Last Updated on May 17, 2019 by LawEuro
Communicated on 11 October 2018
THIRD SECTION
Application no. 30227/18
Oybek Akramovich YUSUPOV
against Russia
lodged on 6 July 2018
STATEMENT OF FACTS
The applicant, Mr Oybek Akramovich Yusupov, is a national of Uzbekistan, who was born in 1984. He is represented before the Court by Ms D.Trenina, lawyer practising in Moscow.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
In 2013 the applicant came to Russia from Uzbekistan. In 2014 he was convicted of drug-related offences and sentenced to four years and six months’ imprisonment in a correctional colony in the Lipetsk Region.
On 13 July 2016 the Uzbek authorities accused the applicant of participation in a banned extremist religious organisation (allegedly while he was serving his sentence in the correctional colony in Russia) and instituted criminal proceedings against him. On 3 August 2016 a search warrant was issued in his name and on 7 August 2016 his detention was ordered in absentia.
On 14 December 2017 the Uzbek authorities requested the applicant’s extradition from Russia.
2. Deportation Proceedings
On 30 March 2018 the Ministry of Justice of Russia issued the decision that the applicant’s presence in Russia is undesirable. The applicant was informed of this decision in May 2018 and on 18 June 2018 the applicant’s lawyer received a copy of that decision.
On 4 April 2018 the Ministry of Interior of Russia issued the decision that the applicant’s presence in Russia is undesirable. The applicant’s lawyer was informed of this decision in the end of July 2018.
Between 20 June and 4 July 2018 the applicant’s lawyer unsuccessfully requested to have his power of attorney certified by the prison administration. Her requests were refused because the “presence of [the applicant] was required in a warden’s office” and “administration officials not currently present”. She was able to have power of attorney certified only on 4 July 2018.
On 28 June 2018, owing to the absence of a certified power of attorney, the applicant himself challenged the decision of 30 March 2018 issued by the Ministry of Justice, in the Zamoskvoretskiy District Court of Moscow and also requested the court to apply provisional measures and stay his removal to Uzbekistan.
On 5 July 2018 the applicant’s lawyer requested a copy of the deportation order from the migration authorities in Lipetsk.
On 6 July 2018 the Department of the Ministry of Interior in the Lipetsk Region issued a deportation order in respect of the applicant. The applicant was deported on the same day.
According to the applicant’s lawyers, they could not contact the applicant on the day of his deportation and they were not aware of his whereabouts until 17 July 2018.
On 10 July 2018 the applicant’s lawyer received a copy of a deportation order from the migration authorities.
On 11 July 2018 the migration authorities in the Lipetsk Region informed the applicant’s lawyer that the applicant had been deported on 6 July 2018 late in the evening from the Domodedovo International Airport in Moscow.
In the end of July 2018, the applicant’s lawyer, in response to his request of 22 June 2018, received a letter from the Federal Security Service of Russia («ФСБ» or “FSB”) dated 5 July 2018, stating that the applicant’s presence in Russia had been declared undesirable and that he had been banned from entry into Russia until the year 2037. The copy of the decision was not provided as reportedly, “it contained classified information”.
3. Events of 6 July 2018
(a) The applicant’s version of events
According to the statement submitted by the applicant through his lawyers,
“… on 6 July 2018 at 5 a.m. [I] was released from the correctional colony … Upon [my] leaving the colony, at about 5:30 a.m. [I] was met by [three men dressed in plain clothes, two of them armed]. They made [me] acknowledge and sign official refusal of [my] request for refugee status, while also cursing at [me] … They then handcuffed [me] and brought [me] to an automobile. I asked them to stop cursing as I am of Muslim faith. Instead they pushed me into an automobile; it was black Ford Focus, which had no licence plate in the rear; they started beating me, having put a black face mask (with eye holes on the back) on me. I was seated in the back of the automobile with two men next to me, the third one was driving, and we went to the airport. In about an hour we stopped for a bathroom break and they took the mask off after I had told them I would stay calm. For the remaining two and a half hours, I was being driven without a mask but handcuffed. At about 10 a.m. we stopped near the forest, I was handcuffed to a tree, with one of the men guarding me while two others were resting in the automobile. For about six to eight hours I was standing like that, being bitten by mosquitos, and no food or drink was provided to me. After that, we started driving to different pharmacies in search of some medicines that the men needed to buy. After that for about two hours I sat in the automobile near the forest (a World Cup game was being broadcasted at that time – French team was playing against some other team).
Then a red-bearded man resembling a Tatar arrived in a white jeep and came up to me. He introduced himself as “Arthur”, told me that he too was a Muslim and asked me what had happened in Uzbekistan that I was being deported. He also told me that I would not receive a warm welcome there and that I should tell him everything until it was too late. I told him that I was being accused of reading namaz and of allegedly watching banned videos in prison, even though there were no devices to do so there.
After that we all went to the airport. Arthur and his friend or an officer went to finalise the travel and deportation documents. About an hour later, they came back with the documents, took my handcuffs off, took my personal belongings and we entered the airport building. Surrounded by all five men, I was checked in for the flight, and then Arthur and his companion took me to the plane where two other plain-clothed men speaking Uzbek met me. They did not introduce themselves, handcuffed me immediately, put a baggy face mask on me and took my belongings away. I could not see anything once on board but I heard there were other passengers and I was taken past them in handcuffs. When the plane started taxiing for take-off, I asked to take the handcuffs off. Instead, I was taken to the back of the plane, where I was punched in the head and kidneys several times. I was told not to talk to anyone and not to look anywhere. In about thirty to fifty minutes, my mask was taken off, the meal was served and I ate for the first time on that day. Then they searched my belongings and interrogated me …”
(b) The application of interim measure by the Court
On the same day, at about 8 p.m. Moscow time, the Court granted the applicant’s lawyers’ request for interim measure and indicated to the Government not to remove the applicant to Uzbekistan before 17 July 2018. The Court also requested additional information from the Government to be submitted by noon Strasbourg time on 11 July 2018.
(c) The attempts of the applicant’s lawyers’ to prevent his deportation
The applicant’s lawyers submitted that,
“… On 6 July 2018, at about 10 a.m. the officers at the correctional colony informed [the applicant’s lawyer] that the applicant had been picked up at around 5 a.m. by “law-enforcement officers”. In an unofficial conversation with [the applicant’s lawyer], they mentioned that FSB officers had taken the applicant away. The migration officials informed [the applicant’s lawyer] that they were not under an obligation to provide her immediately with a copy of a deportation order in respect of the applicant and that they could just hand it to [the applicant] himself. They also explained that they were acting on the orders of their superiors who had instructed them not to make a copy of deportation order available to [the applicant’s lawyer]. They said that [the applicant’s lawyer] would receive a written reply to her request within 30 days.
On the evening of 6 July 2018 the Pravoberezhniy District Court of Lipetsk applied the provisional measure and suspended the applicant’s deportation order. The examination of the case on the merits was scheduled on 23 July 2018 and then postponed to 30 July 2018 …
…
… Starting [at] 5:40 p.m. the applicant’s lawyers informed … the airports’ police units, the FSB of Russia and Lipetsk region, the migration authorities of Lipetsk region and the office of ministry of Internal Affars in Lipetsk Region about [the provisional measure applied by the the Pravoberezhniy District Court of Lipetsk].
At 8:03 p.m. the applicant’s lawyer was informed about [the] application of interim measure by the Court under Rule 39 of the Rules of the Court. The applicant’s lawyer immediately translated the letter of the Court and informed the airports’ police units, the FSB of Russia and [the] Lipetsk region, the migration authorities of [the] Lipetsk region and the office of [the] Ministry of Internal Affairs in [the] Lipetsk Region.
The applicant was deported on a 10:45 p.m. flight from [the] Domodedovo airport.
…
… [the lawyers] were not able to meet or have any contact with [the applicant] on 6 July 2018. The lawyers were not sure of his whereabouts or fate until 17 July 2018 when the migration authority responded about details and time of the applicant’s deportation on 06.07.2018 …
The only response the applicant’s lawyers received in respect of the information [that provisional and interim measures were applied by the national court and the ECHR, respectively], was a letter of the office of FSB in Lipetsk region of 25.07.2018 saying that they took notice of the information…”
On 25 July 2018 the office of the FSB in the Lipetsk Region acknowledged receipt of the applicant’s lawyer’s request to suspend his deportation in view of the interim measure applied by the Court.
(d) Decision by the Pravoberezhniy District Court of Lipetsk to suspend the applicant’s deportation
On 6 July 2018 the Pravoberezhniy District Court of Lipetsk granted the applicant’s lawyers’ request to apply a provisional measure and immediately suspend the execution of the deportation order. The court held that it would have to examine the lawfulness of the deportation order in the hearing.
(e) Government’s reply to the Court’s indication of interim measures
On 11 July 2018 the Government, referring to the Court’s “letter of 9 July 2018” informed the Court that the applicant had been removed to Uzbekistan on 6 July 2018, that the time allocated by the Court for submission of additional information and documents was insufficient and that they would be provided in due course.
4. Proceedings for refugee status
On 28 June 2018 the applicant requested refugee status in Russia.
On 5 July 2018 the migration authorities refused to examine his application for refugee status.
On 30 July 2018 the Pravoberezhniy Distrcit Court of Lipetsk dismissed the applicant’s lawyers’ request to cancel his deportation order and refusal of the migration authorities to examine his request for refugee status on the merits.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that the Russian authorities exposed him to a real risk of ill-treatment by deporting him to Uzbekistan.
2. The applicant also complains that his treatment during his transportation to the airport was in violation of Article 3 of the Convention. He further complains that he did not have an effective domestic remedy in respect of his complaint under Article 3 of the Convention concerning his deportation, in breach of Article 13 of the Convention.
3. Lastly, the applicant complains about his deportation in breach of an interim measure indicated by the Court, which resulted in a 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
1. Did the Russian authorities expose the applicant to a real risk of being subjected to treatment in breach of Article 3 of the Convention by deporting him to Uzbekistan?
1.1. In particular, on the day of the applicant’s deportation were the domestic authorities that were handling the applicant’s deportation (migration officials, police officers at the airport(s) and/or officers of the Federal Security Service) notified by the applicant’s lawyers (by phone, email or other available means of communication) that the Pravoberezhniy District Court of Lipetsk had applied a provisional measure in respect of the applicant and suspended the execution of his deportation order? If so, what did they do to comply with the court order? If not, why did they not receive that notification?
1.2. Did the applicant’s deportation to Uzbekistan entail a violation of the above provisional measure applied by the Pravoberezhniy District Court of Lipetsk?
1.3. Did the competent national authorities (migration officials and/or domestic courts) adequately assess the applicant’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?
1.4. At what time did the plane on which the applicant was deported, depart to Uzbekistan?
2. Was the applicant’s treatment on 6 July 2018 before his deportation in breach of Article 3 of the Convention? In particular,
2.1. Who took and/or accompanied the applicant to the airport immediately after his release from the correctional colony on 6 July 2018?
2.2. How was the applicant transported to the airport (by which transport and in what manner)? Were any particular physical restraints used in respect of the applicant and if yes, was their use absolutely necessary in the circumstances? How long did this trip take?
2.3. Was the applicant provided food and drink during his transportation to the airport?
2.4. Was the applicant beaten or subdued in any manner during the said transportation?
3. Did the applicant have an effective remedy in respect of his Article 3 complaint concerning his deportation, as required by Article 13 of the Convention?
The Government are requested to provide copies of all relevant documents in respect of the applicant’s transportation to the airport on 6 July 2018.
4. Was the applicant’s deportation 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?
4.1. In particular, on the day of the applicant’s deportation 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 deportation 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 Uzbekistan until 11 July 2018? If so, what did they do to comply with the Court’s measure? If not, why did they not receive said notification?
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