Last Updated on November 22, 2019 by LawEuro
Communicated on 24 September 2019
THIRD SECTION
Application no. 7295/19
K.G.
against Russia
lodged on 4 February 2019
STATEMENT OF FACTS
1. The applicant, Mr K.G., is a Tajik national, who was born in 1990. 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 B.M. 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. On 3 April 2017 the applicant was charged in Tajikistan with participating in the Islamic State group (“ISIS”) and recruiting persons to fight in the Middle East. Specifically, he was accused, in conspiracy with A., of disseminating, via telephone applications, videos of ISIS fighters in combat in Iraq and Syria at the beginning of 2017. The videos were used to induce nationals of Tajikistan residing in Russia, including a certain P., to join the armed conflict. In February 2017 P. bought a ticket to Amman, but on the day of his travel he was intercepted by Russian law-enforcement agents in the airport.
4. On 8 April 2017 an international search warrant in the applicant’s name was issued by the Tajik authorities.
5. On 2 November 2017, during an operation consisting of random roadside checks by the police, the applicant was intercepted and subsequently arrested in the Kabardino-Balkariya Republic in Russia.
6. On the same day he was interviewed by a police officer in connection with his arrest. The applicant was notified of his right to a lawyer, his right to stay silent and his right to use the services of an interpreter, but did not choose to rely on these rights. He stated during the interview that he had not been persecuted on political grounds and had never applied for asylum in Russia. He further stated the following:
“… I have no knowledge why I am [subject to a search warrant, and I have] never had problems with the law-enforcement authorities of Tajikistan …
I have no knowledge [of the provisions] of Article 401.1 of the Criminal Code of Tajikistan … I have never been criminally prosecuted, have never been abroad [except for Russia], have never visited Syria or Iraq, and I do not support the persons involved in illegal armed entities in Russia or [abroad] …
I have been practising religion since childhood, but have no radical views, and hold a very negative view of terrorist activities …”
7. Later on that day the applicant was formally arrested pending extradition. He was provided with a lawyer and he refused the services of an interpreter.
8. On 3 November 2017 the Zolskiy District Court of the Kabardino‑Balkariya Republic detained the applicant pending extradition. According to the transcript of the hearing, which has not been challenged by the applicant, he stated the following:
“Your Honour! I object to the charges. I ask you to release me, [because] I myself want to go to Tajikistan and to clear this matter up in person.”
9. The extradition proceedings are pending.
10. On 14 June 2018 the Nalchik Town Court of the Kabardino‑Balkariya Republic ordered the applicant’s administrative removal owing to a violation of immigration rules and placed him in detention pending removal. On 28 June 2018 the Supreme Court of the Kabardino-Balkariya Republic upheld the lower court’s order in a final judgment.
11. On 28 September 2018 an asylum request made by the applicant was refused by the immigration authorities. On 1 March 2019 the Supreme Court of the Kabardino-Balkariya Republic upheld that decision in a final judgment and dismissed the claims based on the alleged belonging to a vulnerable group. The domestic court stated that the applicant had failed to furnish information on the existence of the alleged risks and to refer to specific facts proving his position. It stressed that the applicant himself never claimed that he had personally suffered from any persecution and that the temporary asylum request had been submitted in an effort to regularise his stay in Russia.
12. On 5 February 2019, 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 until 20 February 2019. Subsequently, the latter date the Court in the light of the information received from the applicant decided to prolong until the end of the proceedings previously indicated interim measure.
Criminal Code of Tajikistan
13. The Criminal Code of Tajikistan of 1998 lists various crimes against the State, constitutional order and national security in Title XIII, entitled “Crimes against the State”. Those crimes include treason, making public calls for a violent change to the constitutional order, illegal seizure of power, organising and participating in extremist groups or riots and other similar criminal actions.
14. Title XV of the Code, entitled “Crimes against Peace and Public Security”, lists various crimes in the field of international humanitarian law and the law of armed conflict. Article 401.1 prohibits the recruitment of Tajik nationals and stateless persons for armed conflicts taking place outside of Tajikistan and reads as follows:
Article 401.1 Unlawful recruitment and participation of Tajik nationals
and/or stateless persons in armed entities, armed conflicts and combat actions on the territory of other States
“The unlawful recruitment of Tajik nationals and/or stateless persons who are permanently resident in Tajikistan for armed entities, armed conflicts and combat actions on the territory of other States, as well as the unlawful participation of Tajik nationals and/or stateless persons who are permanently resident in Tajikistan in armed entities, armed conflicts and combat actions on the territory of other States, is punishable by a deprivation of liberty of between twelve and twenty years.
Addendum: A person who voluntarily renounces his or her unlawful participation in armed entities, armed conflicts or combat actions on the territory of other States, prior to the dissolution of the armed entity or the end of the armed conflict or combat action, is relieved of criminal liability if his or her actions do not otherwise constitute a crime.”
Reports on the situation in Tajikistan
15. In 2017 report the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on his mission to Tajikistan (A/HRC/35/22/Add.2). Notably, the report stated the following:
“…
VI. Restrictions on opposition voices
35. Throughout the Special Rapporteur’s visit, the prevailing concern of nearly all interlocutors outside the Government was the nature of restrictions, followed by criminalization, of the opposition parties, especially the Islamic Renaissance Party of Tajikistan and the political collective known as “Group 24”. The space for political opposition voices in Tajikistan had already come under severe threat in recent years. The dismantling of the most important political opposition force, the Islamic Renaissance Party of Tajikistan, and the persecution and criminalization of its members, as well as of other potentially independent political forces, highlight the lack of space for opposing the ruling authorities…
36. … The new [2016] ban on political parties based on religion is especially relevant as it directly affects the constituency previously represented by the Islamic Renaissance Party of Tajikistan, which was the only religiously affiliated political party in existence in Tajikistan or in any of the former Soviet successor States in Central Asia…
39. Just as they have imposed a pall over the media, the counter-terrorism and antiextremism laws have played a central role in the dismantling and criminalization of the relevant political opposition forces in the country. Based on the definitions of terrorism and extremism in those laws, the Prosecutor General and the Supreme Court declared that the Islamic Renaissance Party of Tajikistan and the political collective Group 24 were extremist or terrorist organizations and launched criminal proceedings against their members and, in some cases, against their members’ lawyers and relatives. During his visit, the Special Rapporteur was particularly disturbed by the recurrent use of extremism and terrorism concerns as a justification for numerous measures limiting freedom of expression and inhibiting political dissent, especially due to the vague definitions of what constitutes “extremism” and “terrorism”.
…
VIII. Limiting religious expression
59. Freedom of expression in the religious sphere is under serious threat. Government officials noted the relevance of article 26 of the Constitution, which guarantees religious freedom, but they asserted a need to limit certain religious activities. They argued that a number of religious manifestations had destabilizing effects on public order in Tajikistan or provided fertile ground for extremist ideology. Requiring religious organizations to register and giving the Government regulatory powers over religious activities is justified by the Government as a way to combat the threat of radicalization and extremism. Part of the government strategy in that regard is to control and monitor when, where and under what circumstances religious expression and religious education is permissible.
60. During the Special Rapporteur’s visit, government officials specifically cited the threat of the Islamic State in Iraq and the Levant as a growing concern and justification for the increased restrictions on religious practices. While the Special Rapporteur is cognizant of the security situation that Tajikistan faces, he is especially concerned that the approaches being taken not only violate the rights to freedom of expression and freedom of religion, but also may contribute to further radicalization due to the progressive and arbitrary alienation of certain groups and their leaders.
…”
16. The Committee against Torture, in the Concluding observations on the third periodic report of Tajikistan distributed on 18 June 2018 (CAT/C/TJK/CO/3), stated the following:
“…
7. Recalling its previous concluding observations (CAT/C/TJK/CO/2, para. 9), the Committee is concerned at allegations that torture and ill-treatment continue to be routinely practised by law enforcement officials in the State party, and at the data provided by the State party indicating that while 89 complaints of torture had been received by the Office of the Procurator General since the Committee’s previous review in 2012, only four individuals had been criminally convicted of torture under article 143 (1) of the Criminal Code and none of the sentences received by those individuals had exceeded three and a half years’ imprisonment. While noting that the State party provided additional data on cases in which the Tajik authorities had prosecuted public officials for engaging in conduct amounting to torture or ill‑treatment, using other articles of the Criminal Code, the Committee remains seriously concerned at the low proportion of criminal investigations opened into such allegations compared to the number of complaints of torture and ill-treatment received (arts. 2, 10, 11, 12, 13, 14, 15 and 16).
…”
17. The Human Rights Committee, in the Concluding observations on the third periodic report of Tajikistan distributed on 22 August 2019 (CCPR/C/TJK/CO/3), noted the following:
“…
31. While noting the measures taken to combat torture, including legislative reforms such as the amendments to the Code of Criminal Procedure in 2016 and the increase in the penalty for torture, the Committee remains concerned about: (a) continued reports of torture or ill-treatment of persons deprived of their liberty, particularly for the purposes of extracting confessions, including against human rights defenders and political opponents, such as in the cases of members of the banned Islamic Renaissance Party Mahmadali Hayit and Rahmatullo Rajab, and of Zayd Saidov; (b) admission of evidence obtained under torture by domestic courts, despite such evidence being inadmissible in law; (c) the absence of an independent mechanism to investigate all allegations of torture or ill-treatment and the low number of investigations and prosecutions (arts. 2 and 7).
…
53. The Committee notes with concern that the ban on religious and ethnicity-based political parties, introduced by the constitutional amendments of 2016, raises issues of compatibility with the Covenant. It remains concerned (see CCPR/C/TJK/CO/2, para. 24) about politically motivated harassment of opposition members that undermines genuine political pluralism and notably about: (a) the harassment and lengthy prison sentences handed down in respect of the leaders of the Islamic Renaissance Party after unfair and closed trials (see para. 37 above) and the imprisonment of party members following the designation of the party in 2015 as “terrorist” for their alleged involvement in the attempted violent seizure of power; (b) the persecution of members of the opposition movement, Group 24, which was declared as “extremist”, including prosecutions, convictions and the alleged enforced disappearance of Ehson Odinaev in 2015; and (c) serious harassment, and often imprisonment, of family members of opposition groups or of individuals associated with such groups (arts. 7, 9, 14, 19, 22 and 25).
…”
18. Human Rights Watch’s World Reports for the years 2017-2019 stated the following in respect of the issues related to the applicant’s allegations:
World Report 2017
“Tajikistan’s human rights situation deteriorated sharply in 2016, as authorities sentenced the leadership of the country’s main opposition party to lengthy prison terms, imprisoned human rights lawyers and other perceived government critics.
…
Authorities organized and led numerous acts of retaliation, including incidents of mob violence, against relatives of government critics abroad. Activists reported cases of torture and deaths in custody of persons imprisoned on politically motivated charges. The government continued its multi-year campaign to enforce severe restrictions on religious practice.”
World Report 2018
“Since mid-September 2015, following the forced closure of Tajikistan’s leading opposition party, the Islamic Renaissance Party of Tajikistan (IRPT), authorities have subjected party members and their relatives to arbitrary detention and imprisonment, in addition to persons associated with the opposition movement Group 24 and other critical groups. Authorities regularly harass relatives of critics living abroad …”
World Report 2019
“Tajik authorities jailed government critics, including opposition activists, journalists, and relatives of peaceful dissidents abroad, for lengthy prison terms on politically-motivated grounds. The crackdown on freedoms of expression, association, and religion extended to virtually any manifestation of dissent, even social media users who expressed mild criticism of government policy. …
Authorities intensified their campaign to forcibly return political opponents from abroad, relying on politically-motivated extradition requests made via INTERPOL, the international police organization, as well as on alliances with police and security services in Turkey and Russia. The most frequent targets of the reportedly hundreds of INTERPOL “red notices” and other extradition requests lodged by the Tajik government are members of the Islamic Renaissance Party of Tajikistan (IRPT) and opposition movement Group 24, both banned and labelled “extremist” in Tajikistan.
…
Tajikistan also detained or forcibly returned to the country other opposition activists in various countries, including [N], the former IRPT head in the Sughd region in northern Tajikistan, who was detained in Russia on November 30 and immediately forced his return to Tajikistan, where relatives reported he had been detained by Tajik security services and faces a high risk of torture.
…
The Tajik government severely curtails freedom of religion or belief, proscribing certain forms of dress, including the hijab for women and long beards for men. Salafism, a fundamentalist strand of Islam, has been officially banned in Tajikistan since 2011 and authorities regularly arrest individuals for alleged membership in Salafi groups.
In August, authorities charged opposition blogger [J] over his alleged ties to Salafi armed extremists … Following his sentencing [J] told journalists in the courtroom that his case was politically-motivated retaliation for articles he had written accusing local officials of involvement in corruption and that “these publications have nothing to do with Salafiya [Salafism].” In August, Tajikistan amnestied seven Salafis, previously extradited from Russia, after they announced their withdrawal from the movement.”
19. Amnesty International’s Annual Reports for the years 2016-2018 included the following information:
Annual Report 2016/2017
“Members of the banned opposition Islamic Renaissance Party of Tajikistan (IRPT) were sentenced to life and long-term imprisonment on terrorism charges in blatantly unfair secret trials. Allegations that they were tortured to obtain confessions were not effectively and impartially investigated …”
Annual Report 2017/2018
“Public order and counter-terrorism concerns, real and perceived, dominated the political agenda. The authorities relentlessly invoked national security issues to justify ever harsher restrictions on perceived dissent, on the grounds that these measures ensured stability and preserved cultural traditions. The UN Special Rapporteur on the right to freedom of opinion and expression noted in his June report that since his 2016 visit to Tajikistan the “draconian restrictions on opposition voices and the squeezing of civil society” had continued to worsen. He concluded that “the Government is obligated under human rights law to reconsider its entire approach to restricting the opposition, the media, the Internet, and civil society as a whole.”
COMPLAINTS
20. The applicant, referring to the charge against him and the Court’s case-law on removals of person charged with religiously and politically motivated crimes to Tajikistan, complained under Article 3 of the Convention that he would face a real risk of ill-treatment in the event of his removal to his country of origin. He further lodged an ancillary complaint under Article 13 of the Convention.
QUESTIONS
1. In the light of the general situation in Tajikistan and the applicant’s personal circumstances, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced (see F.G. v. Sweden [GC], no. 43611/11, § 114, 23 March 2016)? Does the applicant belong to a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in case of transfer to Tajikistan (see K.I. v. Russia, no. 58182/14, §§ 34-36, 7 November 2017)?
Before deciding on the applicant’s expulsion, did the Russian authorities carry out an adequate and rigorous assessment of his claim about the risks of ill-treatment in his country of origin (see Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011, and F.G. v. Sweden [GC], cited above, § 119)?
If the applicant runs a risk of ill-treatment in case of his removal to Tajikistan, what measures (such as obtaining assurances from Tajik Government) have been taken or could be envisaged by the Russian Government in order to mitigate that risk?
2. In respect of the applicant’s above complaint, did he have at his disposal an effective remedy, as required by Article 13 of the Convention?
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