President of the First Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1969 and is currently residing in
the town of Ryazan.
A. The background to the case and the applicant’s
arrival in Russia
In
1999 the applicant, who was residing in Uzbekistan at the material
time, started studying Islam and visiting a mosque in Tashkent. On an
unspecified date in 1999 a neighbour informed on the applicant,
alleging that he was a member of Hizb ut-Tahrir (hereinafter also
“HT”), a transnational Islamic organisation banned in
Russia, Germany and some Central Asian States.
In
the applicant’s submission, he was not a member of HT.
After
the neighbour’s denunciation, the applicant was arrested by the
local police. While in custody, he was deprived of food and water and
severely beaten, his spine was injured and he had to seek medical
treatment after his release. Although he was able to pay a sum of
money to avoid criminal prosecution, on 20 November 1999 the Tashkent
City Court found him guilty of the administrative offence of
membership of Hizb ut-Tahrir and placed him under preventive police
surveillance (“профилактический
учет”).
In
the applicant’s submission, between 1999 and 2008, within the
framework of the police surveillance, the Uzbek law-enforcement
authorities repeatedly detained him for various periods of time,
beating and torturing him on those occasions to obtain information
about other members of HT. The applicant was not provided with food
and water and was not permitted to have outside walks while in police
custody. On each occasion he was released only because he paid the
authorities off.
Having
realised that his persecution would continue, in autumn 2008 the
applicant left Uzbekistan for Belarus. In May 2009, because of the
economic crisis, he moved to Moscow and in August 2009 he settled in
Ryazan where he started his own business trading in fruit and
vegetables
Upon
his arrival in Russia the applicant applied for a residence permit
and a work permit via a private company which specialised in
assisting foreign nationals in dealing with migration formalities and
which obtained the above-mentioned documents for him.
B. Criminal proceedings against the applicant in
Uzbekistan
On
7 September 2009 the Uzbek authorities instituted criminal
proceedings against the applicant on suspicion of having participated
in the activities of Hizb ut-Tahrir and having unlawfully left the
territory of Uzbekistan. In the relevant decision HT was referred to
as a “banned religious extremist, separatist and fundamentalist
organisation”.
On
26 October 2009 the applicant was charged in absentia with
having participated in Hizb ut-Tahrir (Article 244-2 of the Uzbek
Criminal Code (UCC), under which the offence of establishing, leading
or participating in religious extremist, separatist, fundamentalist
or other prohibited organisations is punishable by a term of
imprisonment of up to fifteen years) and illegal departure from the
country (Article 223 of the UCC).
On
27 October 2009 the Yunusabadskiy District Department of the Interior
(“the Yunusabadskiy ROVD”) put the applicant’s name
on a wanted list. On 28 October 2009 the Yunusabadskiy District Court
of Tashkent ordered the applicant’s placement in custody. The
decision noted, among other things, that on 20 November 2009 the
applicant had been already found guilty of an administrative offence
of participation in HT and that he had been placed under preventive
police surveillance. However, in 2005 he had continued his unlawful
activities and had unlawfully left Uzbekistan.
C. Extradition proceedings
On
4 January 2010 the applicant was arrested in Ryazan in connection
with his eventual extradition to Uzbekistan.
On
6 January 2010 the Ryazan prosecutor of the Moscow transport
prosecutor’s office remanded the applicant in custody with a
view to securing his extradition.
In
a decision of 14 January 2010 the Ryazan prosecutor of the Moscow
transport prosecutor’s office found that the prosecution for
the offences imputed to the applicant by the Uzbek authorities had
become time-barred under Russian law and refused his extradition to
Uzbekistan. By the same decision he ordered the applicant’s
release.
D. Expulsion proceedings
By
a letter of 22 January 2010 the head of the Ryazan Department of the
Federal Security Service (“the Ryazan FSB”) informed the
Ryazan Department of the Federal Migration Service (“the Ryazan
FMS”) that the applicant was wanted by the Uzbek authorities on
suspicion of membership of HT. The letter stressed that in 2004 the
Russian Supreme Court had banned HT as a terrorist organisation. The
Ryazan FMS was invited to consider annulling the applicant’s
work and residence permits.
On
25 January 2010 officers of the Moskovskiy District Department of the
Interior of Ryazan arrested the applicant on suspicion of having
committed minor disorderly acts.
By
a letter of 25 January 2010 the Ryazan FMS informed the applicant
that it had revoked his work permit because he represented a “threat
to the security of the Russian Federation [and] its nationals”.
The letter stated that the applicant was to leave the Russian
territory within three days of receipt of the letter.
By
a decision of 26 January 2010 the Justice of the Peace of the 59th
Court Circuit of the Moskovskiy District of Ryazan found the
applicant guilty of having committed minor disorderly acts and
sentenced him to seven days’ administrative detention.
On
1 February 2010 the Ryazan FMS issued an administrative offence
report (“протокол
об административном
правонарушении”),
stating that the applicant had submitted false information when
applying for residence and work permits.
By
a decision of 1 February 2010 the Sovetskiy District Court
established that the applicant had submitted false documents when
applying to the Ryazan FMS for residence and work permits. The court
imposed an administrative fine on the applicant and ordered his
expulsion from Russia.
On
5 February 2010 the applicant appealed to the Ryazan Regional Court
against the decision of 1 February 2010 ordering his expulsion. He
submitted, among other things, that he had left Uzbekistan in 2008
because of his persecution by the Uzbek authorities, which had
accused him of membership of a proscribed religious organisation.
Between 1999 and 2008 he had been repeatedly ill-treated by Uzbek
law-enforcement officers who had injured his spine and had deprived
him of food and water while he had been in their custody. As a result
of the beatings, the applicant had developed kidney problems and
suffered from recurring pain in his head and back. Because of his
spine condition he had had to be administered anaesthetic injections
while in custody in Russia. The applicant stressed that, if expelled
to Uzbekistan, he would be arrested immediately and subjected to
ill-treatment again.
On
5 February 2010 the President of the First Section granted the
applicant’s request and indicated to the Russian Government
under Rule 39 that the applicant should not be expelled to
Uzbekistan until further notice.
On
8 February 2010 the applicant’s lawyer, K., lodged with the
Ryazan Regional Court a further appeal against the expulsion order.
She referred to the unsuccessful extradition proceedings against her
client and stated that his expulsion was in reality a disguised
extradition. She cited the cases of Mr Muminov and Mr Kamaliyev, whom
the Russian authorities had first refused to extradite and had then
expelled to Uzbekistan, thereby enabling the Uzbek authorities to try
and convict them of the offences for which their extradition had been
refused. Relying on reports of various NGOs and an information note
of the Ministry of the Foreign Affairs of the Russian Federation, K.
stated that use of torture against detainees was widespread in the
Uzbek penitentiary system. She averred that the Uzbek law-enforcement
authorities had already tortured the applicant by beating him and
refusing him food and water and that his spine had been injured as a
result of those beatings.
According
to a written statement by K. dated 11 February 2010, she visited the
applicant in facility TETs-2 on 9 February 2010. The applicant had
difficulty moving unaided because of his spine injury. He suffered
from acute pain in his back and was receiving anaesthetic injections
for it.
By
a decision of 17 February 2010 the Ryazan Regional Court upheld the
expulsion order. It noted that the applicant’s submissions that
his expulsion would endanger his life and health were unsubstantiated
because he had failed to furnish “indisputable evidence”
(“бесспорные
доказательства”)
to that effect. The court did not provide any further details on that
point.
E. Asylum proceedings
On
7 February 2010 the applicant applied to the Ryazan FMS for refugee
status. In his application he submitted, in particular, that in 1999
he had started studying the Koran and visiting a mosque in Tashkent.
After a neighbour had informed on him, alleging that he was a member
of HT, the local police had arrested him. While in their hands, the
applicant had been deprived of food and water and severely beaten,
his spine had been injured and he had had to seek medical treatment
after his release. Although he had been able to pay a sum of money to
avoid criminal prosecution in 1999, he had been nonetheless found
guilty of the administrative offence of membership of HT and placed
under preventive police surveillance.
The
applicant further stated that between 1999 and 2008 he had been
repeatedly arrested by the law-enforcement authorities, held in
detention for several days, beaten up and requested to inform on
other presumed members of HT. On each occasion he had been released
only because he had paid the officers off. Convinced that his
persecution would continue, in autumn 2008 the applicant had left
Uzbekistan for Belarus. In May 2009, because of the economic crisis,
he had moved to Moscow and in August 2009 he had settled in Ryazan
where he had started his own business trading in fruit and
vegetables.
Referring
to the widespread practice of the use of torture against detainees
and persons suspected of membership of proscribed religious
organisations, the applicant submitted that, if returned to
Uzbekistan, he would also be subjected to torture. In that connection
he relied, among other things, on recent reports of Human Rights
Watch and Amnesty International in respect of Uzbekistan; the United
Nations (UN) Secretary General’s report “Situation of
human rights in Uzbekistan” (A/61/526); the concluding remarks
of the UN Committee against Torture, issued in November 2007 in
respect of Uzbekistan; the information note of the Ministry of
Foreign Affairs of the Russian Federation; and the judgment of the
Strasbourg Court in the case of Ismoilov and Others v. Russia.
Lastly, he pointed to his own experience of torture at the hands of
law-enforcement authorities in Uzbekistan and stated that he ran a
real risk of being subjected to it again, if returned to his home
country.
On
5 May 2010 the Ryazan FMS dismissed the applicant’s asylum
request. In its decision the migration authority stated that the
applicant had unlawfully left Uzbekistan and had failed to apply for
asylum in due time after his arrival in Russia. Despite his alleged
persecution in Uzbekistan in 1998-2009 he had continued living there,
without applying to the Uzbek authorities for protection. Moreover,
the applicant’s allegations did not match any of the forms of
persecution on religious grounds set out in the “Guidelines on
Procedures and Criteria for Determining Refugee Status under the 1951
Geneva Convention”. According to a document issued on an
unspecified date by the Russian Federal Migration Service (“the
FMS”) and entitled “On some aspects of ensuring freedom
of religion in Uzbekistan”, since 1992 that country had joined
a number of international agreements on human rights and the State
policy in respect of religion was to support the activities of
various religious organisations. Moreover, since 1996 Uzbekistan has
been a party to the United Nations Convention against Torture. The
migration authority concluded that the applicant had requested asylum
solely on the ground that he feared criminal prosecution in his home
country in connection with his participation in HT. The decision
contained no reference to the applicant’s arguments concerning
the use of torture against detainees in Uzbekistan and the bulk of
the information from international governmental and non-governmental
organisations to which he referred, or to his submission about his
own alleged experience of ill treatment at the hands of the
Uzbek law-enforcement authorities.
On
28 May 2010 the applicant appealed against the decision of 5 May
2010 to the FMS. He claimed that the Ryazan FMS had based its
decision on irrelevant grounds, such as his allegedly unlawful
departure from Uzbekistan. He stressed that it had also disregarded
credible information from independent sources concerning the
widespread use of torture by the Uzbek authorities against detainees
and their persecution of persons accused of participation in
prohibited religious organisations, such as HT, as well as the
relevant findings made by the Strasbourg Court in its recent
judgments concerning similar situations. The applicant also averred
that the Ryazan FMS had based its conclusions on the information
contained in one single and undated document, issued by the FMS,
which was most probably outdated. The applicant further stressed that
his expulsion had been initiated by the FSB after an unsuccessful
attempt to extradite him. That authority had explicitly instructed
the Ryazan FMS, in a number of letters, that the applicant, as a
member of HT, a prohibited organisation, should be expelled from
Russia and that they considered that granting him asylum would be
“inappropriate” (нецелесообразный).
By
a decision of 8 June 2010 the Sovetskiy District Court ordered the
applicant’s release.
On
20 July 2010 the FMS dismissed the applicant’s complaint and
upheld the Ryazan FMS decision of 5 May 2010, reiterating almost
verbatim the text of the decision by the latter authority.
On
19 August 2010 the applicant complained to the Basmanny District
Court of Moscow about the FMS decision of 20 July 2010, reiterating
the arguments raised in his complaint about the Ryazan FMS decision
of 28 May 2010. He particularly emphasised that there was a real
risk of him being subjected to ill-treatment, that the Uzbek
authorities had already tortured him and that as a result of the
torture he was suffering from vertebral compression fractures. He
enclosed a medical certificate dated 16 June 2010 and stating
that a tomography of his spine revealed “after effects of
compression fractures of the 1, 2 and 5 vertebrae”.
By
a letter of 3 September 2010 the office of the United Nations High
Commissioner for Refugees (“the UNHCR”) informed the
applicant’s lawyer that it had carefully examined her client’s
application for international protection. The examination had
ascertained that the applicant was outside his country of nationality
due to a well-founded fear of being persecuted by the authorities of
his country for reasons of imputed political opinions and that, owing
to that fear, he was unable to return to Uzbekistan and was eligible
for international protection under the UNHCR mandate.
On
10 November 2010 the Basmanny District Court of Moscow dismissed the
applicant’s complaint about the migration authorities’
refusal to grant him asylum. The court noted that the applicant had
failed to apply for asylum in due time after his arrival in Russia
and had informed the authorities of his fears of religious
persecution in Uzbekistan only after his arrest in administrative
proceedings. It further pointed out that the applicant had failed to
adduce convincing reasons confirming his fear of unlawful religious
persecution, without providing any further details. The decision was
silent on the applicant’s arguments concerning the risk of him
being subjected to torture in the event of his return to his home
country, as well as his reference to information on the widespread
use of torture by law enforcement authorities, as contained in
the reports enclosed with his complaint.
The
applicant appealed against the decision, reiterating the arguments
raised in his previous complaints and stressing that the trial court
had failed to examine his submissions concerning the risk of
ill-treatment.
On
22 March 2011 the Moscow City Court upheld the decision of
10 November 2010. The court reasoned that the migration
authorities had conducted a thorough check of the applicant’s
allegations and had correctly dismissed them. The applicant’s
submission that the previous decisions had disregarded his arguments
concerning the individualised risk of persecution was not valid
because he had applied for asylum only after having been arrested in
administrative proceedings. The court noted that the applicant had
failed to adduce facts which would confirm his fear of religious
persecution, without providing any further details.
On
1 April 2011 the applicant filed with the Ryazan FMS a request for
temporary asylum, claiming that he would run a real risk of
ill-treatment if expelled to Uzbekistan. The outcome of the
proceedings is unclear.
II. RELEVANT DOMESTIC LAW
For
a summary of the relevant domestic law provisions regarding the
asylum proceedings see Muminov v. Russia (no. 42502/06, §§
58 61, 11 December 2008), and Ismoilov and Others v.
Russia (no. 2947/06, §§ 92 95, 24 April
2008).
III. REPORTS ON UZBEKISTAN
For
relevant reports on Uzbekistan in the time span between 2002 and 2007
and, in particular, on the situation of persons accused of membership
of Hizb ut-Tahrir, see Muminov (cited above, §§
67 72 and 73 74, respectively).
In
Amnesty International Report 2009 – Uzbekistan, published in
May 2009, that organisation stated that it continued to receive
persistent allegations of widespread torture and ill-treatment,
stemming from persons suspected of being members of banned Islamic
groups or having committed terrorist offences. The report stressed
that the Uzbek authorities continued to actively seek extradition of
those persons and, in particular, presumed members of Hizb ut-Tahrir,
from the neighbouring countries, including Russia, and that most of
those returned to Uzbekistan were held incommunicado, which increased
their risk of being tortured or ill-treated.
In
November 2010 the United States Department of State released its
International Religious Freedom Report 2010 which, in its chapter on
Uzbekistan, in so far as relevant, reads:
“...
The main laws under which authorities charge citizens
for religious activity are article 159 (anticonstitutional activity);
... and article 244, section 2 (establishment, direction of, or
participation in religious extremist, separatist, fundamentalist, or
other banned organizations) of the criminal code.
...
Restrictions on Religious Freedom
...
The government bans Islamic organizations it deems
extremist and criminalizes membership in them. Chief among the banned
organizations are Hizb ut-Tahrir (HT), Akromiya, Tabligh Jamoat, and
groups the government broadly labeled "Wahhabi."
...
The HT Islamist political movement remained banned under
the extremism law. Because HT is primarily a political organization,
albeit motivated by religious ideology, and because it does not
condemn terrorist acts by other groups, authorities’ actions to
restrict HT and prosecute its members are not a restriction on
religious freedom per se. However, convictions of individuals
associated with HT and similar organizations have lacked due process
and have also involved credible allegations of torture. The number of
convictions of HT members has decreased for the third consecutive
year.
...
The government continued to commit serious abuses of
religious freedom in its campaign against extremists or those
participating in underground Islamic activity. In many cases
authorities severely mistreated persons arrested on suspicion of
extremism, using torture, beatings, and harsh prison conditions. ...
Family members of prisoners convicted on charges related to religious
extremism report that prisoners were often not allowed to read the
Qur’an or pray privately. Most defendants convicted of
extremism charges received sentences ranging from three to 14 years;
a smaller number received sentences of 16 to 20 years.
...
On June 28, 2009, Golib Mullajonov died in prison after
reportedly being beaten by other inmates. Mullajonov had been serving
a prison sentence for membership in HT.
There were no updates in the following cases of inmates
convicted of religious extremism who died under unclear
circumstances: the May 2008 case of Odil Azizov and the November 2007
cases of Fitrat Salakhiddinov and Takhir Nurmukhammedov, all of whose
relatives reported finding signs of torture on the bodies.
There were several reports of beatings of prisoners
serving sentences for religious convictions. In June and April 2010
family members of prisoners serving long sentences for charges
related to extremism reported that other inmates had severely beaten
their relatives in prison, at the instruction of a prison official.
In summer 2009 two high-profile murders, one murder
attempt, and one shoot-out took place in Tashkent that were alleged
by the government to have religious links (for example, one target
was the chief imam for the city of Tashkent). In the months that
followed, as many as 200 persons were arrested allegedly in
connection with these incidents; many were charged with membership in
extremist religious organizations and attempting to overturn the
constitutional order. Between January and April 2010 various courts
in closed trials convicted at least 50 persons and imposed sentences
ranging from suspended sentences up to 18 years in prison. There were
unconfirmed reports that an additional 150 individuals were convicted
in related trials. During the same time period, authorities opened
hundreds more cases against alleged extremists (particularly those
labeled "Wahhabists" and "jihadists") on charges
unrelated to the killings. Human rights activists report that the
families of several defendants accused authorities of using torture
and coercion to obtain confessions, and many questioned whether due
process guarantees were followed.
...
There were limited reports of cases of arrest or
detention based on alleged membership in the religious extremist
organization HT, and the HT label was no longer extensively used as a
pretext to arrest and imprison for other reasons. In an April 2009
report, the Moscow-based Memorial human rights group released a list
of 1,452 individuals prosecuted by officials on allegedly politically
motivated charges between 2004 and 2008. Nearly 95 percent of them
were charged with religious extremism, many for alleged HT
membership. The report cited 38 trials involving multiple religious
extremism suspects in 2004, 54 in 2005, 43 in 2006, 18 in 2007, and
10 in 2008. It was impossible to verify the number of prisoners in
detention for alleged HT membership; estimates from previous
reporting periods were as high as 4,500.
...
During the reporting period, only a small number of
convictions for HT membership were reported, as the government turned
its attention to other groups. Several of the people convicted in
secret trials following the Tashkent killings were accused of being
"Wahhabists," but the exact number convicted with this
label was unknown. In the previous reporting period, at least 11
other persons were imprisoned for being "Wahhabists" or
extremists from other religious extremist organizations.
The government continued to pursue the extradition of
suspected Uzbek religious extremists from third countries,
particularly from Kyrgyzstan, Russia, and Ukraine, including those
who had sought asylum. During the previous reporting period, at least
two individuals seeking political asylum in Kyrgyzstan were forcibly
extradited to Uzbekistan and imprisoned on religious extremism
charges.
There were no updates in the following cases of
individuals convicted of membership in HT and other extremist
organizations during the previous reporting period: the June 2008
sentencing of two women--Ugiloy Mirzaeva and Rano
Akhrorkhodzhayeva--to five years’ imprisonment for HT
membership, recruitment, and dissemination of extremist literature;
the February 2008 sentencing of 13 individuals to between 16 and
20 years in prison on charges of membership in a religious extremist
organization, with allegations that at least one confession was
obtained under duress; the January 2008 sentencing of Alisher
Ubaydullayev to five years’ imprisonment for membership in an
extremist organization, based on accusations of spreading Wahhabi
ideas and on his participation in an antigovernment rally outside the
Uzbek embassy in London in 2005; the December 2007 conviction of
three men of membership in Tabligh Jamoat and sentencing of each to
between 11 and 14 years in prison; the October 2007 sentencing of
eight men, who were tortured during pretrial investigation according
to human rights activists, to between three and 10 years’
imprisonment for membership in HT; and the July 2007 sentencing of
Dilnoza Tokhtakhodjaeva to three years’ imprisonment and six
other women to two year suspended sentences for membership in HT
after reportedly being subjected to psychological pressure and
threats.”
In
January 2011 Human Rights Watch released its annual World Report
2010. The chapter entitled “Uzbekistan”, in so far as
relevant, states:
“Uzbekistan’s human rights record remains
abysmal, with no substantive improvement in 2010. Authorities
continue to crackdown on civil society activists, opposition members,
and independent journalists, and to persecute religious believers who
worship outside strict state controls ...
...
Criminal Justice, Torture, and Ill-Treatment
Torture remains rampant in Uzbekistan. Detainees’
rights are violated at each stage of investigations and trials,
despite habeas corpus amendments that went into effect in 2008. The
Uzbek government has failed to meaningfully implement recommendations
to combat torture that the United Nations special rapporteur made in
2003.
Suspects are not permitted access to lawyers, a critical
safeguard against torture in pre-trial detention. Police use torture
and other illegal means to coerce statements and confessions from
detainees. Authorities routinely refuse to investigate defendants’
allegations of abuse.
...
On July 20, 37-year-old Shavkat Alimhodjaev, imprisoned
for religious offenses, died in custody. The official cause of death
was anemia, but Alimhodjaev had no known history of the disease.
According to family, Alimhodjaev’s face bore possible marks of
ill-treatment, including a swollen eye. Authorities returned his body
to his family’s home at night. They insisted he be buried
before sunrise and remained present until the burial. Authorities
have not begun investigating the death.
...
Freedom of Religion
Although Uzbekistan’s constitution ensures freedom
of religion, Uzbek authorities continued their unrelenting,
multi-year campaign of arbitrary detention, arrest, and torture of
Muslims who practice their faith outside state controls or belong to
unregistered religious organizations. Over 100 were arrested or
convicted in 2010 on charges related to religious extremism.
...
Key International Actors
The Uzbek government’s cooperation with
international institutions remains poor. It continues to deny access
to all eight UN special procedures that have requested invitations,
including those on torture and human rights defenders ...”
Chapter
“Uzbekistan 2011” of the Amnesty International annual
report 2011, released in May of the same year, in so far as relevant,
states as follows:
“Reports of torture or other ill-treatment
continued unabated. Dozens of members of minority religious and
Islamic groups were given long prison terms after unfair trials ...
...
Torture and other ill-treatment
Despite assertions by the authorities that the practice
of torture had significantly decreased, reports of torture or other
ill-treatment of detainees and prisoners continued unabated. In most
cases, the authorities failed to conduct prompt, thorough and
impartial investigations into these allegations.
Several thousand people convicted of involvement with
Islamist parties or Islamic movements banned in Uzbekistan, as well
as government critics and political opponents, continued to serve
long prison terms under conditions that amounted to cruel, inhuman
and degrading treatment.
Uzbekistan again refused to allow the UN Special
Rapporteur on torture to visit the country despite renewed requests.
...
Counter-terror and security
Closed trials started in January of nearly 70 defendants
charged in relation to attacks in the Ferghana Valley and the
capital, Tashkent, in May and August 2009 and the killings of a
pro-government imam and a high-ranking police officer in Tashkent in
July 2009. The authorities blamed the Islamic Movement of Uzbekistan
(IMU), the Islamic Jihad Union (IJU) and the Islamist Hizb-ut-Tahrir
party, all banned in Uzbekistan, for the attacks and killings. Among
the scores detained as suspected members or sympathizers of the IMU,
the IJU and Hizb-ut-Tahrir in 2009 were people who attended
unregistered mosques, studied under independent imams, had travelled
abroad, or were suspected of affiliation to banned Islamic groups.
Many were believed to have been detained without charge or trial for
lengthy periods. There were reports of torture and unfair trials.
...
• In April, Kashkadaria Regional Criminal Court
sentenced Zulkhumor Khamdamova, her sister Mekhriniso Khamdamova and
their relative, Shakhlo Pakhmatova, to between six and a half and
seven years in prison for attempting to overthrow the constitutional
order and posing a threat to public order. They were part of a group
of more than 30 women detained by security forces in
counter-terrorism operations in the city of Karshi in November 2009.
They were believed to have attended religious classes taught by
Zulkhumor Khamdamova in one of the local mosques. The authorities
accused Zulkhumor Khamdamova of organizing an illegal religious
group, a charge denied by her supporters. Human rights defenders
reported that the women were ill-treated in custody; police officers
allegedly stripped the women naked and threatened them with rape.
• Dilorom Abdukadirova, an Uzbek refugee who had
fled the country following the violence in Andizhan in 2005, was
detained for four days upon her return in January, after receiving
assurances from the authorities that she would not face charges. In
March, she was detained again and held in police custody for two
weeks without access to a lawyer or her family. On 30 April, she was
convicted of anti-constitutional activities relating to her
participation in the Andizhan demonstrations as well as illegally
exiting and entering the country. She was sentenced to 10 years and
two months in prison after an unfair trial. Family members reported
that she appeared emaciated at the trial and had bruises on her face.
...
Freedom of religion
The government continued its strict control over
religious communities, compromising the enjoyment of their right to
freedom of religion. Those most affected were members of unregistered
groups such as Christian Evangelical congregations and Muslims
worshipping in mosques outside state control.
• Suspected followers of the Turkish Muslim
theologian, Said Nursi, were convicted in a series of trials that had
begun in 2009 and continued into 2010. The charges against them
included membership or creation of an illegal religious extremist
organization and publishing or distributing materials threatening the
social order. By December 2010, at least 114 men had been sentenced
to prison terms of between six and 12 years following unfair trials.
Reportedly, some of the verdicts were based on confessions gained
under torture in pre-trial detention; defence and expert witnesses
were not called; access to the trials was in some cases obstructed
while other trials were closed.
The
2010 United States Department of State Country Report on Human Rights
Practices in Uzbekistan, released in April 2011, in so far as
relevant, reads:
“...
c. Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
Although the constitution and law prohibit such
practices, law enforcement and security officers routinely beat and
otherwise mistreated detainees to obtain confessions or incriminating
information. Sources reported that torture and abuse were common in
prisons, pretrial facilities, and local police and security service
precincts. Reported methods of torture included severe beatings,
denial of food, sexual abuse, tying and hanging by the hands, and
electric shock. Family members of prisoners reported several cases of
medical abuse, and one person reportedly remained in forced
psychiatric treatment. The government reported that during the first
six months of the year, it opened 226 criminal cases against 285
employees of law enforcement bodies. Of these, 75 persons were
accused of charges related to abuse of power, and four were charged
with torture or other brutal or degrading treatment. The remaining
cases were for unspecified offenses. During the first nine months of
the year, the government dismissed and brought criminal charges
against 186 employees of law enforcement bodies for unstated reasons.
The UN Human Rights Committee in its five-year review of
the country under the International Covenant on Civil and Political
Rights (ICCPR Review) expressed concerns in a March 25 publication
that the country’s definition of torture in the criminal code
is not in conformity with Article 1 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, to
which the country is a party.
In a joint statement submitted for the ICCPR Review, the
Human Rights Alliance of Uzbekistan, the Committee for the Liberation
of Prisoners of Conscience, and the Uzbek-German Forum for Human
Rights stated that torture and abuse by police and investigating
authorities remain "systematic, unpunished, and encouraged"
by senior government officials. The report noted that judges and
prosecutors routinely failed to investigate allegations of torture,
and that the country’s leadership, including heads of law
enforcement agencies, failed to condemn publicly the use of torture.
In February an independent news Web site reported that
family members of prisoner Sanjar Narmuradov, serving a 13-year
sentence on extremism charges, stated he was tortured and mistreated
in a Tashkent Region prison.
In March, 12 of 25 defendants charged with religious
extremism reported to a Jizzakh court that they were tortured in
pretrial detention facilities. The court ordered an investigation of
these claims, but concluded there was no evidence of torture.
On March 29, a Bukhara court convicted Kurban Kadyrov of
participation in anticonstitutional activity as a member of a
religious extremist group, sentencing him to eight years in prison.
The court did not address Kadyrov’s complaints that he only
signed a confession because he was tortured during interrogation. On
April 29, a regional Bukhara court upheld his conviction and sentence
on appeal.
In April the Initiative Group of Independent Human
Rights Defenders of Uzbekistan (IGIHRDU) reported that prisoner
Dilshodbek Amanturdiev complained to family members that during the
first four months of the year fellow inmates subjected him to torture
instigated by the prison administration. Amanturdiev reportedly
stated that in one incident, he was beaten unconscious.
...
Authorities reportedly meted out harsher than typical
treatment to individuals suspected of Islamist extremism throughout
the year, especially to pretrial detainees who were allegedly members
of banned religious extremist political organizations or to the Nur
group, which is not officially banned. Local human rights workers
reported that authorities often offered payment or other inducements
to inmates to beat other inmates suspected of religious extremism.
...
Relatives of prisoners reported the deaths of several
prisoners serving sentences, most of whom received sentences related
to religious extremism. In some cases, family members reported that
the body of the prisoner showed signs of beating or other abuse, but
authorities pressured the family to bury the body before examination
by a medical professional. Reported cases that fit this pattern
included those of Nurullo Musaev and Shavkat Alimhojaev. There were
no updates to the reported cases in 2009 that fit this pattern,
including the deaths of Abdulatif Ayupov, Ismat Hudoyberdiyev, Negmat
Zufarov, and Golib Mullajonov.
...
Authorities continued to arrest persons arbitrarily on
charges of extremist sentiments or activities and association with
banned religious groups. Local human rights activists reported that
police and security service officers, acting under pressure to break
up extremist cells, frequently detained and mistreated family members
and close associates of suspected members of religious extremist
groups. Coerced confessions and testimony in such cases were
commonplace.
Many of the year’s arrests related to religious
extremism resulted from two high profile killings, an additional
homicide attempt, and one exchange of gunfire that took place in
Tashkent during the summer of 2009. Between January and April, courts
convicted at least 50 persons on charges of extremism in closed
trials, issuing verdicts ranging from suspended sentences to 18 years
in prison. There were reports that as many as 150 other persons were
convicted in related trials across the country. The families of
several defendants accused authorities of using torture and coercion
to obtain confessions, and many raised questions regarding due
process provisions.
...
According to 2009 reforms to the criminal procedure
code, defense attorneys may access government-held evidence relevant
to their clients’ cases once the initial investigation is
completed and the prosecutor files formal charges. There is an
exception, however, for evidence that contains information that if
released could pose a threat to state security. During the year
courts invoked that exception frequently, leading to complaints that
its primary purpose is to allow prosecutors to avoid sharing evidence
with defense attorneys. In many cases, prosecution was based solely
upon defendants’ confessions or incriminating testimony from
state witnesses, particularly in cases involving suspected religious
extremists. Lawyers may, and occasionally did, call on judges to
reject confessions and investigate claims of torture. Judges often
did not respond to such claims or dismissed them as groundless.
...
On January 18, a Kashkadarya court sentenced human
rights activist Gaybullo Jalilov for membership in an extremist
religious group that allegedly planned terrorist attacks against a
regional airport. Jalilov, who had been active in assisting others
accused of extremism, claimed officials mistreated him while he was
in custody and coerced him into signing a confession. On March 9, the
Kashkadarya Regional Criminal Court upheld his conviction and
sentence. Jalilov reportedly came to his appellate hearing with a
swollen eye and told relatives that he had been punched and kicked
repeatedly in his cell. In a closed hearing on August 5, the
Kashkadarya court extended his sentence by four years for conducting
anticonstitutional activities in prison.
On April 30, an Andijan court sentenced Diloram
Abdukadirova to 10 years in prison for illegal border crossing and
threatening the constitutional order. Abdukadirova fled the country
after witnessing the 2005 Andijan events. She returned to the country
in January after authorities reportedly gave repeated assurances to
her family that she could come home without fear of prosecution, but
she was immediately detained and later charged. A family member
reported that Abdukodirova had bruises on her face during her trial.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
The
applicant complained that, if expelled to Uzbekistan, he would run a
real risk of being subjected to treatment in breach of Article 3 of
the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
applicant also contended under Article 13 of the Convention that he
had had no effective remedies in respect of his allegations of risk
of ill treatment in Uzbekistan. Article 13 reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
1. The Government
The
Government argued that the applicant had first complained about his
fear of being subjected to ill-treatment in his appeal against the
decision ordering his expulsion. However, he had failed to furnish
“indisputable and objective evidence” to support those
allegations. In any event, the appellate court had had no realistic
opportunity to examine those submissions because a complaint against
an administrative expulsion order was to be examined within
twenty-four hours of its submission. Moreover, the alleged risk of
ill-treatment in case of expulsion was not a legally relevant fact
and the court examining such a complaint was under no obligation to
ascertain it. At the same time, the domestic authorities had
carefully examined and correctly dismissed that argument in the
asylum proceedings initiated by the applicant. They had arrived at
the reasoned conclusion that his application for asylum had been
motivated in reality by his fear of criminal prosecution and eventual
punishment in Uzbekistan because he had not sought refugee status
immediately after his arrival in Russia.
The
Government further submitted that, in any event, the crimes of which
the applicant was accused in his home country were not punishable
with the death penalty. In their assessment of the asylum application
the Russian authorities had taken into account that Uzbekistan had
ratified the United Nations Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment. Lastly, the
Government pointed out that the domestic courts, as a general rule,
made an assessment of the issue of the risk of ill-treatment and
referred in that respect to three court decisions in what they
referred to as “similar cases”, without providing copies
of them. In the Government’s opinion, that fact demonstrated
that the applicant did have an effective remedy in respect of his
grievance under Article 3.
2. The applicant
Referring
to recent reports on Uzbekistan issued by governmental and
non-governmental international organisations, such as the United
Nations Human Rights Committee, Human Rights Watch, Amnesty
International, and also the United States Department of State, the
applicant claimed that the use of treatment in breach of Article 3
against detainees and, in particular, persons accused of membership
of proscribed religious organisations, was endemic and pervasive in
his home country. Relying on the Court’s findings in the case
of Muminov v. Russia, cited above, the applicant submitted
that, as a supposed member of HT, he belonged to an identifiable
group in respect of which there were serious reasons for believing in
the existence of a practice of its persecution.
The
applicant further stated that in a number of recent judgments
concerning similar situations, including the cases of Abdulazhon
Isakov v. Russia (no. 14049/08, 8 July 2010) and
Karimov v. Russia (no. 54219/08, 29 July 2010),
the Court acknowledged that the problem of ill-treatment of detainees
in Uzbekistan remained enduring and that there was no indication of
any fundamental improvement in that area. Furthermore, the applicant
stressed that his fear of a risk of ill-treatment was based on his
own experience of torture at the hands of the Uzbek law-enforcement
authorities, leading to a spine injury, and that the UNHCR had found
him eligible for international protection.
The
applicant averred that his submissions concerning the risk of
ill treatment had not been properly, if at all, considered by
the domestic authorities either in the expulsion or the asylum
proceedings. In the former proceedings the courts had had no
obligation to consider the issue of the risk of ill-treatment and,
given the expedited nature of the court’s examination of the
expulsion matter, the applicant had been deprived of a meaningful
opportunity to state his case. Likewise, in the asylum proceedings,
although the courts had not been formally prevented from assessing
the matter of the risk of ill-treatment, they had chosen to disregard
the applicant’s submissions in that respect and the information
from independent sources provided by him. Moreover, in view of the
expulsion of the applicant in the Muminov case despite pending
asylum proceedings and also the insufficiently clear wording of the
relevant provisions, it could not be argued with certainty that a
pending application for asylum had a suspensive effect in the event
of an expulsion being ordered. Lastly, the applicant alleged that his
expulsion would be, in reality, a disguised extradition and that the
migration authorities and the courts had been influenced by the FSB,
who wished to expel him from the country because of his presumed
membership of HT.
B. The Court’s assessment
1. Admissibility
The
Court notes that the applicant’s complaints under Articles 3
and 13 of the Convention are not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further
notes that they are not inadmissible on any other grounds and must
therefore be declared admissible.
2. Merits
(a) Article 3 of the Convention
(i) General principles
The
Court reiterates at the outset that Contracting States have the right
as a matter of international law and subject to their treaty
obligations, including the Convention, to control the entry,
residence and expulsion of aliens (see Abdulaziz, Cabales and
Balkandali v. the United Kingdom, 28 May 1985, § 67,
Series A no. 94), and the right to political asylum is not explicitly
protected by either the Convention or its Protocols (see Salah
Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007 I
(extracts)). However, 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.
In such a case, Article 3 implies an obligation not to
deport the person in question to that country (see Saadi v. Italy
[GC], no. 37201/06, § 125, 28 February 2008).
Nonetheless, there is no question of adjudicating on or establishing
the responsibility of the receiving country, whether under general
international law, under the Convention or otherwise (see Soering
v. the United Kingdom, 7 July 1989, § 91, Series A no.
161).
The
assessment whether there are substantial grounds for believing that
the applicant faces a real risk of being subjected to treatment in
breach of Article 3 inevitably requires that the Court assess the
conditions in the receiving country against the standards of that
Convention provision (see Mamatkulov and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, § 67, ECHR 2005 I). These
standards imply that the ill-treatment the applicant alleges he will
face if returned must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this is
relative, depending on all the circumstances of the case (see
Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II).
In
determining whether it has been shown that the applicant runs a real
risk of suffering treatment proscribed by Article 3 if expelled, the
Court will examine the issue in the light of all the material placed
before it or, if necessary, material obtained proprio motu
(see Saadi, cited above, § 128). Since the nature of
the Contracting States’ responsibility under Article 3 in
cases of this kind lies in the act of exposing an individual to the
risk of ill-treatment, the existence of the risk must be assessed
primarily with reference to those facts which were known or ought to
have been known to the Contracting State at the time of the expulsion
(see Vilvarajah and Others v. the United Kingdom, 30 October
1991, § 107, Series A no. 215). However, if the
applicant has not yet been extradited or deported when the Court
examines the case, the relevant time will be that of the proceedings
before the Court (see Saadi, cited above, § 133).
It
is in principle for the applicant to adduce evidence capable of
proving that there are substantial grounds for believing that, if the
measure complained of were to be implemented, he would be exposed to
a real risk of being subjected to treatment contrary to Article 3
(see N. v. Finland, no. 38885/02, § 167, 26
July 2005). Where such evidence is adduced, it is for the Government
to dispel any doubts about it (see Ryabikin v. Russia,
no. 8320/04, § 112, 19 June 2008).
As
regards the general situation in a particular country, the Court has
held on several occasions that it can attach certain importance to
the information contained in recent reports from independent
international human-rights-protection associations such as Amnesty
International, or governmental sources, including the US State
Department (see Saadi, cited above, § 131, with further
references). At the same time, the mere possibility of ill-treatment
on account of an unsettled situation in the receiving country does
not in itself give rise to a breach of Article 3 (ibid.).
Where
the sources available to the Court describe a general situation, an
applicant’s specific allegations in a particular case require
corroboration by other evidence (see Mamatkulov and Askarov,
cited above, § 73).
(ii) Application of these principles to
the present case
The
Government argued that the domestic authorities had correctly
dismissed the applicant’s allegation that he would run a risk
of ill-treatment or torture if expelled to Uzbekistan. Relying on
various reports of international organisations and his own experience
of ill-treatment, the applicant disputed the Government’s
argument.
The
Court reiterates that in cases where an applicant provides reasoned
grounds which cast doubt on the accuracy of the information relied on
by the respondent Government, the Court must be satisfied that the
assessment made by the authorities of the Contracting State is
adequate and sufficiently supported by domestic materials as well as
by materials originating from other reliable and objective sources
such as, for instance, other Contracting or non-Contracting States,
agencies of the United Nations and reputable non-governmental
organisations (see Salah Sheekh, cited above, § 136, and
Ismoilov and Others v. Russia, cited above, § 120).
The
Court will first assess whether the applicant’s grievance
received an adequate reply at the national level (see Muminov v.
Russia, cited above).
(α) Domestic proceedings
Having
regard to the materials in its possession, the Court notes that the
applicant complained about the risk of being subjected to treatment
in breach of Article 3 in both the expulsion and asylum proceedings.
Accordingly, in making its assessment the Court will have regard to
both sets of proceedings.
Having
examined the applicant’s submissions in those proceedings, the
Court is satisfied that he consistently raised before the domestic
authorities the issue of the risk of being subjected to treatment in
breach of Article 3, advancing a number of specific and detailed
arguments. Among other things, he referred to his own experience of
ill-treatment at the hands of the Uzbek law-enforcement officials and
to their systematic use of ill treatment against detainees and,
in particular, persons accused of membership of proscribed religious
organisations, such as HT, a religious organisation banned in
Uzbekistan. In support of his allegations the applicant relied on
reports by international organisations and UN agencies concerning the
human rights situation in Uzbekistan and also enclosed a medical
certificate attesting to his spine injury (see paragraphs 24, 29-31,
33, 36 and above). However, the Court is not persuaded that the
domestic authorities made an adequate assessment of the risk of
ill treatment if the applicant was expelled to his home country.
As
regards the asylum proceedings, it emerges from the related decisions
that the migration authorities and the courts, in fact, disregarded
the applicant’s submissions concerning the risk of his being
subjected to treatment in breach of Article 3. In particular, the
decisions of the Ryazan FMS and the FMS contained no reference to
that point, despite the fact that the applicant consistently raised
the issue of the risk of ill-treatment in his initial asylum
application and when challenging the Ryazan FMS decision before the
FMS (see paragraphs 32 and 35 above).
As
to proceedings for judicial review of the decisions of the migration
authorities, the courts at two levels of jurisdiction briefly noted
that the applicant had failed to adduce convincing facts confirming
that he was persecuted on religious grounds, without providing any
further details in that respect (see paragraphs 38 and 40 above).
Even assuming that in so holding they implied that the applicant had
failed to furnish evidence of the risk of ill-treatment, in the
Court’s view, those brief statements could hardly amount to
what could be considered an adequate assessment of the risk of the
applicant being subjected to such treatment.
Having
regard to the decisions of the migration authorities and the courts
in the asylum proceedings, the Court is furthermore unable to find an
indication that they paid any attention to the bulk of evidence
concerning the human rights situation in Uzbekistan which was put
forward by the applicant and came from independent sources.
It
is furthermore noted that the applicant’s argument that he had
already been subjected to ill-treatment in connection with his
persecution for presumed membership of HT and the related medical
certificate he enclosed to support his allegations also remained
without consideration by the courts.
The
Court observes that all domestic authorities involved in the asylum
proceedings referred to the fact that the applicant had not applied
for refugee status immediately after his arrival in Russia. Moreover,
the appellate court explicitly stated that his arguments concerning
persecution were not valid because he had not applied for asylum in
due time.
In
this respect the Court points out that, whilst a person’s
failure to seek asylum immediately after arrival in another country
may be relevant for the assessment of the credibility of his or her
allegations, it is not possible to weigh the risk of ill-treatment
against the reasons put forward for the expulsion (see Abdolkhani
and Karimnia v. Turkey, no. 30471/08, § 91,
22 September 2009). The conduct of the person concerned, however
undesirable or dangerous, cannot be taken into account, with the
consequence that the protection afforded by Article 3 of the
Convention is broader than that provided for in Articles 32 and 33 of
the 1951 United Nations Convention relating to the Status of Refugees
(see Saadi, cited above, § 138, and Chahal v. the
United Kingdom, 15 November 1996, § 81, Reports of
Judgments and Decisions 1996 V).
As
regards the expulsion proceedings, the Court agrees with the
Government that in those proceedings the applicant first raised the
ill treatment issue in his appeal against the expulsion order.
However, it does not find this unreasonable, given that the applicant
became aware of the risk of being returned to his home country at the
moment he learnt about the decision ordering his expulsion to
Uzbekistan.
The
Government argued that the courts in expulsion proceedings were under
no obligation to examine claims concerning the risk of ill treatment.
Nonetheless, in dismissing the applicant’s appeal against the
expulsion order, the Ryazan Regional Court explicitly held that he
had failed to furnish “indisputable evidence” to support
his allegations of a threat to his life and health.
In
the absence of elaboration on this point by that court, the exact
meaning of its statement remains obscure. The Court considers,
however, that requesting an applicant to produce “indisputable”
evidence of the risk of ill-treatment in the requesting country would
be tantamount to asking him to prove the existence of a future event,
which is impossible, and would place on him a clearly
disproportionate burden. In this respect it reiterates its constant
case-law to the effect that what should be assessed in this type of
case are the foreseeable consequences of sending the applicant to the
receiving country (see, among other authorities, Vilvarajah and
Others, cited above, § 108).
In
sum, for the reasons stated above, the Court considers that the
domestic authorities failed to make an adequate assessment of the
risk of the applicant being subjected to torture or ill-treatment if
he were expelled to Uzbekistan.
(β) The Court’s assessment
The
Government argued that the offences of which the applicant was
accused in his home country were not punishable with the death
penalty. The Court notes, however, that the thrust of the applicant’s
complaint concerns not a fear of receiving the death penalty but the
risk of him being subjected to ill-treatment or torture if he were
expelled to Uzbekistan.
Accordingly,
it now has to assess whether there is a real risk that, if expelled
to Uzbekistan, the applicant would be subjected to treatment
proscribed by Article 3. In line with its case-law and bearing in
mind that the applicant has not yet been expelled, owing to the
indication of an interim measure under Rule 39 of the Rules of Court,
the material date for the assessment of that risk is that of the
Court’s consideration of the case.
The
Court observes in the first place that in several judgments
concerning expulsion or extradition to Uzbekistan it noted, with
reference to materials from independent sources covering the time
span between 2002 and 2007, that the practice of torture against
those in police custody was “systematic” and
“indiscriminate” (see, for example, Muminov and
Ismoilov and Others, both cited above, §§ 93
and 121 respectively, with further references). In its recent
judgments concerning the same subject, after having examined the
latest available information, the Court pointed out that there was no
concrete evidence to demonstrate any fundamental improvement in that
area (see Abdulazhon Isakov v. Russia, cited above, § 109;
Yuldashev v. Russia, no. 1248/09, § 93, 8 July 2010;
and Sultanov v. Russia, no. 15303/09,
§ 71, 4 November 2010).
82. The
Government did not argue that the situation in Uzbekistan had
improved during the period under consideration in the present case.
Having examined recent materials originating from reliable and
objective sources (see Salah Sheekh, cited above,
§ 136), the Court is also unable to find
elements which would be indicative of such an improvement. Quite the
contrary, it follows from the latest reports by Human Rights Watch,
Amnesty International and the US Department of State, as well as the
information of other organisations to which they refer in their
documents, that the use of torture and ill-treatment against
detainees in Uzbekistan is “systematic”, “unpunished”
and “encouraged” by law-enforcement and security
officers. According to those sources, despite the Uzbek authorities’
assertions that such practices had significantly decreased, reports
of torture and ill-treatment of detainees and prisoners continued
unabated (see paragraphs 46-48 above). Against this background the
Court cannot but conclude that the ill-treatment of detainees remains
a pervasive and enduring problem in Uzbekistan.
83. The
above findings concern the general situation in Uzbekistan. As
regards the applicant’s personal situation, the Court considers
it important to note the following. The applicant is wanted by the
Uzbek authorities on charges of religious extremism, separatism and
fundamentalism because of his presumed participation in the
activities of HT, a proscribed religious organisation. In its Muminov
judgment the Court considered that there were serious reasons to
believe in the existence of the practice of persecution of members or
supporters of that organisation. It found that reliable sources
affirmed the existence of a practice of torture against persons
accused of membership of HT, with a view to extracting
self-incriminating confessions and to punishing those persons, who
were perceived by public authorities to be involved in religious or
political activities contrary to State interests (judgment cited
above, § 95).
84. Having
regard to recent reports on the matter, the Court points out that
they all refer to the Uzbek authorities’ continuing persecution
of persons suspected of or charged with religious extremism,
including presumed members of HT, and state that there are credible
allegations of torture in respect of those persons, cases of deaths
in custody or situations where the athorities induced inmates to beat
their fellow detainees suspected of or charged with having committed
religious extremist offences (see paragraphs 45-48 above).
85. Whereas
it seems to follow from the reports mentioned above that the number
of convictions for HT membership dropped in the period between 2004
and 2008, it was stated that cases of convictions of individuals
associated with HT still involved credible allegations of torture
(see paragraph 45 above). In this respect it is also significant for
the Court that the Uzbek authorities have consistently refused
to allow independent observers access to detention facilities (see
paragraphs 46 and 47 above, and compare Abdolkhani
and Karimnia v. Turkey, cited
above, § 81).
The
Court also finds information concerning the Uzbek authorities’
practice of holding incommunicado individuals extradited from other
countries in connection with charges of participation in HT
disturbing and agrees that this could increase the risk of them being
tortured or ill treated (see paragraph 44 above). In view of the
existence of a valid detention order in respect of the applicant, it
is likely that he would be directly placed in custody after his
expulsion, with no access to relatives or independent observers,
which would intensify the risk of ill-treatment (see Ismoilov and
Others, cited above, § 123).
Accordingly,
in the light of evidence showing the persisting pattern of
persecution of accused members of HT, involving torture and
ill treatment, the Court considers that no concrete elements
have been produced to show any fundamental improvement in the area
concerning this particular group (compare Chahal, cited above,
§§ 102-103).
Against
this background the Court reiterates that in Saadi (cited
above, § 132) it held that where an
applicant alleges that he or she is a member of a group
systematically exposed to a practice of ill-treatment, the protection
of Article 3 enters into play when the applicant establishes, where
necessary on the basis of the information contained in recent reports
from independent international human-rights-protection associations
or governmental sources, that there are serious reasons to believe in
the existence of the practice in question and his or her membership
of the group concerned.
89. The
Court considers that this reasoning applies in the present case,
where the applicant is accused of membership of a group in respect of
which reliable sources confirm a continuing pattern of ill-treatment
on the part of the authorities, as has been stated above. Although in
such circumstances the Court will normally not insist that the
applicant show the existence of further special distingushing
features (see NA. v. the United Kingdom,
no. 25904/07, § 116, 17 July 2008), it considers it
nonetheless important to point out the following.
Before
the Russian authorities, the applicant repeatedly submitted that he
had already been subjected to persecution and ill-treatment at the
hands of the Uzbek law-enforcement authorities in connection with his
presumed membership of HT. He presented a detailed account of how the
alleged ill-treatment had occurred (compare Garayev
v. Azerbaijan, no. 53688/08, § 72,
10 June 2010), claiming that he had sustained a spine
injury as a result of it and producing a medical certificate
indicating that he suffered from the after-effects of compression
fractures of several vertebrae (see paragraph 36 above). Although the
certificate contains no indication of the date of infliction of the
injury, the Court considers that it lends further credence to the
applicant’s otherwise coherent submissions concerning his
persecution by the authorities and alleged experience of
ill-treatment, which cannot be discarded as completely without
foundation.
Furthermore,
it finds it highly significant that the office of the UNHCR, after
having interviewed the applicant and carefully examined his case,
found that as a person persecuted for his imputed political opinions
he was unable to return to Uzbekistan and that he was eligible for
international protection under its mandate (see paragraph 37 above).
In
view of what has been stated above, the Court considers that
substantial grounds have been shown for believing that the applicant
would face a real risk of treatment proscribed by Article 3, if
expelled to Uzbekistan.
In
so far as the Government may be understood to argue that that risk
could be negated because Uzbekistan had become a party to the UN
Convention against Torture, it is reiterated that the existence of
domestic laws and accession to international treaties guaranteeing
respect for fundamental rights in principle are not in themselves
sufficient to ensure adequate protection against the risk of
ill-treatment where, as in the present case, reliable sources have
reported practices resorted to or tolerated by the authorities which
are manifestly contrary to the principles of the Convention (see
Saadi, cited above, § 147).
The
Court concludes therefore that implementation of the expulsion order
against the applicant would give rise to a violation of Article 3 of
the Convention.
(b) Article 13 of the Convention
The
Court reiterates that Article 13 guarantees the availability at
national level of a remedy to enforce the substance of the Convention
rights and freedoms in whatever form they might happen to be secured
in the domestic legal order. The effect of this Article is thus to
require the provision of a domestic remedy allowing the competent
national authority both to deal with the substance of the relevant
Convention complaint and to grant appropriate relief, although
Contracting States are afforded some discretion as to the manner in
which they conform to their obligations under this provision.
Moreover, in certain circumstances the aggregate of remedies provided
by national law may satisfy the requirements of Article 13 (see,
among other authorities, Abdolkhani and
Karimnia, cited above, § 107).
For
Article 13 to apply, the complaint under a substantive provision of
the Convention must be arguable. The Court considers, and this has
not been disputed between the parties, that the applicant’s
claim under Article 3 is arguable and thus Article 13 is
applicable in the present case.
It
is further reiterated that the remedy required by Article 13 must be
effective both in law and in practice, in particular, in the sense
that its exercise must not be unjustifiably hindered by the acts or
omissions of the authorities of the respondent State (see Shamayev
and Others v. Georgia and Russia, no. 36378/02, § 447,
ECHR 2005 III). The “effectiveness” of a “remedy”
within the meaning of Article 13 does not depend on the certainty of
a favourable outcome for the applicant (see Čonka v. Belgium,
no. 51564/99, § 75, ECHR 2002 I).
The
Court also points out that, in the specific context of expulsion
cases, given the irreversible nature of the harm that might occur if
the alleged risk of torture or ill-treatment materialised and the
importance which the Court attaches to Article 3, the notion of an
effective remedy under Article 13 requires (i) independent and
rigorous scrutiny of a claim that substantial grounds exist for
believing that there was a real risk of treatment contrary to Article
3 in the event of the applicant’s expulsion to the country of
destination, and (ii) the provision of an effective possibility of
suspending the enforcement of measures whose effects are potentially
irreversible (see Muminov, cited above, § 101, with
further references).
Turning
to the circumstances of the present case, the Court takes note of the
Government’s statement that the courts in expulsion proceedings
were ill-equipped to examine claims of the risk of ill-treatment
(see paragraph 51 above). In this connection it also reiterates
its finding to the effect that, in holding that the applicant had
failed to furnish “indisputable evidence” of the risk of
ill-treatment, the Ryazan Regional Court had placed on him a
disproportionate burden of proving the existence of a future event
and had therefore, in practice, deprived him of an opportunity to
obtain a meaningful examination of his claim (see paragraph Error: Reference source not found
above).
At
the same time the Government argued that the authorities in the
asylum proceedings were better equipped to examine the applicant’s
claims concerning the risk of ill-treatment. In that respect they
referred to three decisions by the domestic courts in asylum
proceedings concerning persons other than the applicant. They also
submitted that the domestic authorities had carefully examined the
applicant’s submissions concerning the risk of ill-treatment
and had correctly dismissed them (see paragraph 52 above).
In
so far as the Government relied on the decisions of the domestic
courts concerning third persons, the Court points out that they
failed to furnish copies of the related documents. In any event, as
it has noted on several occasions, it is not called upon to review in
abstracto the compatibility of the relevant law and practice with
the Convention, but to determine whether there was a remedy
compatible with Article 13 of the Convention available to grant the
applicant appropriate relief as regards his substantive complaint
(see, among other authorities, G.H.H. and Others v. Turkey,
no. 43258/98, § 34, ECHR 2000 VIII).
The
applicant in the present case raised risk of the ill treatment
issue before the migration authorities and courts in the asylum
proceedings, making detailed submissions in that respect and
supporting his claims with reference to relevant reports of
international organisations and to his own alleged experience of
ill-treatment. In the Government’s submission, the domestic
authorities in the asylum proceedings were not prevented –
either legally or in practice – from examining his claims.
However, as has been established above, none of them conducted an
adequate and detailed examination of the applicant’s claims
(see paragraphs 70 and 72 above).
It
follows that the courts failed to rigorously scrutinise the
applicant’s claims that there was a risk that he would be
ill-treated in the event of his expulsion to Uzbekistan (compare
Abdulazhon Isakov and Yuldashev, both cited above,
§§ 137 and 111, respectively). Hence, one of the key
requirements concerning the notion of an effective remedy under
Article 13 in the specific context of expulsion (see paragraph 98
above) was not complied with in the present case.
Accordingly,
the Court concludes that there has been a violation of Article 13 of
the Convention because in the circumstances of the case the applicant
was not afforded in practice an effective and accessible remedy in
relation to his complaint under Article 3 of the Convention.
In
view of this finding the Court does not consider it necessary to
examine the remainder of the applicant’s arguments under this
head.
II. RULE 39 OF THE RULES OF COURT
106. The
Court recalls that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment no reference of the case to the Grand Chamber has been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
107. It
considers that the indication made to the Government under Rule 39 of
the Rules of Court (see above § 4) must continue in force until
the present judgment becomes final.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 10,000 euros (EUR) in respect
of non pecuniary damage for the suffering and anguish he had
endured in connection with the risk of being subjected to
ill-treatment and as a result of the actions and decisions of the
Russian authorities.
The
Government argued that the applicant’s claim was excessive and
that, if a Court was to find a violation of his Convention rights, a
finding of a violation would constitute sufficient just satisfaction.
The
Court observes that no breach of Article 3 has yet occurred in the
present case. However, it found that the decision to expel the
applicant would, if implemented, give rise to a violation of that
provision. It considers that its finding regarding Article 3 in
itself amounts to adequate just satisfaction for the purposes of
Article 41 (see Daoudi v. France, no. 19576/08, §
82, 3 December 2009, and Chahal, cited above, § 158). The
same considerations apply to the Court’s related finding
regarding Article 13 (see Gebremedhin [Gaberamadhien] v.
France, no. 25389/05, § 79, ECHR 2007 II,
and Raza v. Bulgaria, no. 31465/08, § 88, 11 February
2010).
B. Costs and expenses
The
applicant also claimed 2,694.45 pounds sterling
(GBP) for the costs and expenses incurred before the Court, of which
GBP 600 covered the services of Mr K. Koroteyev,
at the rate of GBP 150 per hour, and GBP 2,094.45 represented
translation expenses and administrative costs. He requested that the
above amounts be paid into his representatives’ account in the
United Kingdom.
113. The
Government submitted that copies of some of the invoices concerning
translation services were not stamped, and that there was therefore
no proof that the applicant had, in reality, paid those amounts.
114. According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court takes note of the Government’s
submission concerning invoices not stamped by the applicant’s
representatives. It further notes that the applicant had failed to
substantiate his claims in respect of the services of Mr Koroteyev in
that he had not submitted any related invoices or agreements.
Moreover, Mr Koroteyev’s name was not mentioned in any of the
authority forms submitted by the applicant. Against this background
and having regard to the documents in its possession and the
above criteria, the Court awards the applicant EUR 1,800,
to be paid into the representatives’ bank account in the United
Kingdom, as identified by the applicant.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application
admissible;
Holds that, if the order to expel the applicant
to Uzbekistan were to be enforced, there would be a violation of
Article 3 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
4. Decides
to continue to indicate to the Government under Rule 39 of the Rules
of Court that it is desirable in the interests of the proper conduct
of the proceedings not to expel the applicant until such time as the
present judgment becomes final or further order;
Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,800 (one thousand eight hundred
euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be paid into the
representatives’ bank account in the United Kingdom;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 8 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
