European Court of Human Rights

 

 

THIRD SECTION

CASE OF DALABAYEV AND MAGARAMOV v. RUSSIA

(Applications nos. 13927/21 and 16138/21)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

17 January 2023

 

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

In the case of Dalabayev and Magaramov v. Russia,

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

          Jolien Schukking, President,
          Peeter Roosma,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants, nationals of Uzbekistan and Turkmenistan, accordingly, listed in the appended table, (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Articles 3 and 8 of the Convention to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the applications;

the decisions to give priority (Rule 41 of the Rules of Court) to the applications and the decisions to indicate interim measures to the respondent Government under Rule 39 of the Rules of Court;

the parties’ observations;

Having deliberated in private on 6 December 2022,

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

SUBJECT MATTER OF THE CASE

1.  The cases concern risks associated with the applicants’ removal to Uzbekistan and Turkmenistan, the countries of their respective nationalities.

2.  The list of the applicants, relevant details of their individual cases and the complaints communicated to the Government are set out in the appendix.

3.  In 2000 and 2015 criminal proceedings were initiated in respect of the applicants in their countries of origin; the applicant in the case no. 13927/21 was charged with religious extremist crimes in Uzbekistan, and the applicant in the case no. 16138/21 with aggravated murder in Turkmenistan.

4.  They were apprehended in Russia later on and the Russian authorities adopted final decisions to extradite the applicants.

5.  On 10 September 2019 the Court decided to strike out in accordance with Article 37 § 1 (a) of the Convention the earlier case lodged by the applicant in the case no. 13927/21 where the same issues have been raised, with reference to serious concerns about the authenticity of the applicant’s signatures.

6.  On 15 and 30 March 2021 the Court decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be removed from Russia for the duration of the proceedings before it.

THE COURT’S ASSESSMENT

I.        JOINDER OF THE APPLICATIONS

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

II.     COUNTRY INFORMATION

8.  The relevant information on situation in Uzbekistan was most recently reiterated in A.K. and Others v. Russia [Committee], nos. 38042/18 and 2 others, §§ 19-20, 18 May 2021. It was noted with reference to “Uzbekistan 2019 World Report” issued by Human Rights Watch that certain promising steps had been taken to reform the country’s human rights record, but that many reforms had yet to be implemented.

9.  In respect of the situation in Turkmenistan the Court concluded that it remained with no significant progress since adoption of the judgement Allanazarova v. Russia, no. 46721/15, 14 February 2017 (see A.B. v. Russia [Committee], no. 34804/17, § 9, 6 July 2021).

III.   ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

10.  The Court notes that, contrary to the Government’s objection, the application no. 13927/21 lodged after the applicant’s earlier case was struck out of the Court’s list of cases (see paragraph 5 above), cannot be dismissed as substantially the same as a matter that has already been examined by the Court pursuant Article 35 § 2 (b) of the Convention. The earlier application was struck out due to serious concerns about the authenticity of the applicant’s signatures and, therefore, lack of proof that the applicant wished to pursue his application. The issues raised under Article 3 of the Convention have never been examined on merits by the Court and there was no final resolution of the case (see Sürmeli v. Turkey (dec.), no. 75529/01, 29 April 2004, and compare with Kezer and Others v. Turkey (dec.), 58058/00, 5 October 2004).

11.  At present, the Court does not have doubts about the authenticity of the applicant’s signatures. The application form is signed by the applicant himself and contains the original of his signature in the respective box authorising the representative to act on his behalf. The case file also contains a copy of the applicant’s passport, a copy of the valid power of authority with specific authority to apply to the Court certified by a notary in Russia, signed by the applicant, and a copy of the applicant’s handwritten statement dated 14 February 2022 confirming the authenticity of his signatures. The Government’s objections on account of inability to establish the authenticity of the signatures and of the applicant’s failure to submit a duly certified power of attorney are not supported by any evidence.

12.  The Court further observes that, as long as the decisions ordering the applicants’ removals have not been enforced, the six-month period has not yet started to run for them (see M.Y.H. and Others v. Sweden, no. 50859/10, §§ 38-41, 27 June 2013). Therefore, the Government’s objection about the application no. 13927/21 being belated should be dismissed.

13.  Finally, the Court cannot accept the Government’s objection in respect of  application no. 16138/21 as to non-exhaustion of the domestic remedies due to the applicant’s failure to apply for refugee status or temporary asylum. The applicant’s grievances were addressed in the extradition proceedings and he was not required to raise the same issues in refugee status or temporary asylum proceedings since when a remedy has been pursued, the use of another remedy that has essentially the same objective is not required (see M.D. and Others v. Russia, nos. 71321/17 and 9 others, § 66, 14 September 2021).

14.  The complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

15.  The general principles concerning application of Article 3 have been summarised in F.G. v. Sweden [GC], no. 43611/11, §§ 111-27, ECHR 2016, and in the context of removals from Russia to Uzbekistan and Turkmenistan in Mamazhonov v. Russia, no. 17239/13, §§ 127-65, 23 October 2014, and in Allanazarova, cited above, §§ 67-83, respectively.

16.  The Court has previously established that individuals against whom the Uzbek authorities brought charges of religiously or politically motivated crimes constituted a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to Uzbekistan (see Mamazhonov, §§ 138-65, and A.K. and Others v. Russia, §§ 45-46, both cited above). Also, all 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 A.B. v. Russia, cited above, § 14).

17.  It is apparent from the material in the applicants’ case files that in the course of the extradition proceedings they specifically argued, with reference to the Court’s case-law, reports of reputable international organisations and NGOs, that they faced a risk of ill-treatment in their countries of origin.

18.  The documents relating to the criminal proceedings in Uzbekistan were clear as to their basis, namely that the applicant in the case no. 13927/21 was accused of religiously motivated crimes. Furthermore, as follows from the facts of the case, the first instance court initially annulled the extradition order referring, inter alia, to the applicant being a part of the vulnerable group systematically exposed to ill-treatment in the country of origin.

19.  The Court observes that the extradition request of the Turkmen authorities clearly proves existence of the criminal prosecution of the applicant in the case no. 16138/21 and the risk of him being placed in detention in the event of removal.

20.  In such circumstances, the Court considers that the Russian authorities had at their disposal sufficiently substantiated complaints pointing to a real risk of ill-treatment in the applicants’ countries of origin.

21.  Upholding the extradition orders, the domestic courts merely referred to the assurances given by the Uzbek and Turkmen authorities - that appear stereotyped and were not assessed against the standards elaborated by the Court (see Khasanov and Rakhmanov v. Russia [GC], nos. 28492/15 and 49975/15, § 101, 29 April 2022; Abdulkhakov v. Russia, no. 14743/11, §§ 149-50, 2 October 2012; and Allanazarova, cited above, § 80), - improvement of the human rights situation in Uzbekistan and to common criminal nature of the charges brought by the Turkmen authorities, without in-depth analysis of the situation in the destination countries in light of the Court’s abundant case-law. Therefore, the Russian authorities failed to conduct rigorous assessment of the risk of the applicants’ ill-treatment in their countries of origin.

22.  Compelled to independently examine whether or not the applicants would be exposed to a risk of ill-treatment in the event of their removal, the Court notes that nothing in the parties’ submissions indicates that there have been any improvements that may warrant the Court departing from its earlier findings on the matter. Certain positive changes in respect of the human rights situation in Uzbekistan indicated by the Court earlier (see paragraph 8 above) were, however, not sufficient for a conclusion that the persons prosecuted for religiously motivated crimes no longer run such a risk (see, for similar assessment, Yusupov v. Russia [Committee], no. 30227/18, § 50, 1 December 2020, and A.K. and Others v. Russia, cited above, § 45; and for general principles, Khasanov and Rakhmanov, cited above, § 108).

23.  Therefore, the Court finds that there would be a violation of Article 3 of the Convention if the applicants were to be returned to their respective countries of origin.

IV.  OTHER COMPLAINTS

24.  The applicant in the case no. 16138/21 also complained under Article 8 of the Convention. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

V.     RULE 39 OF THE RULES OF COURT

25.  The Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final. Accordingly, the measures indicated to the Government under Rule 39 come to an end.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  The applicants left determination of the compensation of non‑pecuniary damage to the Court’s discretion.

27.  The applicant in the case no. 13927/21 claimed, in total, 1,014,800 Russian roubles (RUB) in respect of costs and expenses incurred before the domestic courts and the Court (RUB 1,005,000 or 11,773.57 euros (EUR) for legal fees and RUB 9,800 or EUR 114.81 for postal expenses). The Government considered the claims for costs and expenses to be unfounded and excessive.

28.  The Court considers that finding that there would be a violation of Article 3 of the Convention if the applicants were to be returned to their respective countries of origin constitutes sufficient just satisfaction in respect of any non‑pecuniary damage suffered by the applicants (see, to a similar effect, J.K. and Others v. Sweden [GC], no. 59166/12, § 127, ECHR 2016).

29.  As to the costs and expenses, the applicant in case no. 13927/21 submitted copies of legal services agreement, act of provided services and postal invoices in support of his claims. 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 1,600 to the applicant in case no. 13927/21, covering costs and expenses under all heads. The payment should be made to the bank account of either of the applicant’s two representatives before the Court, Mr Bakhrom Khamroyev or Ms Zukhra Khamroyeva.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the complaints under Article 3 of the Convention admissible;

3.      Holds that there would be a violation of Article 3 of the Convention if the applicants were to be returned to their respective countries of origin;

4.      Holds that there is no need to examine the admissibility and merits of the complaint under Article 8 of the Convention in the application no. 16138/21;

5.      Holds that the finding that there would be a violation of Article 3 of the Convention constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants;

6.      Holds

(a)  that the respondent State is to pay the applicant in case no. 13927/21, within three months, EUR 1,600 (one thousand six hundred euros) in respect of costs and expenses, plus any tax that may be chargeable, the payment of which should be made to the bank account of either of the applicant’s representatives before the Court, Mr Bakhrom Khamroyev or Ms Zukhra Khamroyeva;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Olga Chernishova                                               Jolien Schukking
          Deputy Registrar                                                      President

 

 

APPENDIX