THIRD SECTION

CASE OF A.Y. AND OTHERS v. RUSSIA

(Applications nos. 29958/20 and 2 others - see appended list)

JUDGMENT
 

STRASBOURG

17 January 2023

This judgment is final but it may be subject to editorial revision.

In the case of A.Y. and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Jolien Schukking, President,
 Peeter Roosma,
 Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;

the decision not to have the applicants’ names disclosed;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning ordered expulsion of two applicants and forcible transfer of one of the applicants to Tajikistan, lack of effective domestic remedies, interference with an effective exercise by one of the applicants of right to an individual application and unlawful detention of two of the applicants pending expulsion, and the decision to declare inadmissible the remainder of the applications;

the decision to give priority (Rule 41 of the Rules of Court) to the applications nos. 29958/20 and 41820/20 and the decision to indicate interim measure to the respondent Government under Rule 39 of the Rules of Court in those applications;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 6 December 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns (i) the ordered expulsion of two of the applicants (A.Y. and F.K.) and the alleged abduction and forced transfer of one of them (F.K.) to Tajikistan; (ii) the alleged lack of official investigation into the alleged abduction and transfer of F.K.; (iii) the alleged absence of effective domestic remedies in respect of those complaints; (iv) the alleged breach of A.Y.’s right of individual application; and (v) the allegedly unlawful detention of applicants, F.K. and S.P., pending their expulsion.

2.  The applicants’ personal details and other relevant information about their cases are set out in Appendix I.

3.  In 2015 and 2017 the Tajikistani authorities charged A.Y. and F.K. with crime of political extremism. S.P. was charged with crime of religious extremism in 2016 in Uzbekistan. The pre-trial detention of the applicants was ordered in absentia, and international search warrants were issued by the national authorities of Tajikistan and Uzbekistan. The applicants were detained in Russia pending their extradition. The Russian authorities subsequently ordered administrative expulsion of A.K. and F.K. to Tajikistan and S.P. to Uzbekistan and they were detained pending their expulsion (see Appendix I).

On different dates the Court granted requests for the application of interim measures in respect of A.Y. and F.K. A.Y. was transferred to Tajikistan on 21 July 2020 by a regular flight; the Government contended that the interim measure issued earlier had been lifted by that time. F.K. was, allegedly, transferred to Tajikistan in a military aircraft on 22 September 2020 from the Domodedovo airport (Moscow). The Russian Government disputed this allegation and suggested that the applicant had left Russia voluntarily for Tajikistan on that day (see Appendix I).

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

4.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION in cases of a.y. and f.k.
   1. Ordered expulsion of A.Y. and F.K. to Tajikistan

5.  Applicants A.Y. and F.K. complained that the Russian authorities had failed to duly consider their claims that their expulsion to Tajikistan, if carried out, would expose them to a real risk of ill-treatment there (see Appendix I). The Government submitted that both applicants had not demonstrated that substantial grounds existed for believing that they would face the real risk of treatment in violation of Article 3 of the Convention in the event of their expulsion.

6.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7.  In so far as A.Y.’s and F.K.’s complaint concerns the risk of ill‑treatment that they ran in Tajikistan, the present case is identical to cases in which the Court previously established that individuals whose extradition was sought by Tajik authorities on charges of religiously or politically motivated crimes constituted a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to Tajikistan (see K.I. v. Russia, no. 58182/14, 7 November 2017; Savriddin Dzhurayev v. Russia, no. 71386/10, ECHR 2013 (extracts); Nizomkhon Dzhurayev v. Russia, no. 31890/11, 3 October 2013; and Gaforov v. Russia, no. 25404/09, 21 October 2010). Furthermore, given the nature of the charges against the applicants, the manner in which the indictment was issued against them (see Appendix I “Removal proceedings”) and perfunctory judicial review of their allegations by the domestic courts (ibid), the Court finds no reason to depart from its earlier findings in similar cases and concludes that at the time of their ordered expulsion to Tajikistan a real risk had existed that A.Y. and F.K. would be subjected in Tajikistan to treatment proscribed by Article 3 of the Convention. There has accordingly been a violation of Article 3 on account of A.Y.’s and F.K.’s ordered expulsion to Tajikistan.

2. Alleged abduction and forcible transfer of F.K.

8.  F.K. also complained, under Article 3 of the Convention, about his alleged abduction and illegal transfer to Tajikistan (see Appendix I, “Detention” and “Other relevant information”). The Government denied any involvement in his departure for Tajikistan.

9.  As in other similar cases, the Court should examine whether the authorities (i) complied with their obligation to protect the applicant against the risk of the treatment contrary to Article 3 of the Convention; (ii) conducted an effective investigation into the applicant’s disappearance, and (iii) should be held accountable for the applicant’s disappearance (see Mukhitdinov v. Russia, no. 20999/14, § 59, 21 May 2015).

10.  Having regard to its findings in paragraph 7 above and taking into account the circumstances of F.K.’s case which are very similar to other cases where the repetitive pattern of disappearances was established of applicants who were last seen in the custody of State authorities, the Court is satisfied that the Russian authorities were aware that F.K. could face a forcible transfer to the country where he could be subjected to torture or ill-treatment and that relevant measures of protection should have been taken by them (see Mukhitdinov, cited above, § 62, and, as a recent example, N.K. v. Russia [Committee], no. 45761/18, 29 March 2022).

11.  Furthermore, where, as in the present case, the authorities of a State party are informed of illegal transfer of a person from Russia, they have an obligation under the Convention to conduct an effective investigation (see Savriddin Dzhurayev, cited above, § 190). The Court however notes from the material of the case file that no attempt was made to carry out thorough investigation into F.K.’s alleged abduction (see Appendix I, “Other relevant information”).

12.  Lastly, in the view of the above and having regard to the facts as alleged by the applicant and his representatives and confirmed by their detailed written statements, and the Government’s failure to substantiate their version of facts about voluntary nature of F.K.’s return with results of the domestic investigation or other evidence (see Appendix I, “Other relevant information”, and see Khamidkariyev v. Russia, no. 42332/14, § 120, 26 January 2017), the Court is satisfied that the applicant has been subject of an illegal forcible transfer by unidentified persons with the passive or active involvement of State agents (see Savriddin Dzhurayev, cited above, §§ 177‑85, 197-204, 214-19, and compare with N.K. v. Russia, cited above, § 9).

13.  Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that, in breach of Article 3, the Russian authorities exposed F.K. to a real risk of ill-treatment in Tajikistan by ordering his removal, that they were implicated in his forcible return there and they failed to carry out an effective investigation into his abduction.

14.  There has accordingly been a violation of Article 3 of the Convention in respect of F.K. on account of his disappearance and forcible transfer to Tajikistan.

3. Alleged violation of Article 34 of the convention in case of A.Y.

15.  In so far as A.Y. alleged that his expulsion had been in breach of an interim measure indicated by the Court under Rule 39 of Rules of the Court and that there had been a hindrance by the State of the effective exercise of his right of application, the Court notes the following. The Government did not argue before the Court that there had been an exceptional objective impediment which prevented compliance with the interim measure applied by the Court on 21 July 2020 and did not demonstrate that it had taken all reasonable steps to remove the impediment (see Paladi v. Moldova [GC], no. 39806/05, § 92, 10 March 2009). The Court has already pointed out recurring failures of the Russian Government to comply with an interim measure indicated under Rule 39 of the Rules of Court in cases of applicants whose extradition was sought on extremism or terrorism related crimes in Uzbekistan and Tajikistan and who disappeared or were illegally transferred there (see Savriddin Dzhurayev, cited above, §§ 177-205, and Mukhitdinov, cited above, §§ 59-76 and 91-96, with further references). In the light of that case law and given the circumstances of A.Y.’s case (see Appendix I, “Other relevant proceedings”), the Court accordingly holds that the Russian Government had not complied with an indication of interim measure indicated under Rule 39 of the Rules of the Court and nothing had objectively impeded that compliance. They therefore failed to comply with their obligations under Article 34 of the Convention (see O.O. v. Russia, no. 36321/16, §§ 59-63, 21 May 2019).

4. OTHER ALLEGED VIOLATIONS OF THE CONVENTION UNDER THE WELL-ESTABLISHED CASE-LAW

16.  S.P. and F.K. also raised other complaints under Article 5 § 1 which are covered by the well‑established case-law of the Court. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it (see Appendix I, “Detention”), the Court concludes that they disclose a violation of Articles 5 § 1 of the Convention in the light of its findings in the following judgments (see, among many others, R.K. v. Russia, no. 30261/17, §§ 62-65, 8 October 2019).

5. OTHER COMPLAINTS

17.  A.Y. and F.K. also complained under Article 13 of the Convention that there had been no effective domestic remedies in respect of their complaints under Article 3. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case (see paragraphs 7, 11 and 12 above) and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014).

6. RULE 39 OF THE RULES OF COURT

18.  In the cases of A.Y. and F.K., on dates specified in Appendix I, the Court indicated to the respondent Government, under Rule 39 of the Rules of Court that they should not be removed from Russia to Tajikistan for the duration of the proceedings before the Court. In accordance with Article 28 § 2 of the Convention, the present judgment is final. Accordingly, the Court considers that the measures indicated to the Government under Rule 39 of the Rules of Court in respect of A.Y. and F.K. in the present case have come to an end.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicants claimed the amounts indicated in Appendix II, in respect of non-pecuniary damage and costs and expenses.

20.  The Government submitted that the amounts claimed by all applicants in respect of non-pecuniary damage were excessive and, in any case, no award should be made as no violation of the applicants’ right had taken place. In respect of claim for costs and expenses submitted by A.Y. and S.P., they contended that it should be rejected because no legal services agreements had been submitted in support of it. As for F.K.’s claim for costs and expenses, the Government submitted that the legal services agreement had been made between his lawyers and his wife and that F.K. had not shown that he had actually incurred those expenses.

21.  The Court awards the applicants the amounts indicated in Appendix II, in respect of non-pecuniary damage plus any tax that may be chargeable to the applicants, to be paid directly to the bank accounts of the applicants’ representatives, as indicated, for subsequent transfer to the applicants.

22.  Having regard to the documents in its possession, the Court rejects A.Y.’s and S.P.’s claim for costs and expenses and awards F.K., under this head, the amount indicated in Appendix II, plus any tax that may be chargeable to him, to be paid directly to the bank accounts of his representatives, and dismisses the remainder of the claims for just satisfaction.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares A.Y.’s and F.K.’s complaints under Article 3 of the Convention and S.P.’s and F.K.’s complaints under Article 5 § 1 admissible;
3. Holds that there has been a violation of Article 3 of the Convention in respect of A.Y. and F.K.;
4. Holds that the respondent State failed to comply with its obligations under Article 34 of the Convention in respect of A.Y.;
5. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of S.P. and F.K.;
6. Holds that there is no need to examine the admissibility and merits of A.Y.’s and F.K.’s complaint under Article 13 of the Convention;
7. Holds

(a)  that the respondent State is to pay each applicant, within three months, the amounts indicated in Appendix II, plus any tax that may be chargeable, in respect of non-pecuniary damage, and to F.K. in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and both awards to be payable directly to the representatives’ bank accounts, as indicated in Appendix II;

(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;

8. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova  Jolien Schukking
 Deputy Registrar President

APPENDIX I

APPENDIX II