CASE OF S.S. AND OTHERS v. RUSSIA

 
 
 
THIRD SECTION
 
 
 
 
 
 
 
 
 
CASE OF S.S. AND OTHERS v. RUSSIA
 
(Applications nos. 2236/16 and 3 others)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
 
 
STRASBOURG
 
25 June 2019
 
 
 
This judgment is final but it may be subject to editorial revision.

In the case of S.S. and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 4 June 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in four applications (nos. 2236/16, 64042/17, 81344/17 and 4067/18) 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 Uzbek and two Tajik nationals (“the applicants”) on the various dates indicated in the appended table.
2.  The applicants were represented by various lawyers as indicated in the appended table. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
3.  On various dates the applicants’ requests for interim measures preventing their removal were granted by the Court under Rule 39 of the Rules of Court. The applicants’ cases were granted priority (Rule 41) and confidentiality (Rule 33) and the applicants were granted anonymity (Rule 47 § 4).
4.  The applicants submitted complaints under Articles 3, 5 and 13 of the Convention. On various dates the complaints were communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicants are nationals of Tajikistan and Uzbekistan. Their initials, dates of birth, the dates on which their applications were introduced, application numbers, as well as the particulars of the domestic proceedings and other relevant information are set out in the Appendix.
6.  On various dates they were charged in their countries of origin with religious and politically motivated crimes, their pre-trial detention was ordered in absentia, and international search warrants were issued by the authorities.
7.  Subsequently, the Russian authorities took final decisions to extradite or to expel the applicants, despite their consistent claims that in the event of return to their countries of origin they would face a real risk of being subjected to treatment contrary to Article 3 of the Convention.
II.  RELEVANT DOMESTIC LAW
8.  The relevant domestic and international law is summarised in the Court’s judgments on removals from Russia to Tajikistan and Uzbekistan (see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 70‑101, ECHR 2013 (extracts), and Akram Karimov v. Russia, no. 62892/12, §§ 69-105, 28 May 2014).
III.  REPORTS ON TAJIKISTAN AND UZBEKISTAN
9.  The references to the relevant reports by the UN agencies and international NGOs on the situation in Tajikistan were cited in the case of K.I. v. Russia (no. 58182/14, §§ 2-28, 7 November 2017) and on the situation in Uzbekistan 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).
10.  In respect of Uzbekistan 2019 World Report by Human Rights Watch indicated that there were certain promising steps to reform the country’s human rights record; however, many reforms are yet to be implemented. It further stated that a limited number of persons imprisoned on politically motivated charges had been released in 2016-2018. Furthermore, isolated incidents of security agency officers sentenced for torture and death in custody were cited. Amnesty International Report 2017/2018 reflected similar trends, including judicial independence and effectiveness as the priorities set by the authorities for the systemic reform. At the same time the report stressed that the authorities continued to secure forcible returns, including through extradition proceedings, of Uzbekistani nationals identified as threats to the “constitutional order” or national security.
11.  In respect of Tajikistan World Report by Human Rights Watch indicated that the authorities continued to exert pressure on political and religious dissent. However, it also noted that a certain number of persons extradited from Russia had been pardoned following their withdrawal from religious movements. Amnesty International Report 2017/2018 stated that restrictions were still used to silence critical voices and cited a case of a human rights lawyer allegedly tortured in detention.
THE LAW
I.  JOINDER OF THE APPLICATIONS
12.  Having regard to the similar subject matter of the applications, the Court decides in accordance with Rule 42 § 1 of the Rules of Court to examine them jointly.
II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
13.  The applicants complained under Article 3 of the Convention that the national authorities had failed to consider their claims that they would face a real risk of being subjected to ill-treatment in the event of their extradition/expulsion to their respective countries of origin. Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
14.  The Government contested that argument.
A.  Admissibility
15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  General principles
16.  The relevant general principles concerning the application of Article 3 have been summarised recently by the Court in the judgment in the case of F.G. v. Sweden ([GC], no. 43611/11, §§ 111-27, ECHR 2016) and in the context of removals from Russia to Central Asian states in Mamazhonov v. Russia (no. 17239/13, §§ 127-35, 23 October 2014).
2.  Application of those principles to the present case
(a)  Existence of substantial grounds for believing that the applicant faces a real risk of ill-treatment
17.  The Court has previously established that the individuals whose extradition was sought by either Tajik or Uzbek authorities on charges of religiously or politically motivated crimes constituted vulnerable groups facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to their respective countries of origin (see Mamazhonov, § 141, cited above, and K.I. v. Russia, no. 58182/14, § 36, 7 November 2017).
18.  Turning to the present cases, it is apparent that in the course of the extradition and expulsion proceedings the applicants consistently and specifically argued that they had been prosecuted for religious extremism and faced a risk of ill‑treatment. The Court further observes that documents from the Tajik and Uzbek authorities, i.e. the extradition requests, the bills of indictment and the detention orders, were clear as to their basis - the applicants were accused of religiously and politically motivated crimes. The Tajik and Uzbek authorities thus directly identified them with the groups whose members have previously been found to be at real risk of being subjected to proscribed treatment.
19.  In such circumstances, the Court considers that the Russian authorities had at their disposal sufficiently substantiated complaints pointing to a real risk of ill-treatment.
20. The Court is therefore satisfied that the applicants presented the Russian authorities with substantial grounds for believing that they faced a real risk of ill-treatment in their countries of origin.
(b)  Duty to assess claims of a real risk of ill-treatment through reliance on sufficient relevant material
21.  Having concluded that the applicants had advanced at national level valid claims based on substantial grounds for believing that they faced a real risk of treatment contrary to Article 3 of the Convention, the Court must examine whether the authorities discharged their obligation to assess these claim adequately through reliance on sufficient relevant material.
22.  Turning to the present cases, the Court considers that in the extradition and expulsion proceedings the domestic authorities did not carry out a rigorous scrutiny of the applicants’ claims that they faced a risk of ill‑treatment in their home countries. The Court reaches this conclusion having considered the national courts’ simplistic rejections of the applicants’ claims. Moreover, the domestic courts’ reliance in certain cases on the assurances of the Tajik and Uzbek authorities, despite their formulation in standard terms, appears tenuous, given that similar assurances have consistently been considered unsatisfactory by the Court in the past (see, for example, Abdulkhakov v. Russia, no. 14743/11, §§ 149-50, 2 October 2012, and Tadzhibayev v. Russia, no. 17724/14, § 46, 1 December 2015).
23.  The Court therefore concludes that the Russian authorities failed to assess the applicants’ claims adequately through reliance on sufficient relevant material. This failure cleared the way for the applicants’ removals.
(c)  Existence of a real risk of ill-treatment or danger to life in their countries of origin
24.  Given the failure of the domestic authorities to adequately assess the applicants’ claims, the Court finds itself compelled to examine independently whether or not the applicants would be exposed to such a risk in the event of their removal to their countries of origin.
25.  Court reiterates that previously it had consistently concluded that the removal of an applicant charged with religiously and politically motivated crimes in Uzbekistan and in Tajikistan exposes that applicant to a real risk of ill-treatment in the country of origin (see e.g. Mamazhonov, cited above; Kholmurodov, cited above; K.I. v. Russia, cited above; T.M. and Others v. Russia, cited above; and B.U. and Others v. Russia, no. 59609/17, 74677/17, 76379/17, 22 January 2019). While the Court notes with attention the cautious indications of improvement included in the independent reports (see paragraphs 10 and 11, above), nothing in the parties’ submissions in the present case or the relevant material from independent international sources provides at this moment a sufficient basis for a conclusion that the persons prosecuted for religiously and politically motivated crimes no longer run such a risk.
(d)  Conclusion
26.  The foregoing considerations are sufficient to enable the Court to conclude that there would be a violation of Article 3 of the Convention if the applicants were to be returned to their respective countries of origin.
III.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
27.  The applicants in the cases Z.K. v. Russia, no. 62042/17 and S.S. v. Russia, no. 4067/18 complained under Article 5 § 1 (f) of the Convention that their detention pending removal proceedings had been unlawful within the meaning of, since given the length it had become arbitrary, and under Article 5 § 4 of the Convention that they had no procedure allowing for review of validity of their continued detention. The relevant parts of Article 5 of the Convention read 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 ... 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...”
28.  The Government contested that argument. They stated that the applicants’ detention had been lawful and that no special procedure for the review of the continued validity of the detention is required as long as the authorities in good faith take action aimed at a person’s removal.
A.  Admissibility
29.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
30.  The Court observes that the general principles regarding the deprivation of liberty pending expulsion and availability of a mechanism for review of the continued detention have been stated in a number of its previous judgments (see, among others, Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996‑V, A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009).
31.  In the judgments in the cases of Azimov v. Russia (no. 67474/11, 18 April 2013) and Kim v. Russia (no. 44260/13, 17 July 2014) the Court already found a violation in respect of issues similar to those in the present cases.
32.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the cases Z.K. v. Russia, no. 62042/17 and S.S. v. Russia, no. 4067/18 the applicants’ detention pending expulsion had been unlawful and that they had no procedure allowing for review of their continued detention.
33.  Accordingly, there has been a breach of Article 5 §§ 1 and 4 of the Convention.
IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34.  The applicant in the case S.S. v. Russia, no. 2236/16 further complained under Article 13 about an alleged lack of effective remedies in respect of his Article 3 complaint.
35.   However, having regard to the facts of the case, the submissions of the parties and its above finding under Article 3 of the Convention, the Court considers that it has examined the main legal questions raised in the present applications and that there is no need to give a separate ruling on the remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).
V.  APPLICATION OF THE INTERIM MEASURES UNDER RULE 39 OF THE RULES OF COURT
36.  On various dates the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be removed from Russia to their respective countries of origin for the duration of the proceedings before the Court.
37.  In this connection the Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final.
38.  Accordingly, the Court considers that the measures indicated to the Government under Rule 39 of the Rules of Court come to an end.
VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.  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.  Damage
40.  The applicants claimed between 5,000 and 15,000 euros (EUR) in respect of non-pecuniary damage. The applicant in the case M.A. v. Russia, no. 81344/17 also claimed EUR 6,000 in respect of pecuniary damage alleging the loss of earnings.
41.  The Government in certain cases stated that the finding of a violation would in itself constitute a sufficient just satisfaction and in other cases that the award should be made in compliance with the case-law under Article 41 of the Convention.
42.  In the light of the nature of the established violations of Article 3 of the Convention and the specific facts of the present case, the Court considers that finding that there would be a violation of Article 3 of the Convention if the applicants were to be returned to their respective countries of origin constitutes sufficient just satisfaction in respect of any non‑pecuniary damage suffered (see, to similar effect, J.K. and Others v. Sweden [GC], no. 59166/12, § 127, ECHR 2016).
43.  At the same time having regard to its conclusions under Article 5 § 1 of the Convention in the cases Z.K. v. Russia, no. 62042/17 and S.S. v. Russia, no. 4067/18 and acting on an equitable basis, the Court awards each applicant EUR 5,000 in respect of non-pecuniary damage.
44.  As regards the claim of pecuniary damage in the case M.A. v. Russia, no. 81344/18, the Court does not discern any causal link between the violation found and the pecuniary damage alleged and, therefore, rejects this claim.
B.  Costs and expenses
45.  The applicants also claimed between EUR 3,780 and 5,640 for the costs and expenses incurred before the domestic courts and the Court, except the case M.A. v. Russia, no. 81344/17 where no such claim was submitted.
46.  The Government stated that no supporting documents were provided for the amounts claimed for the costs and expenses and suggested the requested amounts to be reduced.
47.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable that the sums indicated in the appended table be awarded and that these sums should be payable directly to the applicants’ representatives.
48.  Having regard that no claim of costs and expenses had been submitted in the case M.A. v. Russia, no. 81344/17, the Court is not called to make any award in this regard.
C.  Default interest
49.  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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides to join the applications;
 
2.  Declares the complaints under Article 3 of the Convention concerning the applicants’ pending removal to their respective countries of origin, as well as the complaints under Article 5 §§ 1 (f) and 4 of the Convention in the cases Z.K. v. Russia, no. 62042/17 and S.S. v. Russia, no. 4067/18 admissible;
 
3.  Holds that there would be a violation of Article 3 of the Convention if the applicants were to be returned to their respective countries of origin;
 
4.  Holds that there has been a violation of Article 5 of the Convention in the cases Z.K. v. Russia, no. 62042/17 and S.S. v. Russia, no. 4067/18;
 
5.  Holds that there is no need to examine the complaint under Article 13 of the Convention in the case S.S. v. Russia, no. 2236/16;
 
6.  Holds that the finding that there would be a violation of Article 3 of the Convention in case of the applicants’ return to their respective countries of origin constitutes in itself sufficient just satisfaction for the non‑pecuniary damage sustained by the applicants in this regard;
 
7.  Holds
(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that the sums awarded in respect of costs and expenses incurred in the proceedings before the domestic courts and this Court are to be payable directly to the applicants’ representatives;
(c)  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;
 
8.  Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 25 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
              Stephen Phillips Alena Poláčková
RegistrarPresident

No.
Application title,
date of birth,
nationality,
application no., lodged on,
represented by
 
Dates of detention and release
Removal proceedings
(type, progress, outcome)
Refugee and/or temporary asylum proceedings
Other relevant information
Just satisfaction award
1.
S.S. v. Russia
14/08/1982
Uzbekistan
 
App. no. 2236/16
12/01/2016
 
Daria Trenina
Eleonora Davidyan
 
Detention pending expulsion
 
15 January 2015 - detention pending deportation ordered by the Levoberezhniy District Court of Lipetsk, since then extended every three months
19 November 2018 - the Levoberezhniy District Court of Lipetsk refused to extend the detention and ordered release
20 November 2018 - the applicant released
26 November 2018 - the applicant allegedly apprehended by the FSB officers in Lipetsk
26 November 2018 - the applicant formally arrested in Belgorod
27 November 2018 - the applicant detention pending removal ordered by the Belgorodskiy District Court
24 December 2018 – the applicant released by the Belgorodskiy District Court
 
Extradition proceedings
 
January 2013 – detention order in absentia and international search warrant issued by the Uzbek authorities
 
Expulsion proceedings
 
2 October 2015 – the applicant’s stay in Russia declared undesirable by the Ministry of Justice
12 January 2016 - deportation ordered by the migration authorities of the Lipetsk Region
9 March 2016 - undesirability decision and deportation order upheld by the Zamoskvoretskiy District Court of Moscow
22 August 2016 - lower court’s decision upheld by the Moscow City Court
27 November 2018 - the applicant’s administrative removal ordered by the Belgorodskiy District Court
10 December 2018 - the Belgorod Regional Court annulled the expulsion order and ordered reconsideration
24 December 2018 - proceedings on the administrative removal terminated by the Belgorodskiy District Court
Temporary asylum proceedings
 
5 September 2016 - refused by the final administrative decision of the migration authorities
4 October 2017 - upheld by the final judgment of the Moscow City Court
12 September 2013 - conviction in Russia of trading in counterfeit money, sentenced to 3 years imprisonment
13 January 2016 - interim measure preventing the applicant’s removal to Uzbekistan
EUR 2,500 to Ms Trenina and Ms Davidyan jointly, in respect of costs and expenses incurred in the domestic proceedings and before the Court
 
2.
Z.K. v. Russia
12/11/1995
Uzbekistan
 
App. no 64042/17
31/08/2017
 
Daria Trenina
Eleonora Davidyan
Kirill Zharinov
 
Detention pending extradition
 
12 August 2016 – arrested and subsequently detained
11 August 2017 – release due to expiry of the maximum statutory period of detention
 
Detention pending expulsion
 
11 August 2017 – arrested and subsequently detained
The applicant is currently in detention
Extradition proceedings
 
9 March 2016 – international search warrant and detention order in absentia issued by Uzbek authorities
8 September 2016 – extradition request on charges of extremism
26 June 2017 – extradition request granted by the Russian Prosecutor General’s Office
10 October 2017 – extradition order upheld by the final judgment of the Supreme Court of the Russian Federation
 
Expulsion proceedings
 
14 August 2017 - the applicant’s expulsion ordered by the Lyublinskiy District Court of Moscow
31 August 2017 – the applicant’s expulsion upheld by the final judgment of the Moscow City Court
8 August 2018 - the Lyublinskiy District Court of Moscow on its own motion suspended the enforcement of the expulsion order pending proceedings before this Court
 
Refugee status proceedings
 
26 April 2017 – refusal to grant refugee status by the migration authorities
14 February 2018 – refusal upheld by the final judgment of the Moscow City Court
Temporary asylum proceedings
26 April 2017 – refusal to grant temporary asylum by the migration authorities
14 February 2018 – refusal upheld by the final judgment of the Moscow City Court
31 August 2017 – interim measure preventing the applicant’s removal
EUR 5,000 to the applicant in respect of the non‑pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention
 
EUR 2,500 to Ms Trenina, Ms Davidyan and Mr Zharinov jointly, in respect of costs and expenses incurred in the domestic proceedings and before the Court
 
3.
M.A. v. Russia
10/12/1988
Tajikistan
 
App. no. 81344/17
27/11/2017
 
Timofey Shirokov
Detention pending extradition
 
15 April 2016 – arrested and subsequently detained
12 October 2017 - released
Extradition proceedings
 
10 November 2015 – international search warrant issued by Tajik authorities
12 November 2015 – detention order in absentia by Tajik authorities
4 May and 3 October 2016 – extradition requests on charges of extremism
13 December 2016 – extradition request granted by the Russian Prosecutor General’s Office
25 May 2017 – extradition upheld by the Supreme Court of the Russian Federation
 
Expulsion proceedings
 
4 July 2018 - expulsion ordered by the Istrinskiy Town Court of the Moscow Region
10 July 2018 - annulled and reconsideration ordered by the Moscow Regional Court
 
None
None
None
4.
S.S. v. Russia
12/06/1981
Moscow
Tajikistan
 
App. no. 4067/18
05/02/2018
 
Daria Trenina
Eleonora Davidyan
Kirill Zharinov
 
Detention pending extradition
 
29 January 2017 – arrested and subsequently detained
26 January 2018 - released by a prosecutor
 
 
Detention pending expulsion
 
26 January 2018 – arrest and subsequent detention
The applicant is still in detention
Extradition proceedings
 
8 July 2016 – international search warrant issued by Tajik authorities
12 July 2016 - detention order in absentia issued by Tajik authorities
4 March 2017 - extradition request by the Tajik authorities
 
Expulsion proceedings
 
26 January 2018 – expulsion ordered by the Meshchanskiy District Court of Moscow
8 February 2018 – expulsion upheld by the final judgment of the Moscow City Court, enforcement stayed pending the proceedings before the Court
 
Refugee status proceedings
 
5 June 2017 – applied for refugee status
27 October 2017 - complaint about failure to consider a refugee status application dismissed by the migration authorities (application had been allegedly withdrawn)
19 February 2018 - complaint against the failure to consider the request dismissed by the Zamoskvoretskiy District Court of Moscow
6 September 2018 - appeal dismissed by the Moscow City Court
 
Temporary asylum proceedings
 
1 August 2017 - refusal of the migration authorities to grant him temporary asylum (while he applied for a refugee status)
17 October 2017 - appeal against the refusal to grant temporary asylum refused by the migration authorities
5 February 2018 – interim measure preventing the applicant’s removal
EUR 5,000 to the applicant in respect of the non‑pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention
 
EUR 2,500 to Ms Trenina, Ms Davidyan and Mr Zharinov jointly, in respect of costs and expenses incurred in the domestic proceedings and before the Court
 

Full & Egal Universal Law Academy