SECOND SECTION

DECISION

Application no. 46173/18 M.A. against Estonia

The European Court of Human Rights (Second Section), sitting on 26 November 2019 as a Committee composed of:

Ivana Jelić, President, Julia Laffranque, Arnfinn Bårdsen, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 2 October 2018,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicant, M.A., is an Uzbekistan national. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms L. Laanpere, a lawyer practising in Tallinn.

2 . The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3 . On 20 April 2018 notice of the applicant ’ s complaints under Article 3 and Article 13, in so far as the latter considered the time and means of challenging the order to leave, was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4 . On 16 November 2016 the applicant arrived from Russia to Estonia by illegally crossing the temporary control line between the two countries. On the same day, he made an oral application to be granted international protection.

5 . After conducting a background check of the applicant in different databases, interviewing him, inspecting his phone and his Facebook account, analysing the situation in Uzbekistan and examining a threat assessment report issued by the Estonian Internal Security Service ( Kaitsepolitsei ) in respect of the applicant, the Police and Border Guard Board ( Politsei- ja Piirivalveamet , hereinafter “PBGB”) decided on 5 May 2017 not to grant him international protection. The PBGB reasoned that the applicant did not meet the criteria to be considered a refugee. He was, in principle, considered to meet the substantive criteria to be granted international protection because his assumed links with Hizb ut-Tahrir movement (which was banned in Uzbekistan) could lead to him being tortured and imprisoned in life-threatening conditions in Uzbekistan. However, the PBGB did not grant the applicant subsidiary protection as he was believed to pose a threat to public order and national security on the grounds of his supposed connection to the Hizb ut-Tahrir movement and his interest in the war in Syria.

6 . The PBGB ’ s decision was reviewed at all three levels of jurisdiction (Tallinn Administrative Court, Tallinn Court of Appeal and the Supreme Court).

7 . In its judgment of 1 October 2018 the Supreme Court dismissed the applicant ’ s appeal on points of law. The Supreme Court considered that the applicant ’ s connection to the Hizb ut-Tahrir movement, or at least his support of the views promoted by Hizb ut-Tahrir, had been proven. Against that background, he did not qualify as a refugee. His potential punishment in Uzbekistan for his association with the Hizb ut-Tahrir movement could not be construed as persecution on political or religious grounds but rather as a sanction for an offence under domestic law. At the same time the Supreme Court found that the applicant, in principle, met the criteria to be granted the subsidiary protection as upon return to Uzbekistan he was likely to be subjected to ill-treatment given his supposed links to religious extremism. However, relying, inter alia , on the materials provided by the Estonian Internal Security Service, the Supreme Court reached a conclusion that the applicant posed a threat to public order and national security. Under such circumstances, excluding the applicant from being eligible for subsidiary protection had been justified.

8 . Following the Supreme Court ’ s judgment, on 1 October 2018 the PBGB issued the applicant with an order to leave ( lahkumisettekirjutus ). It stated that the applicant was to be expelled to Russia and that a five-year entry ban to Estonia had been imposed. The order to leave was to be enforced immediately. It also mentioned that an appeal could be lodged with the Tartu Administrative Court.

9 . On the same day the applicant was taken to Rakvere Police Station where he destroyed his passport and submitted a new application to be granted international protection.

10 . On 2 October 2018 the applicant lodged a request under Rule 39 of the Rules of the Court and on the same day the Court decided to apply an interim measure prohibiting the applicant ’ s deportation to Russia for the duration of the proceedings before the Court.

11 . On 4 October 2018 the applicant withdrew the new application for international protection and on 15 October 2018 the PBGB terminated the respective proceedings.

12 . On 11 October 2018 the applicant lodged an appeal to have the order to leave, issued on 1 October 2018, annulled.

13 . On 16 October 2018 the PBGB annulled the order to leave issued on 1 October 2018. Subsequently, the applicant modified the claim submitted to the administrative court and asked the order to leave to be declared unlawful.

14 . On 30 October 2018 the PBGB issued a new order to leave in respect of the applicant. It obliged the applicant to leave Estonia and stated that the order to leave was immediately enforceable. It did not specify the country to which the applicant would be deported. The enforcement of the order was suspended in view of the interim measure imposed by the Court. The applicant subsequently modified his claim submitted to the administrative court and asked the order of 30 October 2018 to be annulled.

15 . On an unknown date the applicant left Estonia. On 23 January 2019 the applicant ’ s representative informed the Tallinn Administrative Court of this fact.

16 . On 5 February 2019 the Government asked the interim measure applied under Rule 39 to be lifted given that the applicant had left Estonia. After receiving comments from the applicant ’ s representative (who informed that the applicant was in Germany), the Court decided to lift the interim measure on 19 February 2019.

17 . On 20 March 2019 the Tallinn Administrative Court annulled the order to leave issued on 30 October 2018. The court found that the order had been unlawful as it had not specified the country to which the applicant was to be deported. It considered that the naming of a country was important so that the person concerned could effectively use the remedies against expulsion. Although it had not been stated in the order, the court noted that given the PBGB ’ s statements and the regulation concerning the enforcement of the orders to leave, the applicant could only have been expelled to Russia. In addition, procedural rules had been breached when issuing the order, namely the applicant had not been heard, he had not been able to present counter-arguments to his deportation to Russia nor could he submit preferences as to any third country to be deported to. The court also considered that the PBGB had not properly assessed the possibility of expulsion. The court noted that although it had not been contested that the applicant could not be deported directly to Uzbekistan, it was not satisfied that the PBGB had sufficiently assessed the applicant ’ s safety in Russia. The court did not agree with the PBGB that it could be concluded from the fact that the applicant was not wanted by Interpol, that Uzbekistan had no interest in him. The court also disagreed with the claim that the applicant could legalise his stay in Russia. Neither was the court convinced that Russia would not expel the applicant if Uzbekistan asked for it. In addition, the court asserted that the prohibition to enter applied by the same order had not been sufficiently reasoned. Finally, the court noted that, as the applicant was not in Estonia at the time of rendering the decision, there was no need to issue an interim measure. Should the applicant be returned to Estonia before the judgment became final, and the PBGB start proceedings to deport him, he could apply for such a measure.

18 . The judgment entered into force on 23 April 2019 when the appeal deadline passed without either of the parties submitting an appeal.

19 . On 22 May 2019 the Government informed the Court that Germany intended to return the applicant to Estonia on 26 June 2019. This never happened as the applicant left Germany prior to that date. On 28 August 2019 the applicant ’ s representative notified the Court that the applicant was currently living in France.

ComplaintS

20 . The applicant complained under Article 3 of the Convention that, if deported to Russia, the latter would expel him to Uzbekistan where he would face ill-treatment. He also complained, relying on Article 13, that he did not have at his disposal an effective remedy with respect to his complaint under Article 3, given that following the Supreme Court ’ s judgment of 1 October 2018 the authorities immediately proceeded with his expulsion without giving him a reasonable opportunity to challenge the order to leave by which his expulsion to Russia was ordered.

THE LAW

21 . The applicant complained about the risk of indirect refoulement from Russia to Uzbekistan and the fact that he could not effectively challenge the order to leave. He asserted that it was justified for the Court to continue examining his complaints. He could be returned to Estonia where he would still face the risk of being expelled to Russia given that the PBGB could at any time issue another immediately enforceable order to leave.

22 . The Government asked the Court to find that the applicant had lost his victim status given that the order to leave had been annulled by the Tallinn Administrative Court on 20 March 2019. It also drew attention to the fact that the applicant was no longer in Estonia. Should the PBGB decide to issue a new order to leave, it should be done in accordance with the guidance drawn from the referred Tallinn Administrative Court judgment. In that event, the applicant would again have the right to challenge the order in court and ask for an interim measure to be applied.

23 . At the outset, the Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Ãœner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII ). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to remove the person in question to that country (see, among other authorities, Saadi v. Italy [GC] , no. 37201/06, §§ 124-125, ECHR 2008, and J.K. and Others v. Sweden [GC] , no. 59166/12 , § 79, 23 August 2016 ).

24 . The Court also reiterates the principle according to which indirect refoulement of an alien leaves the responsibility of the Contracting State intact and that State is required, in accordance with the well-established case-law, to ensure that the person in question would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatriation. It is a matter for the State carrying out the return to ensure that the intermediary country offers sufficient guarantees to prevent the person concerned being removed to his or her country of origin without an assessment of the risks faced (see, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § § 146-147, ECHR 2012).

25 . In cases where expulsion has not yet taken place, the material date for the assessment of risks associated with such an expulsion is that of the proceedings before the Court (see Chahal v. the United Kingdom , 15 November 1996, § 86, Reports of Judgments and Decisions 1996 ‑ V ).

26 . Turning to the facts of the present case, the Court observes that on 20 March 2019 the Tallinn Administrative Court annulled the order to leave issued on 30 October 2018. The Tallinn Administrative Court considered that although the PBGB had not indicated the State to which the applicant would be expelled, in the context of the case at hand the applicant could only be removed to Russia. It then stated that the PBGB had not properly assessed whether the expulsion of the applicant to Russia carried the risk of the latter being further expelled to Uzbekistan where he could be subjected to ill-treatment. It disagreed with the PBGB ’ s presumption that the Uzbekistan authorities had probably lost interest in the applicant and that the applicant could legalise his stay in Russia. In this connection, the Court notes that, as the matters currently stand, there is no valid expulsion decision against the applicant which could be executed.

27 . Despite the order to leave having been annulled, the fact remains that the applicant was not granted asylum or subsidiary protection in Estonia. He has since then left Estonia, going first to Germany and subsequently to France. It is not excluded that the PGBG would issue another enforceable order to leave against the applicant and aim to enforce it if and when the applicant returns or is returned to Estonia. However, in such a situation the applicant could, as he did in the case at hand, challenge the possible new order to leave in the domestic courts. The Court stresses that in a situation where, under the domestic law, orders to leave can be appealed against before the domestic courts, the addressees of such decisions who intend to make use of this right must be accorded a reasonable time and opportunity to do so.

28 . Given that the applicant is no longer in Estonia and that there is at present no enforceable order to leave against him, he is currently not at risk of being subjected to the treatment proscribed by Article 3 of the Convention.

29 . In view of the foregoing, the Court considers that it is no longer justified to continue the examination of the application. Furthermore, it is satisfied that respect for human rights as defined in the Convention and its Protocols does not require, at present, that it continue the examination of the application (Article 37 § 1 in fine ).

30 . Furthermore, the Court refers to Article 37 § 2 of the Convention, which allows for the restoration of an application to its list of cases if it considers that the circumstances justify taking such a course of action.

31 . In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 19 December 2019 .

Hasan Bakırcı Ivana Jelić Deputy Registrar President