issued by the Registrar of the Court

ECHR 132 (2013)

25.04.2013

Russia responsible for secret unlawful transfer to Tajikistan of a

man protected by temporary asylum and interim measures

In today’s Chamber judgment in the case of Savriddin Dzhurayev v. Russia

(application no. 71386/10),¹the European Court of Human Rights held, unanimously,

that there had been:

A violation of Article 3 (prohibition of inhuman or degrading treatment) of the

European Convention on Human Rights, on account of the authorities’ failure to protect

Mr Dzhurayev against the real and imminent risk of torture and ill-treatment by

preventing his forcible transfer from Moscow to Tajikistan, the persistent refusals to

conduct an effective investigation into the incident, and the involvement of State officials

in that operation;

a violation of Article 34 (right of individual petition) on account of Russia’s failure

to comply with an interim measure issued by the European Court of Human Rights that

no extradition should take place pending the Court’s proceedings; and,

a violation of Article 5 § 4 (right to have lawfulness of detention decided

speedily by a court) on account of delays in examining Mr Dzhurayev’s appeals against

two orders for his detention.

The case concerned the abduction and secret transfer of a man, whose extradition had

been sought by the Tajik authorities and who had been granted temporary asylum in

Russia, to his home country, Tajikistan, where he was subsequently prosecuted and

sentenced to imprisonment for offences against national security.

The Court held in particular that Mr Dzhurayev faced a real risk of ill-treatment in

Tajikistan and that he could not have been forcibly transferred there without the

involvement of Russian State officials, whose actions had been tainted by manifest

arbitrariness and abuse of power. The Court concluded that, like the so-called

“extraordinary renditions”, the operation involving State agents in Mr Dzhurayev’s case

had been conducted outside the normal legal system and, by its deliberate circumvention

of due process, was anathema to the rule of law and the values protected by the

Convention.

Under Article 46 (binding force and execution of judgments) of the Convention,

the Court considered the pattern of similar repeated incidents in the recent past which

suggests that certain State authorities have developed a practice in breach of their

obligations under the Russian law and the Convention. In view of the situation and the

nature of the violations found, the Court indicated to the Russian Government remedial

measures in respect of Mr Dzhurayev and general measures to prevent new similar

violations, thus assisting Russia and the Committee of Ministers of the Council of Europe

with a view to implementation of the judgment.

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

Principal facts

The applicant, Savriddin Dzhurayev, born in 1985, is a national of Tajikstan, where he is

currently serving a prison sentence.

Mr Dzhurayev arrived in Russia in June 2006, having fled Tajikistan, as he feared

prosecution on the grounds of his religious activities after a Quran teacher at his mosque

had been arrested and had died in detention. In November 2006 criminal proceedings

were brought against Mr Dzhurayev in Tajikistan on charges of his alleged involvement

in “the Islamic Movement of Uzbekistan” (IMU) and an armed attack on three members

of the regional parliament.

In November 2009 Mr Dzhurayev was arrested in Moscow by the Russian police pursuant

to an international search warrant issued by the Tajik authorities. He was placed in

detention pending extradition. The courts subsequently extended his detention on a

number of occasions, and his appeals against the detention orders were rejected. In

June 2010, the Russian Deputy Prosecutor General issued an order for his extradition. Mr

Dzhurayev’s appeals against that order – stating that the Tajik authorities would subject

him to torture to make him confess to a crime he had not committed - were rejected by

the Moscow City Court and the Russian Supreme Court in 2010, referring to written

guarantees by the Tajik prosecutor to the effect that Mr Dzhurayev would not be

subjected to ill-treatment. However, the extradition order was not enforced, pursuant to

an interim measure indicated by the European Court of Human Rights (under Rule 39 of

its Rules of Court) on 7 December 2010 that no extradition should take place until

further notice. In May 2011 Mr Dzhurayev was released under a personal guarantee from

his lawyer.

In parallel, in December 2009, Mr Dzhurayev applied for refugee status in Russia,

submitting that he was being persecuted in Tajikistan on the grounds of his religious

beliefs and that he would be subjected to torture if extradited there. The Russian Federal

Migration Service (FMS) rejected his application in a decision eventually upheld by the

courts in December 2010. In September 2011, the FMS granted Mr Dzhurayev

temporary asylum in Russia.

According to Mr Dzhurayev, on 31 October 2011, he was abducted in Moscow by a group

of men, who detained him in a mini-van for one or two days and tortured him, then took

him to the airport, from where he was flown to Khujand (Tajikistan) without going

through the normal border formalities or security checks. Upon arrival, he was handed

over to the Tajik authorities. According to submissions from his father, Mr Dzhurayev

was then detained at a police station, where he was severely ill-treated and pressured to

confess to crimes he had not committed. In April 2012, a regional court in Tajikistan

found Mr Dzhurayev guilty of a number of offences and sentenced him to 26 years’

imprisonment.

Once informed of the abduction, Mr Dzhurayev’s lawyer immediately contacted a number

of Russian officials, including the head of the Moscow police and the Prosecutor General,

asking them to protect Mr Dzhurayev from the risk of a forcible transfer to Tajikistan. An

official request to that effect was also addressed by the Russian Commissioner for

Human Rights to the head of the Moscow police.

The district investigators in charge conducted a pre-investigation inquiry into the events

but refused to open a criminal investigation on at least four occasions, noting in

particular that Mr Dzhurayev might have staged his abduction in order to escape criminal

liability for offences committed in Tajikistan. Those decisions were issued time and again

in identical terms after having been quashed by the senior authority. According to the

Russian Government’s latest submission to the Court, the inquiry was still pending and it

had so far found – the Government referred to the official information received from the

Prosecutor General of Tajikistan to this effect – that Mr Dzhurayev had illegally crossed

the Russian State border, had “voluntarily surrendered” to the Tajik authorities on 3

November 2011 and had been placed in detention.

Complaints, procedure and composition of the Court

Having initially complained that his extradition would put him at risk of ill-treatment in

Tajikistan, Mr Dzhurayev later added the complaint that his abduction and illegal transfer

to Tajikistan could only have been possible with either passive or active involvement of

the Russian authorities and that the authorities had failed to conduct an effective

investigation into the incident. He relied on Article 3 (prohibition of inhuman or

degrading treatment) and Article 13 (right to an effective remedy). He also complained

of a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a

court) on account of delays in the examination of his appeals against several of the

detention orders. Lastly, Mr Dzhurayev alleged that the authorities had disregarded the

interim measure issued by the Court, in breach of Article 34 (right of individual petition).

The application was lodged with the European Court of Human Rights on 6 December

2010.

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

Isabelle Berro-Lefèvre (Monaco), President,

Khanlar Hajiyev (Azerbaijan),

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

Julia Laffranque (Estonia),

Erik Møse (Norway),

Ksenija Turković (Croatia),

Dmitry Dedov (Russia),

and also Søren Nielsen, Section Registrar.

Decision of the Court

As regards the facts of the case, the Court found it established beyond reasonable doubt

that Mr Dzhurayev had been kidnapped by unidentified persons in Moscow on 31 October

2011, had been detained by his kidnappers in Moscow for one to two days, then forcibly

taken by them to an airport and put on board a flight to Tajikistan, where he had

immediately been placed in detention by the Tajik authorities.

Mr Dzhurayev had provided a detailed, specific and consistent account of the events that

had taken place from 31 October 2011 onwards, not only in his submissions to the

Court, but also in his statement in a public court hearing in Tajikistan. By contrast, the

Russian Government had only given evasive answers to the Court’s questions,

essentially limited to denials of the authorities’ knowledge about, and their responsibility

for, Mr Dzhurayev’s fate. It was undisputed between the parties that on 3 November

2011 at the latest he had been placed in detention in Tajikistan – having previously been

granted temporary asylum in Russia following his insistent attempts to avoid returning to

his home country. While the Russian Government had referred to the version of the

events presented by the Tajik authorities, they had failed to support it with any

evidence. In particular, they had not explained how and when Mr Dzhurayev could have

managed on his own to make the trip from Moscow to Tajikistan across various State

borders without his passport or any official record of crossing the Russian border.

Article 3

As regards Mr Dzhurayev’s allegation that he faced a risk of ill-treatment on return to

Tajikistan, the Court found that the Russian authorities had not carried out an

independent and rigorous scrutiny of that claim. While admitting to the file reports about

the human rights situation in Tajikistan, the Russian courts had not made any use of

them and had summarily dismissed all arguments related to those reports. Moreover,

the courts had unconditionally relied on the assurances by the prosecutor of Tajikistan to

the effect that Mr Dzhurayev would not be ill-treated, without examining whether those

assurances provided any guarantees in practice.

The Court noted the consistent reports by the UN and NGOs for the past few years about

the widespread, systematic use of torture by law-enforcement authorities of Tajikistan

and the impunity of State officials. Referring to several recent cases concerning

extradition to Tajikistan, the Court did not find any tangible element that would alleviate

those concerns. There was nothing in the Russian Government’s submissions to refute

the recent reports or otherwise to attest of any perceptible improvement of the situation

in Tajikistan.

While the mere reference to a general problem concerning observance of human rights

in a particular country could not alone serve as a basis for refusing extradition, the Court

noted that one of the main charges against Mr Dzhurayev had directly related to his

involvement in the IMU, which the Tajik authorities regarded as a terrorist organisation.

Those circumstances, in the context of harassment of non-traditional religious groups by

the Tajik authorities, had heightened the risk of his being subjected to ill-treatment in

detention with a view to extracting confessions relating to his religious activities. Mr

Dzhurayev’s forcible return to Tajikistan and the following events had confirmed that his

fears had been well founded. The Court therefore concluded that his forcible return to

Tajikistan had exposed him to a real risk of treatment in breach of Article 3.

Immediately after having been informed of Mr Dzhurayev’s abduction, his representative

had asked the relevant Russian State authorities to protect him from the ensuing risk of

his forcible transfer to Tajikistan. However, the Russian Government had not informed

the Court of any timely preventive measure taken by the police or any other authority to

avert that risk, which led the Court to conclude that no such measure had been taken by

any authority. That failure amounted to a violation of the State’s positive obligation to

protect Mr Dzhurayev from treatment contrary to Article 3.

The investigation of Mr Dzhurayev’s abduction had been plagued by numerous flaws,

which were manifestly inconsistent with Russia’s obligations under Article 3. The news of

the abduction should have triggered the authorities’ utmost attention in view of his

allegation that State officials had been involved in the operation and the related

questions raised by the Court before the Government. However, the investigators had

strictly limited their action to “pre-investigation inquiries”, while persistently refusing to

open criminal proceedings, which would have constituted the best, if not the only tool to

meet the Convention requirements of effective investigation. Moreover, the process of

repeated quashing and renewal of identical decisions by the investigation authority had

resulted in the proceedings being stalled in a manner that was incompatible with those

requirements. Finally, the investigators had failed to take some key investigative steps

such as finding out which airlines had operated flights from Moscow to Khujand between

1 and 3 November 2011 and questioning the security and administrative staff of the

airport where Mr Dzhurayev had reportedly boarded an aircraft.

As regards the State officials’ alleged involvement in Mr Dzhurayev’s abduction and

transfer, the Court underlined that its proceedings on such controversial issues depended

all the more on States’ cooperation, in line with their obligation under the Convention, to

furnish all necessary facilities for the establishment of the facts. The Court found that the

only genuine way for Russia to honour its undertaking in the present case would have

been to ensure that an exhaustive investigation of the incident was carried out and to

inform the Court about its results. However, the Russian authorities had manifestly failed

to do so, thus prompting the Court to examine the highly controversial issues at stake in

the place of the national authorities. Such a failure by the State to provide crucial

information and evidence compelled the Court to draw strong inferences in favour of Mr

Dzhurayev’s position. Furthermore, the Government had not presented any plausible

version of events or explained how Mr Dzhurayev could have been forcibly taken directly

to the airfield and put onboard a plane for a foreign country without having to account to

any State officials. The Court therefore concluded that Russia was to be held responsible

for his forcible transfer to Tajikistan on account of State officials’ involvement in that

operation.

The Court held that there had been a violation of Article 3 on account of Russia’s failure

to protect Mr Dzhurayev against the real and imminent risk of torture and ill treatment

by preventing his forcible transfer from Moscow to Tajikistan, the lack of an effective

investigation into the incident, and the involvement of State officials in that operation.

Article 34

In spite of the interim measure indicated by the Court in December 2010 that he should

not be extradited until further notice – and the Russian Government’s submission that

the authorities had taken the relevant steps to comply with that measure - Mr Dzhurayev

had been forcibly transferred to Tajikistan in November 2011 by way of a special

operation in which State officials were involved. The Court underlined the vital role of

interim measures in the Convention system, which not only underpins their binding legal

effect, but also commands the utmost importance to be attached to the question of

States’ compliance with such measures. Any laxity on this question would unacceptably

weaken the protection of the Convention core rights and, more generally, undermine the

authority and effectiveness of the Convention as a constitutional instrument of European

public order. These principles made it inconceivable to allow a State to circumvent an

interim measure in an arbitrary and manifestly unlawful manner. There had accordingly

been a violation of Article 34 on account of Russia having disregarded the interim

measure indicated by the Court.

Article 5

Furthermore, the Court found a violation of Article 5 § 4 on account of the long delays in

examining Mr Dzhurayev’s appeals against two orders for his detention in 2010. The

Russian courts had dismissed those appeals 54 days and 29 days, respectively, after

they had been lodged, and the Government had not given any explanation for the

prolonged delays.

Article 41 (just satisfaction)

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

non-pecuniary damage and EUR 5,920 in respect of costs and expenses.

Article 46 (binding force and execution of judgments)

The Court considered that, in addition to the payment of just satisfaction, the findings of

the judgment required other measures to be taken. The fact that Mr Dzhurayev

remained outside Russia’s jurisdiction did not exempt the State from its legal obligation

to take all measures within its competence in order to put an end to the violation found

and make reparation for its consequences. It was not impossible for Russia to take

tangible remedial measures to protect Mr Dzhurayev from the existing risks to his life

and health in Tajikistan. The need for such measures was all the greater given that he

had been granted temporary asylum in Russia. It was further open to Russia to carry out

an effective investigation into the abduction in order to remedy the procedural violation

of Article 3. The Committee of Ministers of the Council of Europe was better placed to

supervise, on the basis of the information provided by Russia and with due regard to Mr

Dzhurayev’s evolving situation, the adoption of such measures that were feasible,

timely, adequate and sufficient to ensure the maximum possible reparation for the

violations found by the Court.

Furthermore, the findings of the judgment supported the view that the repeated

abductions of individuals and their ensuing transfer to other countries by deliberate

circumvention of due process – notably in breach of the interim measures indicated by

the Court – had amounted to a flagrant disregard for the rule of law and suggest that

certain State authorities have developed a practice in breach of their obligations under

the Russian law and the Convention. Such a situation has the most serious implications

for the Russian legal order, the effectiveness of the Convention system and the authority

of the Court.

The recent significant case-law developments by the Russian Supreme Court leading to a

better protection in extradition cases had to be meticulously followed by all Russian

courts to avoid such failings of domestic remedies as those criticised in the present

judgment. The present judgment also required the resolution of the recurrent problem of

blatant circumvention of the domestic legal mechanisms in extradition matters.

Furthermore, applicants in respect of whom the Court had indicated interim measures

had to be granted effective protection by the State not only in law, but also in practice.

Given that the general protection provided for by the ordinary legal framework had

regularly failed in cases such as Mr Dzhurayev’s, an appropriate mechanism tasked with

both preventative and protective functions, had to be put in place to ensure that such

applicants benefitted from immediate and effective protection against unlawful

kidnapping and irregular removal from the national territory and the jurisdiction of the

Russian courts. Lastly, the State was to avail itself of appropriate procedures and

institutional arrangements to ensure effective investigation into every case of breach of

interim measures. Close scrutiny of such investigations at an appropriate official level

was also called for in order to ensure that they were conducted with the necessary

diligence and to the required standard of quality.

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.