European Court of Human Rights

 

THIRD SECTION

CASE OF S.B. AND S.Z. v. RUSSIA

(Applications nos. 65122/17 and 13280/18)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

8 October 2019

 

This judgment is final but it may be subject to editorial revision.

In the case of S.B. and S.Z. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 September 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in two applications (nos. 65122/17 and 13280/18) 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 a Tajik national, Mr S.B. and an Uzbek national Mr S.Z. (“the applicants”), on 4 September 2017 and 19 March 2018 respectively.

2.  The applicants were represented by the lawyers indicated in the appended table. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3.  In the case S.Z. v. Russia, no. 13280/18, on 19 March 2018 the applicant’s request for interim measure preventing his removal to Uzbekistan, his country of origin, was granted by the Court under Rule 39 of the Rules of Court.

4.  The applicants’ cases were further granted priority (Rule 41) and confidentiality (Rule 33) and the applicants were granted anonymity (Rule 47 § 4).

5.  The applicants submitted complaints under Articles 3 and 13 of the Convention. On 11 October 2018 and 3 September 2018 respectively notices of the above complaints were given to the Government and the remainder of the applications declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6.  The applicants are nationals of Tajikistan and Uzbekistan. Their initials, dates of birth, the dates on which their applications were introduced, application numbers, as well as the particulars of the domestic proceedings and other relevant information are set out in the Appendix.

7.  On various dates they were charged in their countries of origin with religious and politically motivated crimes, their pre-trial detentions were ordered in absentia, and international search warrants were issued by the authorities.

8.  Subsequently, the Russian authorities took final decisions to extradite or to expel the applicants, despite their consistent claims that in the event of return to their countries of origin they would face a real risk of being subjected to treatment contrary to Article 3 of the Convention.

II. RELEVANT DOMESTIC LAW AND PRACTICE

9.  The relevant domestic and international law is summarised in the Court’s judgments on removals from Russia to Tajikistan and Uzbekistan (see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 70‑101, ECHR 2013 (extracts), and Akram Karimov v. Russia, no. 62892/12, §§ 69-105, 28 May 2014).

III. REPORTS ON TAJIKISTAN AND UZBEKISTAN

10.  The references to the relevant reports by the UN agencies and international NGOs on the situation in Tajikistan were cited in the case of K.I. v. Russia (no. 58182/14, §§ 2-28, 7 November 2017) and on the situation in Uzbekistan in the cases of Kholmurodov v. Russia (no. 58923/14, §§ 46-50, 1 March 2016), and T.M. and Others v. Russia ([Committee], no. 31189/15, § 28, 7 November 2017).

11.  In respect of Uzbekistan 2019 World Report by Human Rights Watch indicated that there were certain promising steps to reform the country’s human rights record; however, many reforms are yet to be implemented. It further stated that a limited number of persons imprisoned on politically motivated charges had been released in 2016-2018. Furthermore, isolated incidents of security agency officers sentenced for torture and death in custody were cited. Amnesty International Report 2017/2018 reflected similar trends, including judicial independence and effectiveness as the priorities set by the authorities for the systemic reform. At the same time the report stressed that the authorities continued to secure forcible returns, including through extradition proceedings, of Uzbekistani nationals identified as threats to the “constitutional order” or national security.

12.  In respect of Tajikistan World Report by Human Rights Watch indicated that the authorities continued to exert pressure on political and religious dissent. However, it also noted that a certain number of persons extradited from Russia had been pardoned following their withdrawal from religious movements. Amnesty International Report 2017/2018 stated that restrictions were still used to silence critical voices and cited a case of a human rights lawyer allegedly tortured in detention.

THE LAW

I. JOINDER OF THE APPLICATIONS

13.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. PRELIMINARY CONSIDERATIONS

14.  The Court notes that in the case S.B. v. Russia, no. 65122/17 the applicant’s representatives first addressed the Court on 4 September 2017 seeking to stay his removal from Russia, at the time when the applicant’s deportation had been in progress. It further notes that the applicant was deported to Tajikistan on 4 September 2017, i.e. prior to submitting an application form on 1 March 2018. Lastly, it notes that the application form was accompanied by the authority forms, which were signed by the applicant on 14 June 2017 and his representatives on 1 March 2018.

15.  Therefore the Court must satisfy itself that the applicant’s representatives in the case S.B. v. Russia, no. 65122/17 had the power to represent him and remained in contract with him throughout the proceedings before the Court.

16.  It is well-established in the Court’s case-law that where applicants choose to be represented under Rule 36 § 1 of the Rules of Court, rather than lodging the application themselves, Rule 45 § 3 requires them to produce a written authority to act, duly signed. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim, within the meaning of Article 34, on whose behalf they purport to act before the Court (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 102, ECHR 2014).

17.  An applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but 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 (V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 35, 17 November 2016).

18.  In respect of the representatives’ power to represent the applicant the Court observes that the genuine nature of his signatures on the authority forms is not disputed.

19.  The Court notes with attention, but dismisses, the argument presented by the Government in respect of the time-lapse of several months between the applicant signing the authority forms on 14 June 2017 and the representatives on 1 March 2018. Patently an interval of almost nine months is inopportune and highly irregular. The Court is mindful and earnestly concerned by the ambiguity created by that practice. However, this fact alone cannot cast doubt on the authenticity of the forms or the validity of the applicant’s wish to institute the proceedings with the assistance of his representatives. In this regard the Court observes that the authority forms were signed on the same day the applicant’s father urged them to pursue the proceedings in the applicant’s case.

20.  In respect of the representatives remaining in contact with the applicant, the Court notes that after the applicant’s deportation they had confronted evident obstacles in maintaining such contact. Even more so, given that the applicant’s access to his lawyer and relatives in Tajikistan is apparently restricted. However, the representatives kept in contact with the applicant’s father and his lawyer in Tajikistan and presented documented proof of that to the Court. Having regard to the circumstances of the present case the Court may reasonably reach a conclusion that no issue of loss of contact between the applicant and his representatives arises in this case.

21.  Accordingly, the Court does not find any grounds preventing it from examining the admissibility and merits of the case S.B. v. Russia, no. 65122/17.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22.  The applicants complained under Article 3 of the Convention that the national authorities had failed to consider their claims about a real risk of being subjected to ill-treatment in the event of removal to their respective countries of origin. Article 3 of the Convention reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

23.  The Government contested that argument.

A.    Admissibility

24.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

25.  The relevant general principles concerning the application of Article 3 have been summarised by the Court in the judgment in the case of F.G. v. Sweden ([GC], no. 43611/11, §§ 111-27, ECHR 2016) and in the context of removals from Russia to Central Asian states in Mamazhonov v. Russia (no. 17239/13, §§ 127-35, 23 October 2014).

(a)    Existence of substantial grounds for believing that the applicant faces a real risk of ill-treatment

26.  The Court has previously established that the individuals whose extradition was sought by either Tajik or Uzbek authorities on charges of religiously or politically motivated crimes constituted vulnerable groups facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to their respective countries of origin (see Mamazhonov, cited above, § 141, and K.I. v. Russia, no. 58182/14, § 36, 7 November 2017).

27.  It is apparent that documents from the Tajik and Uzbek authorities, i.e. the extradition requests, the bills of indictment and the detention orders, were clear as to their basis - the applicants were accused of religiously and politically motivated crimes. The Tajik and Uzbek authorities thus directly identified them with the groups whose members have previously been found to be at real risk of being subjected to proscribed treatment.

28.  In the case S.B. v. Russia, no. 65122/17 the Court notes that apparently the relevant arguments were raised in extradition and refugee status proceedings. As regards the deportation proceedings, only three days (two of them falling on a weekend) passed between adoption of a deportation decision and its enforcement. Given this time-frame the Court cannot reproach the applicant for failing to raise the above claims. Given the extent and the well-established case-law of this Court on the matter, it is not unreasonable to presume that the Russian authorities ordering the applicant’s deportation should have been aware of the above risks.

29.  In the case S.Z. v. Russia, no. 13280/18 the applicant consistently and specifically argued in the course of the extradition and expulsion proceedings that he had been prosecuted for religious extremism and faced a risk of ill-treatment.

30.  In such circumstances, the Court considers that the Russian authorities had at their disposal sufficient indications pointing to a real risk of ill-treatment.

31.  The Court is therefore satisfied that the Russian authorities had substantial grounds for believing that the applicants faced a real risk of ill‑treatment in their countries of origin.

(b)    Duty to assess claims of a real risk of ill-treatment through reliance on sufficient relevant material

32.  Having regard to the above conclusion, the Court must examine whether the authorities discharged their obligation to assess these risks adequately through reliance on sufficient relevant material.

33.  Turning to the present cases, the Court considers that in the extradition and expulsion proceedings the domestic authorities did not carry out a rigorous scrutiny of the real risk of the applicants’ ill‑treatment in their home countries. The Court reaches this conclusion having considered the national authorities’ simplistic rejections of the applicants’ claims or outright failure to examine the existing and well-known risks.

34.  The Court therefore concludes that the Russian authorities failed to assess the relevant risks adequately through reliance on sufficient relevant material. This failure cleared the way for the applicants’ removals.

(c)     Existence of a real risk of ill-treatment or danger to life in their countries of origin

35.  Given the failure of the domestic authorities to adequately assess the above-mentioned risk of ill-treatment, the Court finds itself compelled to examine independently whether or not the applicants are exposed to such a risk in the event of their removal to their countries of origin.

36.  Court reiterates that previously it had consistently concluded that the removal of an applicant charged with religiously and politically motivated crimes in Uzbekistan and in Tajikistan exposes that applicant to a real risk of ill-treatment in the country of origin (see e.g. Mamazhonov, cited above; Kholmurodov v. Russia, no. 58923/14, 1 March 2016; K.I. v. Russia, cited above; T.M. and Others v. Russia, [Committee], no. 31189/15, 7 November 2017; and B.U. and Others v. Russia, nos. 59609/17, 74677/17, 76379/17, 22 January 2019).

37.  While the Court notes with attention the cautious indications of improvement included in the independent reports (see paragraphs 11-12, above), nothing in the parties’ submissions in the present cases or the relevant material from independent international sources provides at this moment a sufficient basis for a conclusion that the persons prosecuted for religiously and politically motivated crimes no longer run such a risk.

38.  In this regard the Court notes that the applicant in the case S.B. v. Russia, no. 65122/17 was deported to Tajikistan on 4 September 2017, while the applicant in the case S.Z. v. Russia, no. 65122/17 still remains in Russia.

(d)    Conclusion

39.  The foregoing considerations are sufficient to enable the Court to conclude (a) that in the case S.B. v. Russia, no. 65122/17 there has been a violation of Article 3 of the Convention on account of the applicant’s deportation to Tajikistan, and (b) that in the case S.Z. v. Russia, no. 65122/17 there would be a violation of Article 3 of the Convention if the applicant was to be removed to Uzbekistan.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

40.  The applicant in the case S.B. v. Russia, no. 65122/17 also submitted a complaint under Article 13 of the Convention in conjunction with the above complaint under Article 3 of the Convention.

41.  However, having regard to the facts of the case, the submissions of the parties and its above finding under Article 3 of the Convention, the Court considers that it has examined the main legal questions raised in the above application and that there is no need to give a separate ruling on the remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).

V. RULE 39 OF THE RULES OF COURT

42.  In the case S.Z. v. Russia, no. 13280/18, on 19 March 2018 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be removed to Uzbekistan for the duration of the proceedings before the Court.

43.  In this connection the Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final.

44.  Accordingly, the Court considers that the measures indicated to the Government under Rule 39 of the Rules of Court come to an end.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45.  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

46.  The applicant in the case S.B. v. Russia, no. 65122/17 claimed 30,000 euros (EUR) in respect of non-pecuniary damage. The applicant in the case S.Z. v. Russia, no. 13280/18 claimed EUR 24,927.59 in respect of pecuniary and non-pecuniary damage (EUR 9,927.59 and 15,000 respectively).

47.  The Government in the case S.B. v. Russia, no. 65122/17 left the issue at the discretion of the Court. In the case S.Z. v. Russia, no. 13280/18 they considered the claim of pecuniary damage unsubstantiated.

48.  In the light of the nature of the established violations of Article 3 of the Convention and the specific facts of the present case, the Court considers that finding of the above violation of Article 3 of the Convention constitutes sufficient just satisfaction in respect of any non-pecuniary damage suffered (see, to similar effect, J.K. and Others v. Sweden [GC], no. 59166/12, § 127, ECHR 2016).

49.  As regards the applicant’s claim for pecuniary damage in the case S.Z. v. Russia, no. 13280/18, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

B.     Costs and expenses

50.  The applicant in the case S.B. v. Russia, no. 65122/17 also claimed EUR 3,000 for the costs and expenses incurred before the Court.

51.  The Government stated that the above amount should be reduced given the experience of the representatives in similar cases and the reliance on the well-established case-law of the Court.

52.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court. This sum should be payable directly to the applicant’s representatives.

53.  The applicant in the case S.Z. v. Russia, no. 13280/18 did not submit any claim for the costs and expenses and, therefore, there is no call to award him any sum in this regard.

C.    Default interest

54.  The Court considers it appropriate that the default interest rate 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,

1.      Decides to join the applications;

2.      Declares the complaint under Article 3 of the Convention concerning a real risk of ill-treatment in the event of the applicants’ removal to their countries of origin admissible;

3.      Holds that there has been a violation of Article 3 of the Convention in the case S.B. v. Russia, no. 65122/17;

4.      Holds that there would be a violation of Article 3 of the Convention if the applicant in the case S.Z. v. Russia, no. 132801/8 was to be removed to his country of origin;

5.      Holds that in the case S.B. v. Russia, no. 65122/17 there is no need to examine the complaint under Article 13 of the Convention;

6.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;

7.      Holds

(a)   that in respect of costs and expenses in the case S.B. v. Russia, no. 65122/17 the respondent State is to pay EUR 1,500, plus any tax that may be chargeable, directly to the applicant’s representatives, within three months, and that the above amount is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

8.      Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 8 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                  Alena Poláčková
       Registrar                                                                              President

APPENDIX

No.	Application no., lodged on, application title, date of birth, nationality, represented by	Dates of detention and release	Removal proceedings (type, progress, outcome)	Refugee and/or temporary asylum proceedings	Other relevant information
1.	65122/17 04/09/2017 S.B. v. Russia 13/04/1989 Tajikistan   Ms D. Trenina Ms E. Davidyan Mr K. Zharinov	Detention pending extradition 3 March 2017 – arrested and subsequently detained 2 September 2017 – released   Detention pending deportation 2 September 2017 – arrest 4 September 2017 - deportation to Tajikistan	Extradition proceedings 4 April 2016 – international search warrant and detention order in absentia issued by Tajik authorities 4 March 2017 – detained pending extradition 10 April 2017 – extradition request on charges of extremism (faxed on the above date to the Russian authorities, dated 12 July 2016)   Deportation proceedings 13 June 2016 - the applicant’s stay in Russia declared undesirable by the Ministry of Justice (the applicant was allegedly not informed of it, the applicant’s representative learnt about it on 27 October 2017) 1 September 2017 – deportation ordered by the migration authority of Moscow 4 September 2017 - deportation to Tajikistan	Refugee status proceedings 14 June 2017 – the applicant lodged an asylum request	4 September 2017 - the applicant’s representatives were allegedly mis‑informed about the hearing on the applicant’s expulsion in Babushkinskiy District Court of Moscow   4 September 2017 – the applicant’s representatives submit a request for an interim measure seeking to stay his deportation   4 September 2017 - the applicant was deported to Tajikistan   9 November 2017 - the applicant was convicted of extremism and sentenced to five years’ imprisonment   15 December 2017 - the applicant was transferred to a penal facility to serve his sentence   28 February 2018 – the applicant’s lawyer in Tajikistan submitted a written report on his actions to Ms D. Trenina. According to that report on 5 and 27 February 2018 the applicant’s lawyer was denied visits to the applicant. Further, he stated that in reply to the request for medical examination of the applicant, a certificate from the medical service of the penal facility was presented. The certificate stated that the applicant had not asked for any medical assistance   1 March 2018 – the applicant’s father made a handwritten affidavit in Russia. It narrated the events on the days of his son’s deportation, as well as unsuccessful attempts of the applicant’s mother to gain access to him in Tajikistan. He further requested an application form to be submitted to the Court   1 March 2018 – Ms D. Trenina informed the Court that the representatives maintain contact with the applicant’s father and referred to the above affidavit. She further stated that contact with the applicant himself is prevented by the Tajik authorities   1 March 2018 – the application form submitted to the Court; the integrated authority forms have the applicant’s signature dated 14 June 2017 and his representatives’ signatures dated 1 March 2018
2.	13280/18 19/03//2018 S.Z. v. Russia 25/06/1995 Uzbekistan   Mr B. Khamroyev Ms T. Shirokov	Detention pending extradition 11 November 2015 – arrested and subsequently detained 16 March 2017 - released due to annulment of extradition authorisation     Detention pending expulsion 11 February 2018 – arrest and subsequent detention The applicant is still in detention	Extradition proceedings Unspecified date – charged with extremist crimes by the Uzbek authorities, international search warrant and detention order in absentia issued 4 December 2015 - extradition request by the Uzbek authorities 8 August 2016 - extradition authorised by the Deputy Prosecutor General 16 March 2017 - extradition authorisation annulled by the Moscow Regional Court 18 May 2017 - lower court’s decision upheld by the Supreme Court of the Russian Federation 24 January 2018 - lower court’s decisions annulled on supervision and sent for reconsideration by the Presidium of the Supreme Court of the Russian Federation 2 April 2018 - extradition authorisation upheld by the Moscow Regional Court   Expulsion proceedings 13 February 2018 - administrative removal ordered by the Zyuzinskiy District Court of Moscow 20 March 2018 - lower court’s decision upheld by the Moscow City Court	Temporary asylum proceedings 4 September 2017 - temporary asylum refused by the migration authorities	19 March 2018 - interim measure preventing the applicant’s removal