issued by the Registrar of the Court

ECHR 40 (2013)

05.02.2013

Deportation from Russia of Uzbek man suspected of

membership of illegal religious organisation exposed him to risk

of ill-treatment in his home country

In today’s Chamber judgment in the case of Zokhidov v. Russia (application

no. 67286/10), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been:

a violation of Article 3 (prohibition of torture and of inhuman or degrading

treatment) of the European Convention on Human Rights;

violations of Article 5 §§ 1, 2 and 4 (right to liberty and security); and,

a violation of Article 34 (right of individual petition).

The case concerned the extradition of an Uzbek national from Russia to Uzbekistan,

where he was wanted in connection with his presumed membership of the illegal

religious organisation Hizb ut-Tahrir.

The Court found that Mr Zokhidov had been at real risk of ill-treatment in Uzbekistan.

His removal there, in contravention of an interim measure indicated by the Court, had

moreover removed him from Convention protection, making it impossible for this

judgment to be effectively enforced.

Principal facts

The applicant, Rustam Zokhidov, is an Uzbek national who was born in 1972 and is

currently serving a term of imprisonment in Uzbekistan. He lived in Russia between 2005

and December 2011.

In May 2010, criminal proceedings were brought against Mr Zokhidov in Uzbekistan on

suspicion of having participated, between 2001 and 2005, in activities of Hizb ut-Tahrir,

a religious organisation banned in Uzbekistan. He was charged with public appeals to

overthrow the constitutional order in connection with his presumed membership of the

organisation and his name was placed on an international wanted list. In July 2010, he

was arrested in St. Petersburg and detained on 15 July with a view to his extradition to

Uzbekistan. His detention was again ordered by the prosecutor on 24 August 2010, and

it was subsequently extended until his release in April 2011.

In the meantime, a request from the Uzbek authorities for Mr Zokhidov’s extradition to

Uzbekistan, received by the Russian authorities on 16 August 2010, was approved by the

Russian deputy Prosecutor General in September 2010, the decision stating that Mr

Zokhidov was charged with offences which were prescribed by Russian criminal law.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

Informed of the extradition order in October 2010, Mr Zokhidov appealed, arguing that

he ran a real risk of being exposed to ill-treatment if extradited. On 19 November 2010,

the European Court of Human Rights granted Mr Zokhidov’s request for an interim

measure and indicated to the Russian Government that he should not be extradited to

Uzbekistan until further notice. The St Petersburg city court initially dismissed Mr

Zokhidov’s appeal against the extradition order, noting in particular that the Uzbek

authorities had given assurances to the effect that he would not be subjected to

treatment in breach of Article 3. The decision having been quashed by the Supreme

Court, the city court set aside the extradition order in April 2011, finding that the legal

classification of the charges against Mr Zokhidov under Russian law was incorrect and

that his criminal prosecution had become time-barred, and ordered his release.

In parallel, Mr Zokhidov brought asylum proceedings in October 2010, stating that he

was persecuted in Uzbekistan on account of his religious beliefs. His request for refugee

status was dismissed. The migration authorities referred in particular to the fact that he

had applied for asylum only more than two months after his arrest with a view to his

extradition and that he had breached the residence regulations by submitting false

information. His complaint against that decision was rejected by the district court in

November 2011.

On 21 December 2011, Mr Zokhidov was deported to Uzbekistan. According to his

submissions, a group of police officers and officials of the migration service burst into the

flat where he lived with his family on the pretext of an identity check. They subsequently

took him to the airport, where he was put on a plane to Uzbekistan, despite the fact that

he had informed the officers of the interim measure indicated by the European Court of

Human Rights and had shown them a copy of the Court’s letter as proof. According to

the Russian Government, there had not been any legal grounds for Mr Zokhidov’s stay in

Russia, given the refusal to grant him asylum. In Uzbekistan, he was convicted as

charged and sentenced to eight years’ imprisonment in April 2012.

Complaints, procedure and composition of the Court

Mr Zokhidov complained that his removal to Uzbekistan had been in violation of Article

3, in particular since, as a person accused of participating in a banned religious

organisation considered extremist by the Uzbek authorities, he ran a real risk of ill-

treatment. He further complained that he did not have any effective remedies in respect

of that complaint, in breach of Article 13 (right to an effective remedy). Also relying in

particular on Article 5 §§ 1, 2 and 4 (right to liberty and security), he complained that

his detention in Russia from July to September 2010 had been unlawful, that he had not

been informed promptly, in a language he understood, of the reasons for his arrest and

the charges against him, and that he did not have the possibility to effectively challenge

the detention orders. Finally, he complained that Russia failed to comply with its

obligations under Article 34 (right of individual petition) by disregarding the interim

measure indicated by the European Court of Human Rights to the effect that he should

not be extradited to Uzbekistan.

The application was lodged with the European Court of Human Rights on 19 November

2010.

Judgment was given by a Chamber of seven judges, composed as follows:

Isabelle Berro-Lefèvre (Monaco), President,

Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”),

Julia Laffranque (Estonia),

Linos-Alexandre Sicilianos (Greece),

Erik Møse (Norway),

Ksenija Turković (Croatia),

Dmitry Dedov (Russia),

and also André Wampach, Deputy Section Registrar.

Decision of the Court

Article 3

The Court found that the Russian authorities had not carried out a thorough examination

of Mr Zokhidov’s allegations concerning the risk of his ill-treatment in Uzbekistan. In

particular, the Russian courts’ decision to set aside the order for his extradition was

mainly based on technical reasons, namely the fact that his prosecution had become

time-barred. The migration authorities, in their decisions to refuse his asylum request,

had mainly referred to the fact that he had waited too long before applying for refugee

status and had breached the residence regulations, but they had not specifically

addressed his detailed submissions concerning the risk of being subjected to ill-

treatment in case of his removal.

In previous judgments concerning potential removals to Uzbekistan, including in recent

cases, the Court had found, with reference to reliable international sources, that the

practice of torture against those in police custody was systematically used there. At the

same time, the Court emphasised that it was insufficient to simply refer to a general

problem concerning human rights observance in a particular country to bar extradition.

With regard to Mr Zokhidov’s personal situation it noted that, having been wanted on

charges of a number of offences in connection with his alleged membership of Hizb ut-

Tahrir, he belonged to a group in respect of which reliable sources confirmed a

continuing pattern of ill-treatment and torture by the authorities. The criminal

proceedings against him had been instituted in the aftermath of terrorist attacks of

2009, which had been followed by a wave of arbitrary arrests and ill-treatment of people

suspected of their involvement with Hizb ut-Tahrir. The Court thus considered that there

were substantial grounds to believe that Mr Zokhidov had faced a real risk of treatment

in breach of Article 3. The assurances given by the Uzbek authorities that he would not

be ill-treated had been couched in general terms and there was no evidence that they

were supported by any monitoring mechanism. Mr Zokhidov’s removal to Uzbekistan had

therefore violated Article 3.

The Court did not consider it necessary to examine Mr Zokhidov’s complaint separately

under Article 13, as it essentially contained the same arguments as those examined

under Article 3.

Article 5

The Court found that there had been a violation of Article 5 § 1 on account of Mr

Zokhidov’s detention in Russia from 14 July to 15 September 2010. Neither the

prosecutor in his decision to order the detention nor the Russian Government had

referred to any provision under Russian law that would have authorised his placement in

custody between 14 July and 16 August 2010, when the prosecutor had received the

extradition request. After that date, Mr Zokhidov’s detention had been covered by the

relevant provision of the Code of Criminal Procedure. However, that provision lacked

clear rules on the procedures to be followed when ordering the detention of a person

whose extradition was sought and it did not set any time-limits for detention pending

extradition.

Furthermore, there had been a violation of Article 5 § 2, as Mr Zokhidov had not been

promptly provided with sufficient information concerning his arrest and the charges

brought against him. While his arrest and interview records contained a reference to the

fact that he was wanted by the Uzbek authorities, those documents did not mention the

reasons why those authorities were searching for him.

Finally, there had been a violation of Article 5 § 4 on account of Mr Zokhidov’s inability

to obtain a review of the detention orders of 15 July and 24 August 2010. The Russian

Government had referred to legal provisions which provided individuals detained with a

view to extradition with the possibility of bringing a judicial complaint. However, the

Court was not convinced that those legal provisions - in particular Article 125 of the

Code of Criminal Procedure, as interpreted by the Russian Supreme Court - explicitly

gave the court the competence to release a detainee in Mr Zokhidov’s situation.

Moreover, the Government acknowledged that Mr Zokhidov had been provided with the

detention orders of 15 July and 24 August 2010 after the domestic courts had already

authorised his ensuing detention, which made appeals against them devoid of purpose.

Article 34 (right of individual petition)

While the Russian Government acknowledged that Mr Zokhidov’s removal to Uzbekistan

had been in breach of the interim measure indicated by the Court and that this was

contrary to Article 34 of the Convention, they asserted that the migration authorities

which carried out the deportation order had not been aware of the interim measure and

that it had not been their intention to act in non-compliance with Article 34. The Court

was not convinced by this argument. In particular, according to Mr Zokhidov’s

submissions, uncontested by the Government, he had informed the migration officials of

the Court’s interim measure. He had moreover asserted, and those submissions were

also uncontested by the Government, that he had been prevented from contacting his

lawyer after having been taken away from his flat.

The Court pointed out that Mr Zokhidov’s removal to Uzbekistan had removed him from

Convention protection and had frustrated the purpose of the interim measure, which was

to maintain the status quo pending the Court’s examination of the application and to

allow its final judgment to be effectively enforced. There had accordingly been a violation

of Article 34.

Just satisfaction (Article 41)

The Court held that Russia was to pay Mr Zokhidov 30,000 euros (EUR) in respect of

non-pecuniary damage and EUR 11,000 in respect of costs and expenses.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of

Europe Member States in 1959 to deal with alleged violations of the 1950 European

Convention on Human Rights.