N.M. v. RUSSIA and 3 other applications (European Court of Human Rights)

Communicated on 9 January 2019

THIRD SECTION

Application no.29343/18
N.M. against Russia
and 3 other applications
(see list appended)

STATEMENT OF FACTS

The applicants’personal details and the information concerning their applications, the particulars of the domestic proceedings and other relevant information are set out in the Appendix.

A.  Applications nos. 29343/18 and 41701/18

Two applicants, N.M. and K.K. (applications nos. 29343/18 and 41701/18), were charged, respectively, with religious and politically motivated crimes, their pre-trial detention was ordered in absentia, and international search warrants were issued by the authorities of the countries requesting their extradition. They were detained in Russia pending their extradition.

The Russian authorities took final decisions to extradite N.M. and K.K., despite their consistent claims that in the event of their removal they would face a real risk of treatment contrary to Article 3 of the Convention.

On 25 June and 4 September 2018, respectively, the applicants’ requests for the application of an interim measure under Rule 39 of the Rules of Court were granted. It was indicated to the Russian Government that N.M. should not be removed from Russia for the duration of the proceedings before the Court and that K.K. should not be removed until 11 September 2018. It was further decided that the applicants’ identities would not be disclosed to the public (Rule 47 § 4) and that the applications should be granted priority treatment (Rule 41).

However, on 6 September 2018 K.K. left Russia for Kyrgyzstan in the circumstances which are disputed by the parties. On 7 September 2018 the Court decided not to prolong the interim measure in respect of K.K.

B.  Applications nos. 43638/18 and 45099/18

Mr Oganezov and Mr Ozherelyev(applications nos. 43638/18 and 45099/18) were detained after the national authorities had issued decisions that declared their presence in Russia “undesirable” and ordered their deportation. However, it appears that the applicants were not deported because the authorities of the countries of alleged destination (Georgia and Ukraine, respectively) informed the Russian migration service that the applicants were not nationals of their countries.

COMPLAINTS

The applicant N.M. (application no. 29343/18) complains that he would face a real risk of being subjected to treatment in breach of Article 3 of the Convention in the event of his removal to Uzbekistan.

The applicant K.K. (application no. 41701/18) complains that the Russian authorities exposed him to a real risk of being subjected to treatment in breach of Article 3 of the Convention by deporting him to Kyrgyzstan.

Both N.M. and K.K. complain that they did not have an effective domestic remedy in respect of their complaints under Article 3 of the Convention, in breach of Article 13 of the Convention.

The applicants in the applications nos. 41701/18, 43638/18 and 45099/18 complain under Article 5 § 1 (f) of the Convention about the alleged unlawfulness of their detention.

Lastly, K.K. (application no. 41701/18) complains about his deportation in breach of an interim measure indicated by the Court, which resulted in hindrance by the State of the effective exercise of the applicant’s right of application enshrined in Article 34 of the Convention.

QUESTIONS TO THE PARTIES

Application no. 29343/18 (N.M. v. Russia)

1.  Would N.M. face a real risk of being subjected to treatment in breach of Article 3 of the Convention in the event of removal to Uzbekistan?

2.  In the domestic proceedings, did the relevant national authorities adequately assess N.M.’s claims that he would be exposed to a risk of being subjected to torture or to inhuman or degrading treatment if removed to Uzbekistan, as required by Article 13 of the Convention?

Application no. 41701/18 (K.K. v. Russia)

1.  What was/were the applicant’s location(s) between 3 September (after he was released from the pre-trial detention) and 6 September 2018 (when he appeared at the Domodedovo International Airport)? If the applicant was detained, was his detention compatible with the requirements of Article 5 § 1 (f) of the Convention?

2.  Did K.K. leave Russia voluntarily on 6 September 2018? What were the circumstances in which K.K. write his statement confirming his wish to leave Russia for Kyrgyzstan? Was K.K. allowed contact with his lawyer and/or his relatives by phone or in person before his departure?

3.  Were any injections administered to K.K. or was he given any medicine and/or other substances/sedatives against his will between 3 and 6 September 2018?

If K.K.’s departure for Kyrgyzstan on 6 September 2018 was not voluntary,

4.  Did his removal to Kyrgyzstan put him at real risk of being subjected to treatment in breach of Article 3 of the Convention?

5.  In the domestic proceedings, did the relevant national authorities adequately assess K.K.’s claims that he would be exposed to a risk of being subjected to torture or to inhuman or degrading treatment if removed to Kyrgyzstan, as required by Article 13 of the Convention?

6.  Was the K.K.’s removal in breach of an interim measure indicated by the Court? Has there been accordingly a hindrance by the State of the effective exercise of the applicant’s right of application enshrined in Article 34 of the Convention?

6.1.  In particular, on or before 6 September 2018 were the domestic authorities (migration officials, police officers at the airport(s) and/or officers of the Federal Security Service) that were handling the applicant’s removal notified by the applicant’s lawyers (by phone, email or other available means of communication) that the Court had applied an interim measure in respect of the applicant and instructed the domestic authorities not to remove him to Kyrgyzstan until 11 September 2018? If so, what did they do to comply with the Court’s measure? If not, why did they not receive said notification?

6.2.  Was the applicant administered any injections or given any medicine and/or other substances/sedatives against his will between 3 and 6 September 2018?

7.  Was the applicant removal in breach of an interim measure indicated by the Court? Has there been accordingly a hindrance by the State of the effective exercise of the applicant’s right of application enshrined in Article 34 of the Convention?

The Government are invited to submit any documentary evidence concerning and explaining the circumstances preceding K.K.’s departure on 6 September 2018.

Applications nos. 43638/18 and 45099/18

1.  Having regard to the Court’s conclusion in the case of Azimov v. Russia (Azimov v. Russia, no. 67474/11, 18 April 2013), was the applicants’ detention compatible with the requirements of Article 5 § 1 (f) of the Convention in terms of the foreseeability of the length of such detention?

2.  Have the applicants exhausted all effective domestic remedies available to them in respect of their complaints under Article 5 § 1 (f) of the Convention?

APPENDIX

No. Application no./

Lodged on/

Applicant/

Date of birth/

Nationality/

Represented by

Detention Removal proceedings Refugee status/Temporary asylum proceedings Other relevant information
1 29343/18

 

22/06/2018

 

N.M.

 

07/12/1969

 

Kazakhstan

 

Kirill ZHARINOV

Detention pending extradition to Uzbekistan

 

1 August 2018 – arrested;

 

3 August 2016 – the Zheleznodorozhniy District Court of Novosibirsk ordered detention – eventually prolonged until 01 August 2017;

 

31 July 2017 – the applicant released from the detention (maximum term of detention reached).

 

Extradition proceedings

 

28 May 2015 – charged with extremist crimes by the Uzbek authorities;

 

27 April 2017 – extradition ordered by the Prosecutor General of Russia;

 

6 April 2017 – extradition order upheld by the Novosibirsk Regional Court;

 

27 June 2018 – the Supreme Court of Russia upheld extradition order.

Refugee status proceedings

 

6 September 2016 – requested refugee status;

18 November 2016 – second request for refugee status lodged;

2 March 2017 – refusal to grant status of a refugee by the migration authorities;

26 April 2017 – refusal upheld by the main migration service;

 

28 September 2017 – the Basmanniy District Court of Moscow dismissed the applicant’s complaint;

4 December 2017 – the Moscow City Court upheld dismissal.

25 June 2018 – interim measure granted by the Court for the duration of the proceedings.

 

2 41701/18

 

04/09/2018

 

K.K.

 

22/02/1985

 

 

Kyrgyzstan

 

Eleonora Grantovna DAVIDYAN

Detention pending extradition

 

12 December 2017 – detained pending extradition; detention prolonged on

11 January, 9 June 2018, 9 August, until 11 September 2018;

 

3 September 2018 – released from detention, allegedly, taken in an unknown direction;

 

4-6 September 2018 – allegedly detained without record, no contact with lawyer or relatives allowed.

 

See “other relevant information” for more details.

 

Extradition proceedings

 

12 December 2017 – request for detention filed by the Kyrgyz authorities in connection with criminal charges pending against the applicant;

 

Expulsion proceedings

 

23 July 2018 – decisionthat the applicant’s presence in Russia was “undesirable” issued by the Ministry of Justice of Russia;

 

29 August 2018 – deportation ordered by the Ministry of Interior of Russia;

 

4 September 2018 – complaint against deportation (along with a request for provisionary measure) lodged with the Basmanniy District Court of Moscow – outcome or status unknown.

 

 

 

Refugee status proceedings

 

19 July 2018 – request for a status of a refugee refused by the migration authorities for “failure to substantiate claim of [persecution]”

24 October 2018 – court hearing, outcome or status remain unknown

4 September 2018 – interim measure granted until 11 September 2018;

The applicant’s version of events between 3-6 September 2018:

[3 September 2018 – upon release from the pre-trial detention taken to the police station “YuzhnoyeMedvedkovo”;

4 September 2018 – taken to the airport by the migration officers, who “sped away” from his lawyer following them; after he resisted boarding, he was taken back to the police station;

5 September 2018 – taken to a different police station where the record of his arrival was made under “someone else’s name”; no contact with lawyer or relatives was allowed;

6 September 2018 – after he had “a glass of water” [in the police station] in the morning, he felt weakened, was then taken to the airport where, after he had resisted boarding, he was administered an injection in the medical room and felt worse; was then taken by five police officers and a border patrol officer to the boarding gate in a wheelchair over protests of his lawyer; was forced to write a statement of “voluntary departure” and deported at 11:50 pm.]

7 September 2018 – the Government submitted a note handwritten by the applicant stating that his departure was voluntary.

3 43638/18

 

29/08/2018

 

Vladimir Bagdasarovich OGANEZOV

 

12/12/1985

 

Stateless (allegedly, born in Georgia)

 

Yelena Yevgenyevna DROZDOVA

Detention pending deportation

 

13 October 2017 – currently.

Expulsion proceedings

 

14 March 2017 – decision declaring the applicant’s presence in Russia “undesirable” issued by the Ministry of Justice of Russia;

 

12 October 2017 – deportation ordered by the migration authorities of Stavropol Region;

 

17 October and 20 December 2017 – extension of detention ordered by the Georgievskiy Town Court;

 

21 February 2018 – extension of detention (until 19 May 2018) by the Georgievskiy Town Court; no appeal filed.

 

22 May 2018 – extension of detention (until 19 July 2018) by the Georgievskiy Town Court;

10 July 2018 – last extension upheld by the Stavropol Regional Court.

NONE 23 January 2018 –Section of Georgia at the Swiss Embassy in Russia issued a letter stating that “it is not possible to issue [to the applicant] a certificate of return to Georgia because he is not a national of Georgia.”
4 45099/18

08/09/2018

 

Vladimir Vladimirovich OZHERELYEV

 

08/10/1966

 

Stateless (allegedly, born in Ukraine)

 

Yelena Yevgenyevna DROZDOVA

Detention pending expulsion

 

20 November 2017 – currently.

Expulsion proceedings

 

13 March 2017 – decision decalringthe applicant’s presence in Russia “undesirable” issued by the Ministry of Justice of Russia;

 

20 November 2017 – deportation ordered by the migration authorities of Stavropol Region;

 

24 November 2017, 19 January, 20 March 2018 and 25 June 2018 – extension of detention ordered by the Georgievskiy Town Court;

 

2 August 2018 – last extension (until 20 September 2018) upheld by the Stavropol Regional Court.

NONE 9 February 2018 – Consulate Section of the Embassy of Ukraine in Russia issued a letter stating that “… [the applicant] is not a national of Ukraine…”

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