Last Updated on May 19, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 31084/18
K.G.
against Russia
The European Court of Human Rights (Third Section), sitting on 2 October 2018 as a Chamber composed of:
Vincent A. De Gaetano, President,
Branko Lubarda,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 2 July 2018,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr K.G., is a Tajik national who was born in 1990 and is currently detained in the Kabardino-Balkariya Republic. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr T. Shirokov, a lawyer practising in Moscow, and Mr B. Khamroyev, residing in Moscow.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 2009 the applicant arrived in Russia seeking employment. On 3 April 2017 he allegedly concluded a religious Muslim marriage with a Russian national, Ms Z.
4. On 3 April 2017 the applicant was charged by the Tajik authorities with unlawful recruitment of Tajik nationals and stateless persons for participation in armed conflicts on the territory of other States. On 8 and 12 April 2017 the Tajik authorities issued a search warrant and detention order in absentia. On 29 August 2017 an international search warrant was issued.
1. Relevant removal proceedings in Russia
5. On 2 November 2017 the applicant was arrested by the Russian authorities on the basis of the international search warrant. During the initial questioning by the Russian authorities he stated that he had not been aware of the charges in Tajikistan, had never travelled to either Syria or Iraq, and had never participated in an unlawful armed group. He had been a practising Muslim since childhood and had an “extremely negative” attitude to terrorist activities. He did not indicate any fears related to his possible return to his country of origin.
6. On 3 November 2017 the Zolskiy District Court of the Kabardino‑Balkariya Republic ordered the applicant’s detention pending transfer to the Tajik authorities. The order was initially issued for one month and subsequently extended until 14 June 2018.
7. On 14 June 2018 the applicant was released from detention and immediately re-arrested for a violation of immigration rules.
8. On the same day the Nalchik Town Court of the Kabardino-Balkariya Republic found the applicant to be in breach of immigration rules (Article 18.8 of the Code of Administrative Offences (CAO)) and ordered his administrative removal and detention pending enforcement of the order. The Town Court dismissed as groundless claims made by the applicant that he risked ill-treatment in Tajikistan and specifically noted that he had not applied for asylum. It also dismissed as unsubstantiated claims that his removal would interfere with his family life, since no relevant evidence had been presented to the court.
9. On 28 June 2018 the Supreme Court of the Kabardino-Balkariya Republic upheld the lower court’s judgment.
2. Proceedings before the Court
10. On 3 July 2018 the Court received a request dated 30 June 2018 for an interim measure under Rule 39 of the Rules of Court. Referring to his prosecution in Tajikistan, the applicant claimed that he ran a real risk of ill‑treatment in the event of expulsion, given the poor human-rights record of that country and the international reports on torture of persons charged with religious and politically motivated crimes.
11. On 4 July 2018 the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Russian Government, under Rule 39, that the applicant should not be removed to Tajikistan for the duration of the proceedings before the Court. The parties were further requested, under Rule 54 § 2 (a), to submit by 18 July 2018 the factual information on the status of the applicant’s asylum request.
12. On 18 July 2018 the Russian Government informed the Court that the applicant’s request for refugee status of 26 June 2018 had been submitted to the immigration authorities via the administration of the special centre for the temporary detention of aliens in the Kabardino‑Balkariya Republic. On 6 July 2018 the request was accepted for examination by the immigration authorities and the applicant was issued a certificate confirming the examination of his asylum request. The Government further stated that a decision on the request would be taken by 6 October 2018, that is within the applicable time-limit prescribed by the legislation in force.
13. On the same date the applicant’s representative confirmed that the asylum request had been submitted to the immigration authorities.
14. On 20 July 2018 the applicant was informed that on 19 July 2018 the Court had reconsidered the application in the light of the information about the pending asylum request provided by the Government on 18 July 2018 and had decided, in view of that information, to lift the previously indicated interim measure and to discontinue priority treatment of the application under Rule 41 of the Rules of Court. He was further advised that that decision did not preclude him from lodging a new request for an interim measure if further developments in the case warranted it.
RELEVANT DOMESTIC LAW AND PRACTICE
15. In the present case the applicant was a party to extradition, administrative-removal and refugee-status proceedings, which are separate and distinct types of proceedings in the Russian legal system. They are regulated respectively by the Criminal Procedure Code of 2001, the Code of Administrative Offences of 2001 and the Refugees Act of 1993.
A. Extradition proceedings
16. The relevant provisions of the domestic law on extradition were previously cited by the Court in the judgment in the case of Savriddin Dzhurayev v. Russia (no. 71386/10, §§ 70-76, ECHR 2013 (extracts)).
B. Administrative-removal proceedings
17. The relevant provisions of the domestic law on administrative removal were previously cited by the Court in the judgments in the cases of L.M.and Others v. Russia (nos. 40081/14 and 2 others, §§ 61-62, 15 October 2015) and S.K. v. Russia (no. 52722/15, § 23-29, 14 February 2017).
C. Refugee-status and temporary asylum proceedings
18. The Refugees Act 1993 defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it (section 1 (1) (1)).
19. After a person has applied for asylum, the immigration authorities interview the asylum seeker, verify the validity of information about him and his family members, the circumstances of his or her arrival in Russia, his immigration status, and the grounds and reasons for the request. Having examined the above information, the immigration authorities either issue an asylum-seeker certificate, or refuse examination of the request on the merits, or refuse refugee status (section 3 (3)). The above-mentioned certificate serves as an identity document for the asylum seeker and entitles him to claim social-security benefits and medical cover, as well as assistance in travel, residence and employment matters.
20. Persons who have applied for or been granted refugee status cannot be returned against their will to the State of which they are a national where their life or freedom would be imperilled on account of their race, religion, nationality, or their membership of a particular social group or political opinion (sections 1 and 10 (1)).
21. If an asylum seeker receives a refusal to examine his or her application for refugee status on the merits or a refusal of refugee status, he or she must leave the territory of Russia within one month of receiving notification of the refusal if no appeal has been lodged (section 5 (5)) or within three days of receiving notification of the final appeal decision (section 10 (5)). Such appeals may be lodged with a superior administrative authority or a court. As long as these administrative and judicial appeal proceedings are pending a person seeking a refugee status or a temporary asylum is under no obligation to leave the country (sections 10 (4) and (5) and 12 (3) and (4)). If the appeal is rejected and the person concerned still refuses to leave the country, he or she must be deported (section 13 (2)).
22. The Refugees Act 1993 defines a temporary asylum seeker as a person who is not a Russian national and who 1) has grounds to be recognised as a refugee, but limits himself or herself to a request of temporary stay in Russia, or 2) does not have grounds to be recognised as a refugee, but must not be removed or deported on humanitarian grounds (section 12). The persons seeking temporary asylum receive a certificate, which serves as an identity document and entitles him or her to the protection afforded by the Refugees Act 1993 (section 12 (3) and (4)). Further legal provisions on temporary asylum were previously cited by the Court in the decision in the case of Tukhtamurodov v. Russia ((dec.), no. 21762/14, §§ 24-27, 20 January 2015).
D. The Supreme Court of the Russian Federation
23. Point 26 of Ruling no. 11 of 14 June 2012 adopted by the Plenum of the Supreme Court of the Russian Federation provided guidance to the Russian courts on the interrelation of refugee status and extradition proceedings. Referring to the Convention, the Universal Declaration of Human Rights and the 1951 Refugee Convention, the Supreme Court effectively indicated that pending refugee-status or asylum proceedings, both at the administrative level and on judicial review, must not prevent the judicial review of extradition authorisations. The Supreme Court clarified that even if an extradition decision was found to be lawful and well‑founded, the above-mentioned asylum proceedings prevented any de facto transfer of a person to a requesting State. In other words, they have a suspensive effect while the consideration of an asylum request by the immigration authorities or the judicial review of a refusal is in progress.
24. Case-law Overview no. 3 (2015) adopted by the Plenum of the Supreme Court on 25 November 2015 included judgment no. 14-AD15-3 of 29 June 2015 issued on appeal against the administrative-removal order under Article 18.8 of the CAO (breach of immigration rules). In that judgment the Supreme Court annulled the removal order, referring to international human rights instruments, including the Convention, citing the above-mentioned Ruling no. 11 of 14 June 2012 as establishing analogous principles, and having regard to the complaints about a real risk of ill‑treatment in the event of removal and pending asylum proceedings.
COMPLAINTS
25. The applicant complained that his removal to Tajikistan would expose him to a real risk of being subjected to treatment in violation of Article 3 of the Convention. He also lodged related complaints under Articles 5, 8, and 13 of the Convention.
THE LAW
26. The applicant complained that in the event of his administrative removal to Tajikistan, he would face a real risk of treatment contrary to Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
27. The Court notes that the Nalchik Town Court of the Kabardino‑Balkariya Republic ordered the applicant’s administrative removal and that order was upheld by the final judgment in the removal proceedings adopted by the Supreme Court of the Kabardino-Balkariya Republic on 28 June 2018 (see paragraph 8 – 9 above). The Court further notes that on 26 June 2018 the applicant applied for refugee status and that on 6 July 2018 his application was accepted for examination by the immigration authorities and the relevant certificate was issued to him (see paragraph 12 above).
28. The Court observes that according to domestic law and practice, a pending and certified application for refugee status or temporary asylum does not prevent the authorities from pursuing extradition or expulsion proceedings and adopting final decisions in those proceedings. However, any de facto removal of a person to his country of origin is barred while an asylum application is being considered by the immigration authorities or the judicial review of a refusal is in progress (see paragraphs 19-24 above).
29. Accordingly a person who has applied for refugee status or temporary asylum and obtained the relevant certificate, benefits from the suspensive effect of the asylum proceedings in respect of extradition or expulsion, even if the relevant removal decisions are final and hypothetically enforceable.
30. As a consequence, such a person does not face a risk of being removed from Russia at least for as long as the asylum proceedings are pending and thus no related risk of being subjected to treatment contrary to Article 3 of the Convention exists.
31. In the present case, the Court on 19 July 2018 reconsidered the previous indication of the interim measure staying the applicant’s removal to Tajikistan and lifted it in the light of the information on the applicant’s asylum procedure submitted by the parties (see paragraph 14 above).
32. At present that asylum procedure is still pending and the applicant is currently not at risk of being removed from Russia to Tajikistan or any other country. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible under Article 35 § 3 (a) of the Convention.
33. The applicant also complained under Articles 5, 8, and 13 of the Convention about his detention pending extradition and expulsion from Russia. He alleged that the decision of the Russian authorities to remove him, as well as the lack of effective domestic remedies in respect of the above complaints, constituted an interference with his family life. Having considered the available material, the Court finds that these complaints are manifestly ill-founded and must be declared inadmissible under Article 35 § 3 (a) of the Convention.
34. The Court notes that the above conclusions do not prevent the applicant from lodging a new application, including any possible complaints under Article 3 of the Convention, should the developments in his case warrant it.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 October 2018.
Stephen Phillips Vincent A. De Gaetano
Registrar President
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