ECtHR - K.I. v Russia, Application no. 58182/14, 7 November 2017

Facts:

The applicant was born in Tajikistan in 1980. He arrived in Russia in 2003. On 3 May 2011 the applicant was charged in absentia in Tajikistan with participating in an extremist religious movement, the Islamic Movement of Uzbekistan, and an international search and arrest warrant was issued in his name. On 6 May 2011 the Tajik authorities ordered his pre-trial detention. On 3 November 2013 the applicant was arrested in Moscow and detained. On 13 October 2014 the applicant was released from detention but immediately was rearrested for violating migration regulations. On 14 October his administrative removal was ordered. The City Court on 24 October 2014 rejected his appeal. In the meanwhile, the applicant’s extradition to Tajikistan was refused by the Russian authorities. On 18 December 2013 the applicant lodged a request for refugee status, based on persecution in Tajikistan and a real risk of ill-treatment, which was refused on 12 November 2015 by a final decision of the City Court.

Before the Court the applicant complains that he will suffer a violation of his Article 3 rights if he is extradited in Tajikistan, that there had been a violation of his right to an effective remedy in conjunction with Article 3. Furthermore, the applicant complained that his detention was unlawful and in violation of Article 5(1) and finally that Article 5(4) was violated since he wasn’t provided with a speedy review of his detention.

Decision & reasoning:

With regard to the applicant’s complaint under Article 3 ECHR, the Court began its reasoning by pointing out that the Russian authorities had at their disposal a sufficiently substantiated complaint pointing to a real risk of ill-treatment and that the applicant presented the Russian authorities with substantial grounds for believing that he faced a real risk of ill-treatment in Tajikistan. The Court referred firstly to reports of reputable international governmental and non-governmental agencies and organisations concerning the dire situation of the criminal justice system in Tajikistan and secondly, to previous case-law of the Court concerning removals from the Russian Federation to Tajikistan of individuals accused by the Tajik authorities on the same grounds as the applicant. The Court has systematically found that the removal of applicants to Tajikistan in the face of their prosecution for extremism would run contrary to Article 3 of the Convention by exposing them to a risk of ill-treatment at the hands of the law-enforcement agencies and that these individuals constituted a vulnerable group who would face a real risk of treatment contrary to Article 3 of the Convention if removed.

Furthermore, the Court considered that the domestic authorities failed to assess the applicant’s claims adequately and did not carry out a rigorous scrutiny of the applicant’s claim that he faced a risk of ill-treatment in his home country, since rejections of the applicant’s claims lacked reference to evidentiary material, despite the fact that the applicant had sufficiently substantiated the claim that he would risk ill-treatment in Tajikistan. That failure opened the way for the applicant’s removal to Tajikistan.

Finally, the Court ruled that according to the relevant available material there hasn’t been any improvement in either the criminal justice system of Tajikistan in general or the specific treatment of those prosecuted for religiously and politically motivated crimes. As a result, If the applicant were to be expelled to Tajikistan (on the basis of administrative removal) there would be a violation of Article 3 of the Convention.

With regard to the applicant’s complaint under Article 5(1) ECHR, the Court observed that since according to the Court’s settled case-law the exception in sub-paragraph (f) of Article 5(1) of the Convention requires only that “action is being taken with a view to deportation or extradition”, without any further justification and that deprivation of liberty will be justified as long as deportation or extradition proceedings are in progress. On the basis that the applicant’s detention lasted less than eight months and during this period the authorities were taking genuine steps to decide on his extradition and furthermore, the domestic authorities diligently pursued the relevant proceedings, there were no periods of inaction or unjustified delays and the applicant was released. As a result, there had been no violation of Article 5(1) of the Convention as regards the applicant’s detention pending extradition between 12 December 2013 and 3 August 2014.

Finally, with regard to the applicant’s complaint under Article 5(4) ECHR the Court noted that Article 5(4) guarantees to arrested or detained persons a right to initiate proceedings to challenge the lawfulness of their detention and in addition a right to a speedy judicial decision concerning the lawfulness of such detention, ordering the termination of the detention if it is proved to be unlawful. The Court rejected the Government’s claim that the State cannot be held responsible for the thirty-five and the seventy days delay of the competent agency processing the translation of the relevant material for the applicant (assigned by the State). As a result, the Court considered that, in the present case, there had been a violation of Article 5(4) of the Convention.

Outcome:

The Court found that if the applicant were expelled to Tajikistan there would be a violation of Article 3.

The Court did not consider it necessary to examine separately the complaint under Article 13.

Νo violation of Article 5(1).

Violation of Article 5(4).

Subsequent proceedings:

The Court decided to continue to indicate to the Russian government an interim measure, under Rule 39 of the Rules of Court, not to remove the applicant to Tajikistan until such time as the present judgment becomes final or until further order.

Observations/comments:

This case summary was written by Asterios Kanavos, LLM student at Vrije Universiteit Amsterdam.

Other sources:

International NGOs reports:

Tajikistan 2016/2017

Tajikistan: A year of secrecy, growing fears and deepening injustice by Amnesty International

Nations in Transit 2017: The False Promise of Populism by Freedom House

World Report 2017 by Human Rights Watch