European Court of Human Rights

 

 

THIRD SECTION

CASE OF A.B. v. RUSSIA

(Application no. 34804/17)

 

 

 

 

JUDGMENT

STRASBOURG

6 July 2021

 

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

In the case of A.B. v. Russia,

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

          Georges Ravarani, President,
          Anja Seibert-Fohr,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 34804/17) 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 Turkmen national, Mr A.B. (“the applicant”), on 9 June 2017;

the decision to give notice of the application to the Russian Government (“the Government”);

the decision not to have the applicant’s name disclosed;

the decision to indicate interim measure to the respondent Government under Rule 39 of the Rules of Court;

Having deliberated in private on 15 June 2021,

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

INTRODUCTION

1.  The present case concerns the applicant’s pending removal to Turkmenistan where he allegedly faces a real risk of ill-treatment contrary to Article 3 of the Convention.

THE FACTS

2.  The applicant was born in 1973 and lives in St Petersburg. He was represented by Ms O. Tseytlina, a lawyer practising in St Petersburg.

3.  The Government were represented initially by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr A. Fedorov.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The applicant is charged in Turkmenistan with religious extremism and extremist activities. On 23 May 2016 he was arrested in Russia under an international search warrant. Subsequently, the Turkmen authorities submitted an extradition request.

6.  On 26 December 2016 the Deputy Prosecutor General of the Russian Federation authorised the applicant’s extradition to Turkmenistan. On 17 May 2017 the Supreme Court of the Russian Federation upheld that decision by a final judgment. In the separate dissenting opinion joined to the Supreme Court’s judgment, one judge argued with reference to the case of Allanazarova v. Russia (no. 46721/15, 14 February 2017) that the applicant would face a real risk of ill-treatment in case of his extradition.

7.  The applicant’s refugee status and temporary asylum requests proved to be unsuccessful.

RELEVANT LEGAL FRAMEWORK

8.  The relevant domestic and international law is summarised in the Court’s judgments of 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).

Reports on the situation in Turkmenistan

9.  The references to the relevant reports by the UN agencies and international NGOs on the situation in Turkmenistan were cited in the case of Allanazarova (cited above, §§ 40-55). Substantively similar findings were reproduced in the follow-up international reports of the Amnesty International and Human Rights Watch in 2018-20.

THE LAW

I.         ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

10.  The applicant complained under Article 3 of the Convention that the national authorities had failed to consider his claims that he would face a real risk of being subjected to ill-treatment in the event of his removal to Turkmenistan. Article 3 of the Convention reads:

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

11.  The Government contested that argument.

A.    Admissibility

12.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.   General principles

13.  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).

2.   Application of those principles to the present cases

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

14.  The Court has previously established that individuals whose criminal prosecution is pursued by the Turkmen authorities face a real risk of ill‑treatment in detention in Turkmenistan (see Allanazarova, cited above, § 76). The Court notes that the recent international reports on the situation in Turkmenistan do not indicate any significant progress in this regard (see paragraph 9 above).

15.  Turning to the present case, it is apparent that in the course of the extradition proceedings the applicant specifically argued that he as a person prosecuted for religious extremism would face a risk of ill-treatment in detention in Turkmenistan. The Court further observes that the extradition request of the Turkmen authorities clearly proves the existence of the criminal prosecution and the risk of being placed in detention.

16.  In such circumstances, the Court considers that the Russian authorities had at their disposal sufficiently substantiated complaint pointing to a real risk of ill-treatment and, therefore, the applicant presented substantial grounds for believing that he faced a real risk of ill-treatment in his country of origin.

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

17.  Having concluded that the applicant had advanced at national level a valid claim based on substantial grounds for believing that he faced a real risk of treatment contrary to Article 3 of the Convention, the Court must examine whether the authorities discharged their obligation to assess that claim adequately through reliance on sufficient relevant material.

18.  Turning to the present case, the Court considers that in the extradition proceedings the domestic authorities did not carry out a rigorous scrutiny of the applicant’s claim. The Court reaches this conclusion having considered the national courts’ laconic rejections of the applicant’s claim.

19.  The Court therefore concludes that the Russian authorities failed to assess the applicant’s claim adequately through reliance on sufficient relevant material. This failure cleared the way for the applicant’s extradition.

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

20.  Given the failure of the domestic authorities to adequately assess the applicant’s claim, the Court finds itself compelled to examine independently whether or not the applicant would be exposed to such a risk in the event of his extradition.

21.  The Court reiterates that previously it had concluded that individuals whose criminal prosecution is pursued by the Turkmen authorities face a real risk of ill-treatment in detention in Turkmenistan (see Allanazarova, cited above, § 76, and Kolesnik v. Russia, no. 26876/08, § 74, 17 June 2010).22.  The Court notes that neither the independent reports (see paragraph 9 above) nor the parties’ submissions in the present case provide at this moment a sufficient basis for a conclusion that individuals in the applicant’s situation would no longer run such a risk.

(d)    Conclusion

23.  The foregoing considerations are sufficient to enable the Court to conclude that there would be a violation of Article 3 of the Convention if the applicant were to be extradited to Turkmenistan.

II.      Interim measure under rule 39 of the rules of court

24.  On 16 May 2017 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be removed from Russia to Turkmenistan for the duration of the proceedings before the Court.

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

26.  Accordingly, the Court considers that the measure indicated to the Government under Rule 39 of the Rules of Court comes to an end.

III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  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.”

28.  The applicant claimed non-pecuniary damage in respect of the violation of Article 3 of the Convention, leaving the award at the discretion of the Court, and 400,000 Russian roubles (approximately 4,430 euros (EUR)) in respect of costs and expenses.

29.  The Government considered in respect of the claim for non‑pecuniary damage that the award should follow the Court’s well‑established case-law and in respect of the claim for costs and expenses that it was excessive and unsubstantiated.

30.  The Court, having regard to the conditional nature of the violation of the applicant’s rights in the present case, considers that the finding of a violation in itself constitutes sufficient just satisfaction in the present case (see F.G. v. Sweden, cited above, § 160). As regards the claim for costs and expenses the Court takes note of the principle that the award should be made insofar as the costs incurred are necessary and reasonable and awards EUR 2,500, plus any tax that may be chargeable, to be payable directly to the applicant’s representative Ms O. Tseytlina.

31.  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.      Declares the complaint admissible;

2.      Holds that there would be a violation of Article 3 of the Convention in case of the applicant’s removal to Turkmenistan;

3.      Holds that the finding that there would be a violation of Article 3 of the Convention in case of the applicant’s return to Turkmenistan constitutes in itself sufficient just satisfaction for the non‑pecuniary damage sustained by the applicant;

4.      Holds

(a)  that in respect of costs and expenses the respondent State is to pay directly to the applicant’s representative, within three months, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                Georges Ravarani
Deputy Registrar                                                                       President