Last Updated on May 18, 2021 by LawEuro
The main issues in the present case are whether (i) the expulsion to Uzbekistan of two of the applicants in the present case was (in the case of one of them) or would be (in the case of the other) in breach of Article 3 of the Convention, (ii) the conditions in the pre-trial detention facility and in the temporary detention centre for foreigners were so inadequate as to give rise to a breach of Article 3, (iii) there were effective domestic remedies in that respect, as required by Article 13 of the Convention, and (iv) the detention of two of the applicants pending their expulsion had been in violation of Article 5 of the Convention.
THIRD SECTION
CASE OF A.K. AND OTHERS v. RUSSIA
(Applications nos. 38042/18 and 2 others – see appended list)
JUDGMENT
STRASBOURG
18 May 2021
This judgment is final but it may be subject to editorial revision.
In the case of A.K. and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 38042/18 and two others (see the appended list)) 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 two nationals of Uzbekistan (Mr A.K. and Mr S.P.) and a national of Tajikistan (Mr A.Y.) (“the applicants”), on the various dates indicated in the appended table;
the decision to give notice to the Russian Government (“the Government”) of the applications;
the decision not to have the applicants’ names disclosed;
the decision to give priority to the applications (Rule 41 of the Rules of Court);
the parties’ observations;
Having deliberated in private on 13 April 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The main issues in the present case are whether (i) the expulsion to Uzbekistan of two of the applicants in the present case was (in the case of one of them) or would be (in the case of the other) in breach of Article 3 of the Convention, (ii) the conditions in the pre-trial detention facility and in the temporary detention centre for foreigners were so inadequate as to give rise to a breach of Article 3, (iii) there were effective domestic remedies in that respect, as required by Article 13 of the Convention, and (iv) the detention of two of the applicants pending their expulsion had been in violation of Article 5 of the Convention.
THE FACTS
2. The applicants’ initials, dates of birth and application numbers – together with the names of their representatives and other details of their cases – are set out in the appended table.
3. The Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
4. The facts of the case may be summarised as follows.
I. THE APPLICANTS’ ARREST AND removal PROCEEDINGs
5. Mr A.K. (“A.K.”) and Mr A.Y. (“A.Y.”) came to Russia in 2013; Mr S.P. (“S.P.”) came to Russia in 2016.
6. In 2014 and 2016, respectively, A.K. and S.P were charged by the Uzbek authorities with the crime of religious extremism. A.Y. was charged by the Tajikistani authorities with the crime of political extremism in 2015. Search and arrest warrants were issued by the applicants’ respective national authorities in the applicants’ names. On the dates specified in the appended table the Court indicated to the Russian Government, by way of an interim measure, that the applicants should not be removed to Uzbekistan (A.K. and S.P.) or Tajikistan (A.Y.) for the duration of the proceedings before the Court.
A. The case of A.K.
7. A.K. was at first placed in detention on remand in Russia, pursuant to an extradition request from the Uzbek authorities. After he had been held in detention pending his extradition for the maximum permissible period of one year, he was detained pending administrative expulsion for having breached immigration regulations (see the appended table for details).
8. In January 2019, when he was detained pending expulsion, he requested the Court to discontinue the application of the interim measure in respect of his case. The Court confirmed that that was indeed his wish with his lawyer, who had interviewed the applicant in person and obtained the following statement from him to that effect:
“I refuse the application of the interim measure under Rule 39. My wife and two infant children are currently in Uzbekistan. My wife is gravely ill, and my children live with relatives. At the moment my main concern is the lives of my children. I do not wish to withdraw my complaint. I have been in the detention centre for more than six months with no judicial review [of my case]. The complaint [lodged by me with] the Moscow City Court has not yet been examined. I may have to stay here for more than two years owing to the application of Rule 39. I want to go back to my homeland to see my children.”
9. On 11 February 2019 the Court lifted the interim measure.
10. On 1 April 2019 the applicant was expelled to Uzbekistan.
B. The case of S.P.
11. S.P. was detained after his presence in Russia had been declared undesirable by two State organs and an order for his deportation had been issued. He was released from the detention that had been ordered pending his deportation but was then immediately re‑arrested (pursuant to an extradition request lodged by the Uzbek authorities), but he was eventually released (see the appended table for details).
C. The case of A.Y.
12. A.Y. was arrested for breaching immigration regulations, and it was ordered that he be detained pending his expulsion (see the appended table for details).
II. PROCEEDINGS FOR REFUGEE STATUS AND TEMPORARY ASYLUM IN RUSSIA (cases of A.k. and S.P.)
13. A.K. and S.P. lodged applications for refugee status and temporary asylum in Russia (see the appended table for details).
14. The relevant migration authorities rejected their applications as unsubstantiated.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
15. A summary of the domestic law concerning deportation was set out in the case of Liu v. Russia (no. 42086/05, §§ 35-6, 6 December 2007).
16. A summary of the domestic law and practice concerning extradition was provided in the case of Mukhitdinov v. Russia (no. 20999/14, §§ 29-31, 21 May 2015, with further references).
17. The relevant domestic law and practice relating to the expulsion and detention of foreign nationals in Russia, refugee status, and temporary asylum is summarised in the case of L.M. and Others v. Russia (nos. 40081/14 and two others, §§ 61-75, 15 October 2015).
18. A summary of domestic law provisions concerning the detention of foreign nationals pending expulsion is contained in the judgments in the cases of Kim v. Russia (no. 44260/13, §§ 41-57 and 68-74, 17 July 2014) and Azimov v. Russia (no. 67474/11, §§ 75-81 and 83, 18 April 2013).
Reports on Uzbekistan
19. References to relevant reports issued by UN agencies and international NGOs on the situation in Uzbekistan were made 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.
20. A publication entitled “Uzbekistan 2019 World Report” issued by Human Rights Watch indicated that certain promising steps had been taken to reform the country’s human rights record, but that many reforms had yet to be implemented. It furthermore stated that a limited number of people imprisoned on politically motivated charges had been released in the period 2016-18. Moreover, isolated instances of officers of the security services being convicted of and sentenced for carrying out torture and causing death in custody were cited. Amnesty International’s report on the period 2017/2018 noted similar trends, citing as the priorities set by the authorities for systemic reform the areas of judicial independence and effectiveness. At the same time the report stressed that the authorities continued to secure the forcible return to their country of origin (including by means of extradition proceedings) of Uzbekistani nationals identified as threats to the “constitutional order” or national security.
THE LAW
I. JOINDER OF THE APPLICATIONS
21. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLEs 3 and 13 OF THE CONVENTION (on account of THE conditions of A.K.’s DETENTION)
22. A.K. complained that the conditions of his detention in pre-trial detention facility 77/4 (SIZO 77/4) in Moscow between 10 August 2017 and 2 August 2018 and in the temporary detention centre for foreigners in Sakharovo (“the Sakharovo detention centre”) between 3 August 2018 and 1 April 2019, had been inhuman and degrading, and that he had not had at his disposal an effective domestic remedy in respect of his complaint concerning the poor conditions of his detention. He relied on Articles 3 and 13 of the Convention, which provide:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“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. Admissibility
1. Conditions of detention in the pre-trial detention facility (SIZO 77/4 in Moscow)
23. The Court has examined A.K.’s complaints under Articles 3 and 13 of the Convention in respect of conditions of detention in the pre-trial detention facility (SIZO 77/4) in Moscow and finds that the applicant should avail himself of the new compensatory remedy envisaged by the Russian Compensation Act, which the Court declared effective in its recent decision of Shmelev and Others v. Russia ((dec.), nos. 41743/17 and 16 others, §§ 77 and 131, 17 March 2020) for all cases of past pre-trial detention and some situations of correctional detention allegedly in breach of domestic provisions. It follows that this part of A.K.’s application must be rejected in accordance with Article 35 § 4 of the Convention.
2. Conditions of detention in the Sakharovo detention centre
24. The Court notes that the applicant submitted no information regarding the conditions of detention on the quarantine ward of the Sakharovo detention centre where he had been detained in August 2018. Furthermore, in respect of cell no. 249 and an unidentified cell in which he was detained after 6 September 2018, the applicant submitted no information, except for detailing the size of those cells and the number of detainees held in them (see the appended table for details). It follows from this information provided by the applicant that he had at his disposal at least three square metres of personal space and that overcrowding, or any other aspect of the applicant’s detention in those cells, does not appear to have constituted an issue according to the Court’s case-law (see, within the context of detention on remand, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 145, 10 January 2012 and, within the context of detention centre for foreigners, Mainov v. Russia [Committee] no. 11556/17, § 19, 15 May 2018 and Mardonshoyev v. Russia [Committee] no. 8279/16, § 19, 29 January 2019). It therefore follows that the applicant’s complaint under Article 3 in this part is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
25. The Court notes that the remainder of the applicant’s complaint regarding the conditions of detention (in cell no. 204 between 15 August and 6 September 2018) in the Sakharovo detention centre is not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
26. The Court further notes that the applicant submitted no observations in respect of his complaint under Article 13 made out in his application form under this head. The Court finds that the applicant’s complaint is partially not sufficiently substantiated and partially does not raise separate issues that would merit further examination. It follows that this part of A.K.’s application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Merits
27. The applicant’s submissions regarding the conditions of his detention in cell no. 204 between 15 August and 6 September 2018 in the Sakharovo detention centre are presented in the appended table.
28. The Government stated that the complaint was subject to the Court’s well-established case-law. They did not submit any additional comments in that regard.
29. According to the Court’s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, for example, Ananyev and Others, cited above, § 121, 10 January 2012). After examining the applicant’s detailed submissions and in the absence of any submissions from the Government, the Court considers it appropriate to rely on the applicant’s account of the material conditions of his detention in the Sakharovo detention centre.
30. It can be seen from the applicant’s submissions concerning cell no. 204 in the Sakharovo detention centre that between 15 August and 6 September 2018 he was detained in cramped conditions that afforded less than three square metres per person; those conditions were further aggravated by other aspects of the detention in that cell, which were meticulously described by the applicant (see the appended table).
31. Having regard to the detailed information submitted by the applicant and to the fact that the Government have not put forward any fact or argument capable of persuading the Court to reach a different conclusion in the present case, the Court finds that the applicant was detained in cramped and inadequate conditions in cell no. 204 in the Sakharovo detention centre during the respective period (see the appended table). The Court therefore considers that the applicant was subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (on account of THE ordered removal of A.K. and S.P. to uzbekistan)
32. A.K. complained that his administrative expulsion to Uzbekistan had left him open to a risk of torture and/or inhuman or degrading treatment. S.P. complained that his extradition or deportation, if carried out, would put him at risk of torture and/or inhuman or degrading treatment. The applicants relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The case of A.K.
33. The Government submitted that the applicant no longer ran the risk of ill-treatment in Uzbekistan and had lost his victim status because he had requested the Court, of his own free will, to lift the interim measure indicated in respect of him and had expressed his wish to return to Uzbekistan for personal reasons. The Government furthermore argued that his complaint under Article 3 concerning his planned expulsion to Uzbekistan had been, in any case, manifestly ill-founded because the applicant had relied on outdated country-information material and because he had failed to demonstrate, either during the domestic proceedings or before the Court, that substantial grounds existed for believing that he would face the real risk of treatment in violation of Article 3 of the Convention in the event of his expulsion.
34. The applicant submitted that he had asked for the interim measure to be lifted for two reasons. Firstly, he wanted to return to Uzbekistan because his wife, who lived there, had become ill and their children had been placed with distant relatives. His detention had prevented him from working in Russia and supporting them. Secondly, his detention pending expulsion and the examination of the case by the Court would have taken an unreasonably long time – perhaps even longer than would be the case in respect of detained persons charged with criminal offences. He pointed out that even though he had asked for the interim measure to be lifted, he had continued to support before the Court his application, including his complaint under Article 3 concerning his planned expulsion. He further claimed, through his lawyer, that “he had been tortured and ill-treated in Uzbekistan by law‑enforcement authorities”, without providing any further details or explanations. He referred to international reports attesting to, inter alia, wide-spread torture and ill-treatment by law‑enforcement bodies in Uzbekistan, the systemic persecution of political opponents and the harsh treatment of certain religious groups.
35. The Court notes that the applicant, who was represented by lawyer, expressed his wish to return to Uzbekistan for personal reasons and despite the risks alleged by him, and requested the Court, of his own free will, to lift an interim measure, following which he was expelled to Uzbekistan (see paragraphs 8-10 above). Furthermore, even though the applicant stated in his request that he wished to maintain his complaint under Article 3, he did not claim that he would be exposed to a risk of ill-treatment in Uzbekistan in case of his return there (see paragraph 8 above). Following his removal to Uzbekistan neither the applicant, nor his lawyers in any of the submissions claimed that the Russian authorities had actually exposed him to a risk of ill-treatment by removing him to Uzbekistan. In his observations the applicant made a vague reference to ill-treatment allegedly suffered at the hands of the authorities in Uzbekistan (see paragraph 34 above) but he neither detailed his allegations of ill-treatment nor referred to any impediment to providing further evidence. Nothing indicates that he had been effectively prevented from providing an account of ill-treatment if it had taken place (see, as a similar example, R.A. v. Russia, no. 2592/17 [Committee], §§ 35-8, 9 July 2019). In these circumstances, owing to the applicant’s voluntary refusal of protection provided to him under Rule 39 of the Rules of the Court and the reliance on family reasons as justifying his decision to return, the Court cannot but conclude that the applicant’s claim of alleged ill-treatment in Uzbekistan is not supported by the material in his case file.
36. Accordingly, it follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The case of S.P.
1. Admissibility
37. The Court finds that S.P.’s complaint under Article 3 concerning his ordered expulsion to Uzbekistan is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore holds that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) The applicant’s submissions
38. S.P. submitted that in the event of his return to Uzbekistan he would face a risk of torture because he belonged to a group of people who had been systematically ill-treated in connection with their prosecution for religious and political crimes. The applicant relied on the Court’s well‑established case-law in respect of Uzbekistan and on relevant international reports.
(b) The Governments’ submissions
39. The Government submitted that that the domestic courts had duly assessed the circumstances of the applicant’s case and the alleged risks for the applicant in Uzbekistan. Notably, the Leninskiy District Court of Kursk held that the applicant had not provided firm reasons as to why he would be at risk of persecution and that the reference to the country’s human rights record in and of itself could not serve as grounds for a stay of deportation. The Government furthermore contended that the Leninskiy District Court of Kursk had relied on a decree of the President of Uzbekistan of 7 February 2017 that had stated that the situation regarding human rights and judicial independence had improved in the country and that national legislation was aligned with international standards regarding the protection of human rights. The Government furthermore noted that the Leninskiy District Court of Kursk had averred that laws governing law‑enforcement bodies, administrative arrest and the rights of detainees had been amended in Uzbekistan. The Government furthermore submitted that the applicant had requested temporary asylum belatedly (only after the order for his deportation had been issued) and that he had failed to substantiate his request.
3. The Court’s assessment
(a) General principles
40. The relevant general principles concerning the application of Article 3 were summarised by the Court in the judgment in the case of F.G. v. Sweden, [GC], no. 43611/11, §§ 111-27, ECHR 2016, and – within the context of removals from Russia to Central Asian States – in Mamazhonov v. Russia, no. 17239/13, §§ 127-37, 23 October 2014.
(b) Application of those principles to the present case
(i) Existence of substantial grounds for believing that the applicant faces a real risk of ill-treatment
41. Turning to the present case, it is apparent to the Court from the material in the applicant’s case file that in the course of the extradition proceedings he specifically argued that he faced a risk of ill-treatment in Uzbekistan. Furthermore, the applicant argued in his deportation proceedings that he had been prosecuted for religious extremism. Furthermore, in support of his respective application for temporary asylum, the applicant submitted to the migration authorities information about the risks that would face him in the event of his being returned; that application was rejected.
42. Additionally, it can be seen from the search and arrest warrants and extradition request submitted by the Uzbek authorities that the basis of those warrants and request was clear – namely, that S.P. stood accused of religiously motivated crimes. The Uzbek authorities thus directly associated him with a group whose members have previously been found to be at real risk of being subjected to proscribed treatment.
43. The Russian authorities were therefore presented with evidence capable of proving that the applicant belonged to a vulnerable group of persons who were systematically exposed to ill-treatment in Uzbekistan, in breach of Article 3 of the Convention; the removal of the applicant would therefore expose him to a real risk of such ill-treatment (see Mamazhonov, cited above, § 140, and, for example, the follow-up cases of Yusupov v. Russia [Committee], no. 32027/18, 1 December 2020; N.M. v. Russia [Committee], no. 29343/18, 3 December 2019; and R.R. and A.R. v. Russia [Committee], nos. 67485/17 and 24014/18, 8 October 2019). It is apparent from the material in the applicant’s case file that the Russian authorities had at their disposal sufficiently substantiated complaints pointing to a real risk of ill‑treatment.
(ii) Duty to assess claims of a real risk of ill-treatment through reliance on sufficient relevant material
44. The Court furthermore notes that it is apparent from copies of the respective decision that the migration service, having examined the applicant’s application for temporary asylum status, did not carry out a rigorous scrutiny of his arguments. It limited the reasoning of its decision to general statements about the absence of any risks facing the applicant and did not review his arguments in the light of the Court’s abundant case law concerning the treatment of persons accused of crimes of extremism in Uzbekistan and the easily accessible international reports on that matter. The migration authorities’ review of the applicant’s application for temporary asylum and the domestic courts’ examination of his claims were perfunctory and did not include a rigorous and independent assessment of whether substantial grounds had been shown for believing that the applicant faced a real risk of treatment violating Article 3 of the Convention. The Court therefore concludes that the domestic authorities did not duly assess the applicant’s argument that there was risk of his facing ill-treatment in Uzbekistan.
(iii) Existence of a real risk of ill-treatment or danger to life in Uzbekistan
45. Given the failure of the domestic authorities to adequately assess the applicant’s arguments regarding the risk of ill-treatment in Uzbekistan, the Court finds itself compelled to examine independently whether S.P. would be exposed to such a risk in the event of his removal to Uzbekistan. The Court notes that the applicant has been charged with membership of banned religious organisation by the Uzbek authorities. The Court has previously established that individuals whose extradition was sought by Uzbek authorities on charges of religiously or politically motivated crimes constituted a vulnerable group that would face a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to Uzbekistan (see the above-cited cases of Mamazhonov; N.M. v. Russia; R.R. and A.R. v. Russia). The present case is similar to those cases, given the nature of the charges against the applicant, the manner in which the indictment against him was issued and the lack of effective judicial review. The Court finds no reason in the present case to depart from its earlier findings on the matter. While the Court notes with attention the cautious indications of an improvement in the human rights situation in Uzbekistan included in the independent reports (see paragraphs 19 and 20 above); however, nothing in the parties’ submissions in respect of the present case or the relevant material from independent international sources constitutes at this moment a sufficient basis for concluding that persons prosecuted for religiously motivated crimes no longer run a risk of treatment breaching Article 3.
(iv) Conclusion
46. The Court, accordingly, concludes on the basis of the above findings that S.P.’s removal to Uzbekistan, if carried out, would be in violation of Article 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
47. A.K. and A.Y. furthermore complained that their detention pending expulsion had not been compatible with Article 5 §§ 1 (f) and 4 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
48. The Court will consider firstly whether effective judicial supervision was exercised over the lawfulness of the applicant’s detention, as required by Article 5 § 4 of the Convention, and secondly whether it was compatible with the requirements of Article 5 § 1 (f) of the Convention (see Kim, cited above, § 38, 17 July 2014).
A. Compliance with Article 5 § 4 of the Convention
1. Admissibility
49. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
50. The applicants submitted that they had not had access to an effective domestic remedy in the form of judicial review of the lawfulness of their detention in the Sakharovo detention centre.
51. The Government submitted that the applicants had had at their disposal effective domestic remedies through which to complain about their ongoing detention, but that they had not used those remedies.
52. The Court has found a violation of Article 5 § 4 of the Convention in many cases against Russia on account of the absence of any domestic legal provision that could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion and to secure, if necessary, his release (see Kim, cited above, §§ 39-43; see also, for example, L.M. and Others v. Russia (cited above, §§ 140-42, 15 October 2015; and Rakhimov v. Russia, no. 50552/13, §§ 148-50, 10 July 2014). The Court notes that, similarly to the applicants in those cases, the applicants in the present case did not benefit from periodic review of the lawfulness of their continuing detention pending expulsion.
53. Therefore, in the light of the Court’s well-established case-law and the fact that the Government have not put forward any fact or argument capable of persuading the Court to reach a different conclusion in the present case, the Court finds that the applicants did not have at their disposal a procedure for judicial review of the lawfulness of detention capable of leading to release.
B. Compliance with Article 5 § 1 (f) of the Convention
1. Admissibility
54. The Government submitted that A.K. had not lodged an appeal specifically against the order for his detention pending expulsion and that his complaint under Article 5 § 1 (f) was therefore inadmissible for non‑exhaustion of domestic remedies.
55. A.K. disputed that argument.
56. The Court notes that A.K.’s statement of appeal contained a specific request for his release, which the appeal court understood as such but dismissed. The Court therefore finds that A.K. brought his complaint against the order of detention before the domestic court with authority to deal with it and dismisses the Government’s objection in respect of A.K.
57. The Court furthermore finds that the complaint brought by A.K. and A.Y. under Article 5 § 1 (f) is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
58. The applicants submitted that the court decisions had not stipulated the maximum length of their detention. Other than the requirement that the expulsion order be executed within the two-year time-limit, the Code of Administrative Offences did not contain any provisions governing the length of detention pending expulsion, and therefore lacked legal certainty. Lastly, the applicants submitted that a possible two-year stay in detention (in fact, A.Y. was detained for longer than two years – see the appended table for details) would significantly exceed the maximum custodial sentence permissible under the Code of Administrative Offences, and that their detention pending expulsion had therefore been of a punitive rather than preventive nature.
59. The Government argued that the applicants’ detention had been compliant with Article 5 § 1 (f) of the Convention and that that detention had pursued the purpose of the enforcement of the expulsion order that had been issued in respect of them. They furthermore submitted that while no time-limit for the applicants’ detention had been stipulated, the maximum term provided under law in respect of the enforcement of an administrative penalty was two years.
60. Having regard to the information submitted by the applicants, the Court notes that initially A.K. and A.Y. were detained for breaching immigration regulations with a view to their subsequently being expelled, and their initial detention was presumably carried out in good faith and in compliance with Article 5 § 1 (f) of the Convention. It remains to be established whether the applicants’ continuing detention pending expulsion was justified, in the light of the individual circumstances of their respective cases.
61. Turning to the present cases, the Court observes that A.K. was detained for almost eight months and A.Y. for two years and one month, pending expulsion. On different dates (see the appended table), the authorities became aware that the removal of the applicants had been suspended for the duration of the respective sets of proceedings before the Court, owing to the application by the Court of an interim measure preventing their removal to their countries of origin. In this regard, the Court reiterates that the fact that expulsion proceedings are provisionally suspended as a result of the application of an interim measure does not by itself render the detention of the person concerned unlawful, provided that the authorities still envisage expulsion at a later stage (so that “action is being taken” even though the relevant proceedings are suspended) and on condition that the detention is not unreasonably prolonged. The Court has also considered that the existing possibility to apply for judicial review of an applicant’s situation is an important factor to be taken into account in reviewing the lawfulness of detention in cases where an interim measure has been applied (see Ahmed v. the United Kingdom, no. 59727/13, §§ 44 and 50, 2 March 2017).
62. The Court observes, however, that following the application of the above-mentioned interim measures by the Court (see paragraph 6 above), the authorities remained rather inert in the applicants’ cases and did not assess at regular intervals whether their removal remained a “realistic prospect”, especially given the passing of time. The applicants, meanwhile, were detained without the possibility of the reasons for their detention being periodically reviewed (see L.M. and Others v. Russia, cited above, § 149; see also the Court’s findings in paragraphs 52 and 53 above).
63. Accordingly, in the light of these considerations and given the recurrent findings of violations of Article 5 § 1 (f) of the Convention in respect of foreigners or stateless persons detained virtually indefinitely in Russia with a view to their administrative expulsion (see R.K. v. Russia, no. 30261/17, §§ 62-5, 8 October 2019; L.M. and Others v. Russia, cited above, §§ 145‑52; Mumanzhinova and Others v. Russia [Committee], nos. 724/18 and eight others, §§ 17-26, 8 October 2019; Ismailov v. Russia [Committee], no. 45852/17, §§ 22-3, 24 September 2019; and M.S.A. and Others v. Russia [Committee], nos. 29957/14 and eight others, §§ 62-6, 12 December 2017), the Court finds that the length of the detention of A.K. and A.Y. exceeded what was reasonably required for the purpose pursued and that their detention became a punitive rather than a preventive measure.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
64. 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. Non-pecuniary damage
65. The applicants claimed the following amounts in respect of non‑pecuniary damage:
– A.K. – 15,000 euros (EUR),
– S.P. – EUR 5,000 and
– A.Y. – EUR 10,000.
66. The Government submitted no comments regarding A.K.’s and S.P.’s claims in respect of non-pecuniary damage. In the case of A.Y. the Government submitted that any award in respect of non-pecuniary damage should be made according to the Court’s well-established case law.
67. The Court considers that A.K. and A.Y. have suffered non-pecuniary damage that cannot be compensated for solely by the finding of a violation, and that compensation therefore has to be awarded. Having regard to the nature of the violations found, and making its assessment on an equitable basis, the Court awards EUR 3,900 to A.K. and EUR 6,000 to A.Y., in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants.
68. Furthermore, in so far as S.P. complained under Article 3, his forced return to Uzbekistan would, if implemented, give rise to a violation of that Article’s provisions. Accordingly, no breach of the Convention under that head has yet occurred in the case of S.P. The Court considers that its finding regarding S.P.’s complaint in itself amounts to adequate just satisfaction for the purposes of Article 41 (see Rakhimov, cited above, § 156).
B. Costs and expenses
1. The case of A.K.
69. A.K. claimed EUR 5,300 for costs and expenses incurred in the domestic proceedings and in the proceedings before the Court.
70. The Government submitted that the applicant had not produced either an authority form in respect of Ms G. (his lawyer during the domestic proceedings) or a legal services agreement concluded with his domestic and Strasbourg representatives. They furthermore contended that Ms Magomedova (the applicant’s representative before the Court) had not proved in her additional submissions that she remained in contact with the applicant.
71. 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 (see, inter alia, Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, § 206, 21 November 2019, and Jeunesse v. the Netherlands [GC], no. 12738/10, § 135, 3 October 2014). In the present case, regard being had to the documents in its possession, to the nature of the violations found and to its case-law, the Court awards EUR 1,500 to the applicant under this head. That sum is to be paid directly into the bank account(s) of the applicants’ representatives, to be specified by them.
2. The case of S.P.
72. The applicant claimed EUR 1,080, EUR 1,440 and EUR 1,560 for costs and expenses incurred before the domestic courts and before the Court by his representatives, Ms Trenina, Mr Zharinov and Ms Davidyan, respectively.
73. The Government submitted that the applicant had not produced a legal services agreement and that it had not been necessary to retain three lawyers in respect of his case. They contended that the claim was excessive and unsubstantiated.
74. In the present case, regard being had to the documents in its possession and the above criteria (see paragraph 71 above), the Court considers it reasonable to award EUR 2,500, jointly, in costs and expenses to Ms Trenina, Mr Zharinov and Ms Davidyan. As requested, the payment is to be paid directly to the applicant’s representatives’ account(s), to be specified by them.
3. The case of A.Y.
75. The applicant claimed EUR 480, EUR 960 and EUR 1,320 for costs and expenses incurred before the domestic courts and before the Court by his representatives, Ms Trenina, Mr Zharinov and Ms Davidyan, respectively.
76. The Government submitted that the applicant had not produced a legal services agreement and that that award, if any, should be made in compliance with the Court’s well-established case law.
77. Having regard to the documents in its possession and to the above criteria (see paragraph 71 above), the Court considers it reasonable to award EUR 2,500 jointly, in costs and expenses to Ms Trenina, Mr Zharinov and Ms Davidyan. As requested, the payment is to be paid directly into the applicant’s representatives’ account(s), to be specified by them.
C. Default interest
78. 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.
VI. APPLICATION OF AN INTERIM MEASURE UNDER RULE 39 OF THE RULES OF COURT (the case of S.P.)
79. On 21 September 2018 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that S.P. should not be removed from Russia to Uzbekistan for the duration of the proceedings before the Court.
80. In this connection, the Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final.
81. Accordingly, the Court considers that the measures indicated to the Government under Rule 39 of the Rules of Court in respect of S.P. have come to an end.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the complaint of A.K. under Article 3 concerning the conditions of his detention in cell no. 204 the Sakharovo detention centre between 15 August and 6 September 2018, the complaint of S.P. under Article 3 concerning his ordered expulsion to Uzbekistan, and the complaints of A.K. and A.Y. concerning the unlawfulness of their detention pending expulsion and the lack of judicial review of their detention admissible and the remainder of A.K.’s complaint under Article 3 concerning the conditions of his detention and his complaints under Article 3 about expulsion to Uzbekistan and under Article 13 concerning the lack of effective domestic remedies inadmissible;
3. Holds that there has been a violation of Article 3 of the Convention in respect of A.K. on account of the conditions of detention in the Sakharovo detention centre between 15 August and 6 September 2018;
4. Holds that there would be a violation of Article 3 of the Convention in respect of S.P. if his expulsion were to be carried out;
5. Holds that there has been a violation of Article 5 §§ 1 and 4 of the Convention in respect of A.K. and A.Y.;
6. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,900 (three thousand nine hundred euros) to A.K and EUR 6,000 (six thousand euros) to A.Y.; plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros) to A.K.; EUR 2,500 (two thousand five hundred euros) to S.P.; and EUR 2,500 (two thousand five hundred euros) to A.Y.; all sums to be paid directly to the applicants’ representatives accounts as indicated by them; plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(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 18 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President
APPENDIX
| No. | Application no.
Lodged on Applicant’s initials Year of Birth Place of Residence Nationality Represented by |
Detention | Removal proceedings | Refugee status/temporary asylum proceedings | Additional information
|
| 1. | 38042/18
10/08/2018 A.K. 1979 Uzbekistan Uzbekistan Roza Saidovna MAGOMEDOVA |
Detention pending extradition
8 August 2017 – 2 August 2018 in SIZO 77/4 (11 months and 24 days);
Detention pending expulsion 3 August 2018 – 1 April 2019 (7 months and 29 days) in the Sakharovo detention centre (Moscow) |
Extradition proceedings
10 August 2017 – the Babushkinskiy District Court of Moscow ordered the applicant’s detention pending the examination of the request for his extradition (further extended).
2 August 2018 – the Babushkinskiy District Court of Moscow ordered the applicant’s release, as the maximum period of detention pending extradition expired.
Expulsion proceedings
3 August 2018 the Babushkinskiy District Court of Moscow ordered the applicant’s expulsion for breaching immigration regulations and detention pending expulsion;
30 August 2018 – the Moscow City Court confirmed the expulsion but suspended its enforcement, owing to the application of the interim measure by the Court on 21 August 2018; detention to be continued. |
Temporary asylum proceedings
13 October and 20 November 2017 –refusals of temporary asylum by the MVD Moscow and Russia;
2 March 2018 – the Basmanniy District Court of Moscow confirmed the refusals. 4 July 2018 the Moscow City Court confirmed the refusals.
10 August 2018 – re-applied for temporary asylum by post from the Sakharovo detention centre, no reply received.
Refugee status proceedings 10 December 2017 –applied for refugee status. No action taken by the Moscow MVD.
4 June 2018 – the Zamoskvoretskiy District Court of Moscow declined to examine the applicant’s complaint against inaction on the part of the MVD.
12 November 2018 – on appeal, the Moscow City Court ordered the Moscow MVD to examine the applicant’s application of 10 December 2017 for refugee status. No update provided. |
Interim measure under Rule 39 of the Rules of the Court
20 August 2018 – interim measure applied by the Court indicating that the applicant should not be removed to Uzbekistan for the duration of the proceedings before the Court.
11 February 2019 – the Court discontinued application of the above interim measure, at the request of the applicant.
Conditions of detention (as per the applicant’s submissions):
In SIZO 77/4
Between 10 August 2017 and 2 August 2018 (11 months and 22 days):
Cell No. 812: 30 sq. m, 8 sleeping bunks, no less than 12 detainees at a time; lack of individual sleeping place, toilet partition 1.5 m high; lack of natural light; second-hand smoke; low room temperature; lack of fresh air; no access to drinking water; food of low quality; insufficient time allowed outdoors; one ten-minute shower per week; lack of facilities for drying clothes; lack of personal hygiene items; poor quality of bedlinen; infestation of cell by insects and rodents.
In the centre for temporary detention of foreigners (the Sakharovo detention centre):
3-4 August 2018: in quarantine ward (no submissions made in this respect)
4-14 August 2018: Cell no. 249: 30 sq. m; 10 persons;
15 August-6 September 2018: Cell no. 204: 8 sq. m; 4 persons; toilet partition 1.2 m high; no hot water; limited drinking water; window bars; shower once a week.
7 September 2018-1 April 2019: unidentified cell, 15 sq. m, 5 or fewer persons at the same time. |
| 2. | 44546/18
20/09/2018 S.P. 1988 Moscow Uzbekistan Kirill ZHARINOV Daria TRENINA Eleonora DAVIDYAN
|
Detention pending deportation
28 September 2018 – the Oktyabrskiy District Court ordered the applicant’s detention; the term of detention was later extended.
27 May 2019 – released, as the Oktyabrskiy District Court of Kursk refused to extend the term of his detention pending expulsion.
Detention pending extradition 27 May 2019 – arrested pursuant to a search warrant and extradition request from Uzbek authorities; 28 May 2019 the Oktyabrskiy District Court of Kursk ordered detention (further extended).
26 May 2020 – released from detention on remand, owing to expiry of one-year maximum term of detention pending examination of the extradition request. He was informed that the extradition request had been approved by the Russian Deputy Prosecutor General. |
“Undesirable” presence decisions
21 and 31 August 2018 – decision that the presence of the applicant is “undesirable” issued by the MVD and Ministry of Justice, owing to the applicant’s criminal conviction in Russia and charges of religious extremism pending against him in Uzbekistan;
11 September 2018 – deportation order issued by the MVD;
2 November 2018 – the Leninskiy District Court of Kursk refused his complaint against the above decisions;
30 January 2019 the Kursk Regional Court refused the appeal.
Extradition proceedings 29 July 2020 – the Kursk Regional Court approved the extradition decision by the Deputy Prosecutor General.
23 November 2020 – 1st Court of Appeal of General Jurisdiction remitted the applicant’s case for a fresh examination. |
Refugee status proceedings
20 September 2018 requested refugee status; The applicant asserted that his application of 20 September 2018 for refugee status had been substituted by an application for temporary asylum, a procedure providing less protection.
Temporary asylum proceedings
25 October 2018 – applied (according to the text of the decision);
7 December 2018 – the MVD Kursk declined to examine his request; no appeal brought, as, according to the applicant, he had not been informed of this dismissal. |
Interim measure under Rule 39 of the Rules of the Court
21 September 2018 – interim measure applied by the Court indicating that the applicant should not be removed to Uzbekistan for the duration of the proceedings before the Court.
Criminal proceedings in Russia
2 October 2017 the Taganskiy District Court of Moscow found the applicant guilty of organising illegal mass migration; sentenced to two years’ imprisonment. 28 September 2018 released from the colony and immediately placed in the Sakharovo detention centre, pending deportation.
20 September 2018 – provisional measure taken by the Leninskiy District Court of Kurskб while complaint against decisions of the MVD and Ministry of Justice and deportation order is pending |
| 3. | 20033/19
12/04/2019 A.Y. 1989 Moscow Tajikistan Daria TRENINA Kirill ZHARINOV Eleonora DAVIDYAN
|
Detention pending expulsion
19 June 2018 – 21 July 2020 (two years and one month)
20 June 2018 – detention ordered by the Meschanskiy District Court of Moscow; 21 July 2020 – expelled to Tajikistan. |
Expulsion proceedings
20 June 2018 the Meschanskiy District Court of Moscow found the applicant guilty of breaching immigration regulations and ordered his detention pending expulsion.
16 July 2018 the Moscow City Court upheld the expulsion order. Removal not carried out, owing to bailiff’s ban on leaving the country owing to unpaid fines.
24 March 2020 the Meschanskiy District Court of Moscow refused to terminate the expulsion proceedings and to release the applicant. 14 May 2020 – the Moscow City Court upheld that decision. |
Not applicable. On 17 October 2019 the applicant’s complaint under Article 3 was declared inadmissible for non-exhaustion of domestic remedies. | Interim measure under Rule 39 of the Rules of the Court
15 April 2019 – the Court indicated to the Russian Government not to remove the applicant to Tajikistan for the duration of the proceedings before it;
14 November 2019 – the Court discontinued the application of the above interim measure because the applicant’s complaint under Article 3 had been declared inadmissible for non-exhaustion of domestic remedies on 17 October 2019. |
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