THIRD SECTION

CASE OF N.K. v. RUSSIA

(Application no. 45761/18)

JUDGMENT

STRASBOURG

29 March 2022

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

In the case of N.K. v. Russia,

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

María Elósegui, President, Andreas Zünd, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 45761/18) 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”) on 28 September 2018 by a Tajikistani national, N.K., born in 1979 (“the applicant”) who was represented by Ms Olga Pavlovna Tseytlina, a lawyer practising in St Petersburg;

the decision to give notice of the complaints concerning the conditions of the applicant’s detention, his alleged removal to Tajikistan, delayed review of his appeal complaints and the alleged interference with his right to individual application to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the decision to give priority (Rule 41 of the Rules of Court) to the application and the decision to indicate interim measure to the respondent Government under Rule 39 of the Rules of Court which was subsequently lifted;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 8 March 2022,

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

SUBJECT-MATTER OF THE CASE

1. The case concerns removal of the applicant to Tajikistan, in breach of an interim measure issued by the Court, and the conditions and lawfulness of the applicant’s detention pending removal. Articles 3, 5 and 34 of the Convention are, principally, invoked.

2 . The present case is brought by a national of Tajikistan (see Appendix for factual details). The applicant was charged in absentia with a crime of membership of an extremist organisation by the Tajik authorities and then his administrative removal was ordered by the Russian authorities. On 28 September 2018 an interim measure was indicated by the Court preventing his administrative removal to Tajikistan. The applicant was detained in Russia in pre-trial detention facilities and in a temporary detention centre for foreigners and alleged that the conditions of such detention had been inhuman. In September 2020 the applicant was allegedly removed to Tajikistan, despite the application of the interim measure. According to this subsequent information, the applicant was ill-treated upon arrival to Tajikistan and later sentenced to a lengthy prison sentence. The applicant and his lawyer submitted written statements providing details of the applicant’s transfer to Tajikistan. No investigation was carried out into the applicant’s alleged abduction.

THE COURT’S ASSESSMENT

3. The applicant initially complained under Article 3 of the Convention that that the national authorities had failed to consider his claims that he risked ill‑treatment in the event of his removal to Tajikistan, and that if removal were to take place it would expose him to that risk. Further to information from the applicants’ representatives indicating that the applicant was illegally transferred to Tajikistan and the Government’s reply to the Court’s request for factual information (see Appendix, “Other relevant information”), the applicants’ representative supplemented the applicant’s complaint alleging that that there had been a violation of Articles 3 and 34 on account of the applicant’s illegal transfer. In her view, such transfer could only have been achieved with the active or passive involvement of the Russian authorities and there had been no investigation into his alleged abduction. The Government submitted that they had had no information confirming that the applicant’s departure had not been voluntary and that, in any case, the applicant’s alleged kidnapping by unidentified persons after the expulsion hearing could not be imputed to the State.

4. The Court notes that the complaint under Article 3 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.

5 . In so far as the applicant’s complaint concerned the risk of ill-treatment that he 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 applicant, the manner in which the indictment was issued against him (see paragraph 2 above) and perfunctory judicial review of his allegations by the domestic courts (see Appendix, “Removal proceedings”), the Court finds no reason to depart from its earlier findings in similar cases and concludes that at the time of his alleged removal for Tajikistan a real risk had existed that the applicant would be subjected in Tajikistan to treatment proscribed by Article 3 of the Convention.

6. In so far as the complaint concerns the alleged abduction of the applicant and his illegal transfer to Tajikistan, 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).

7. 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). Having regard to the repetitive pattern of disappearances of applicants in similar circumstances and taking into account the applicant’s background, the Court is satisfied that the Russian authorities were aware that the applicant 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). However, even though the Government claimed that the relevant State bodies were duly alerted by the Ministry of Justice about the application of interim measure by the Court in respect of the applicant (see Appendix, “Other relevant information”), no evidence was submitted by the Government that such notification was in fact taken into account and that the relevant steps were taken in view of the precarious situation of the applicant (see, for similar reasoning, Mukhitdinov , cited above, § 63).

8. 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 investigation into the applicant’s alleged abduction.

9. 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 the applicant’s return with results of the domestic investigation or other evidence (see Appendix, “Other relevant information” Summary of the parties’ submissions; 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). The Court also considers that given the circumstances of the present case, the Russian Government had not complied with an indication of an interim measure and nothing had objectively impeded that compliance (see O.O. v. Russia , no. 36321/16, §§ 59-63, 21 May 2019).

10. 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 the applicant 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. Furthermore, the Court holds that the authorities breached the interim measure indicated under Rule 39 of the Rules of the Court and that they therefore failed to comply with their obligations under Article 34 of the Convention.

11. The applicant also raised other complaints which are covered by the well ‑ established case-law of the Court. They concern the conditions in the Krasnoye Selo centre for detention of foreigners in cell no. 708 between 17 September and 3 October 2018 (for 16 days) and the delay in appeal review of the applicant’s complaint against the detention order of 23 July 2018 pending extradition, which constituted 2 months and 3 days (see Appendix, “Detention” and “Removal proceedings” for details). 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 grounds. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they disclose a violation of Articles 3 and 5 § 4 of the Convention in the light of its findings in the following judgments (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 121, 10 January 2012; Kim v. Russia , no. 44260/13, §§ 31-35 and 39-45, 17 July 2014; Mamedova v. Russia , no. 7064/05, § 96, 1 June 2006; and Dimo Dimov and Others v. Bulgaria , no. 30044/10, § 80, 7 July 2020 ).

12. The applicant also complained under Article 13 of the Convention that he had not had an effective domestic remedy in respect of his complaint under Article 3 of the Convention on account of his ordered expulsion to Tajikistan. Having regard to the facts of the case, the submissions of the parties, and its findings above (see paragraph 5 above), the Court considers that it has examined the main legal questions raised in the present application and there is no need to give a separate ruling on the admissibility and the merits of the complaint under Article 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 201 4, with further references, and, in the context of removals, O.O. v. Russia , cited above, § 64).

13. The applicant also raised other complaints under Article 3 (conditions of detention in the pre-trial detention facility) and Article 5 § 4 of the Convention (delay in appeal review of order for detention pending administrative expulsion of 17 September 2018) (see Appendix for details). The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

14. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

15. The applicant claimed an award in respect of non-pecuniary damage in connection with the violations found. He left the amount to be determined at the Court’s discretion.

16. The Government submitted that an award, if made, should be determined in accordance with the Court’s well-established case-law.

17. The Court considers that the applicant has suffered non‑pecuniary damage which cannot be compensated for solely by the finding of violation. Having regard to the seriousness of the violation in question and to equitable considerations, it awards 30,000 euros (EUR) to the applicant in respect of non-pecuniary damage. Given the applicant’s extremely vulnerable situation in Tajikistan, the Court considers it appropriate that the payment of the amount awarded to him by way of just satisfaction should be made directly to the bank account of the applicant’s representative before the Court, Ms Olga Pavlovna Tseytlina, for subsequent transmission to the applicant (see, mutatis mutandis , Savriddin Dzhurayev , cited above, § 251 and point 6 (a) (i) of the operative part) .

18. The applicant also claimed 110,000 Russian roubles (EUR 1,300) in respect of costs and expenses. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,300 covering costs under all heads; to be paid directly to the applicant’s representative’s account as requested by the applicant.

19. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, the payment of which is to be made directly to the bank account of the applicant’s representative before the Court, Ms Olga Pavlovna Tseytlina, for subsequent transmission to the applicant;

(ii) EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly to Ms Olga Pavlovna Tseytlina’s account;

(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 point.

Done in English, and notified in writing on 29 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova María Elósegui Deputy Registrar President

Appendix

Application

lodged

communicated and

re-communicated on

28 September 2018

17 October 2019

9 January 2021

Detention

Detention pending extradition :

In 2018 :

In SIZO, pursuant to the orders of the Kirovskiy District Court of Saint-Petersburg:

24 January - 22 February 2018;

23 February - 4 March 2018;

1 March - 24 July 2018;

23 July - 14 September 2018.

Detention pending administrative expulsion :

In police station No. 31:

14 September 2018 taken from SIZO to the Kirovskiy District police station in Saint Petersburg and detained there until 17 September 2018.

In the Krasnoye Selo detention centre:

17 September - 3 October 2018.

In police station no. 38:

10 October – 11 October 2018.

In the Krasnoye Selo detention centre:

11 - 31 October 2018 : released pursuant to the court order of 30 October 2018.

In 2019 :

18-20 September 2019 – arrested by the police pursuant to international search warrant, released at the order of the Prosecutor of the Petrogradskiy District of Saint ‑ Petersburg, who held that the applicant should not be expelled, inter alia , because “an interim measure of 28 September 2018 [was] pending in respect of him and ... removal [of the applicant] in violation of that measure may be considered as incompliance of the State with their obligation under Article 34 of the Convention.” [emphasis added]

In 2020 :

21 September 2020 – arrested by the police in the Kingisepp District of the Leningrad Region.

22 September 2020 – detained in the expulsion hearing; left Russia.

Removal proceedings

Extradition proceedings

16 February 2017 – a bill of indictment issued by the Tajik authorities in respect of the applicant, according to which the applicant was charged with membership of the Islamic Renaissance Party of Tajikistan (“IRPT”) and Group 24, that had been declared “terrorist” (IRPT) and “extremist” (IRPT and Group 24) organisations by the Tajik authorities for their alleged goals of insurrection against the constitutional order and overthrowing the government. On the same day a search and arrest warrant in the applicant’s name was issued by the Tajik authorities.

25 January 2018 – the Kirovskiy District Court of Saint Petersburg ordered the applicant’s detention pending extradition; detention extended, last time om 23 July 2018; the appeal hearing against that order for detention took place, after three adjournments, on 26 September 2018.

14 September 2018 - the prosecutor ordered release as documents in support of the extradition request had not been submitted by the Tadjik authorities;

26 September 2018 the Saint-Petersburg City Court remitted the order for the applicant’s detention of 23 July 2018 for new examination.

16 November 2018 - the Kirovskiy District Court of Saint-Petersburg terminated extension of detention pending extradition, at the request of the prosecutor. Administrative expulsion proceedings

In 2018:

17 September 2018 - the Kirovskiy District Court of Saint Petersburg ordered administrative expulsion (enforced removal) for breaching immigration regulations and placement in the detention centre pending removal.

2 October 2018 the Saint Petersburg City Court - enforced removal replaced by controlled voluntary departure, released from detention as a result. However, detained again on 11 October 2018 as not having complied with the court’s order of voluntary departure.

11 October 2018 - the Kirovskiy District Court of Saint Petersburg ordered administrative expulsion (enforced removal) for having failed to leave Russia voluntarily and placement in the detention centre pending enforced removal.

30 October 2018 - the Saint Petersburg City Court ordered re-examination (on procedural grounds) and the release of the applicant, making a reference to the application of the interim measure in respect of the applicant.

19 December 2018 - the Kirovskiy District Court of Saint Petersburg discontinued administrative proceedings against the applicant (for having failed to leave Russia voluntarily), including owing to the pending interim measure in respect of him.

In 2020:

21 September 2020 – the Kingisepp Town Court of the Leningrad Region found the applicant guilty of breaching the immigration regulations and ordered his administrative expulsion (no information provided on the detention or release of the applicant in the judgment).

In the hearing the applicant specifically requested the Town Court not to order his expulsion to Tajikistan, owing to the risk of ill-treatment there. He also provided a copy of the Court’s letter stating that on 28 September 2018 the interim measure had been applied in respect of him. The Town Court noted the contents of the letter but stated that the applicant had submitted no proof that he had in fact lodged an application with the Court and that his complaint had not been struck out by the Court.

20 October 2020 – the Leningrad Regional Court confirmed the order for expulsion of the applicant.

The domestic courts limited their reasoning to general statements about the absence of any risks facing the applicant; no review of the applicant’s arguments was made in the light of the Court’s case law concerning the treatment of persons accused of crimes of religious and/or political extremism in Tajikistan and international reports on that matter. No real assessment of whether substantial grounds had been shown for believing that the applicant faced a real risk of treatment violating Article 3 of the Convention.

Temporary asylum / Refugee status proceedings

Refugee Status Proceedings

3 September 2018 - refusal to grant refugee status by the Saint Petersburg MVD;

9 November 2018 – refusal confirmed by the Russian Ministry of the Interior (“the Russian MVD” (the main migration authority)).

Temporary Asylum Proceedings

in 2018 :

24 September 2018 – applied for temporary asylum, no reply received.

10 October 2018 – came to apply for temporary asylum but was arrested for not having left Russia voluntarily, pursuant to the court order of 2 October 2018.

12 October 2018 - applied again, on an unspecified date, refusal issued by the migration authorities (the Moscow MVD).

9 November 2018 – the Russian MVD confirmed refusal.

14 May 2019 – the Basmanniy District Court of Moscow confirmed the refusal.

18 November 2019 – the Moscow City Court upheld.

in 2019:

3 October 2019 – the Moscow MVD refused request for temporary asylum.

4 December 2019 – the FMS Russia rejected appeal.

15 October 2020 – the Basmanniy District Court of Moscow confirmed refusal.

Other relevant information

28 September 2018 – interim measure applied by the Court preventing the applicant’s removal to Tajikistan.

Conditions of detention (as per the applicant’s submissions):

SIZO-4 (Saint-Petersburg):

25 January – 27 April 2018 – cell no. 169 : 35 sq.m., 16 detainees; 2.2 sq.m per person;

End of April/early May – mid-July 2018 – cell no. 127 , 35 sq.m., 12 detainees; 2.9 sq.m per person.

SIZO-1 (Kolpino, the Saint-Petersburg Region):

Mid-July 2018 + 15 days in quarantine cell of 30 sq.m., 10 persons, 3 sq.m per person; insects in the cell.

Mid-July – 14 September 2018 – cell no. 10-26 (bloc 10, cell no. 26); 9 sq.m; 2 persons; 4,5 sq.m per person; 10–minute shower once a week.

Police station no. 31, the Kirovskiy District of Saint-Petersburg :

14-17 September 2018: 3 sq.m., no access to drinking water and toilet; no sleeping place; only a bench; no food; had water only when taken to the toilet.

Krasnoye Selo detention centre:

17 September – 3 October 2018: cell no. 708, 30 sq.m., 11 persons (that is, 2.7 sq. m per person); shower and a toilet in a hallway; cell door open; irregular outdoor exercise of no more than 15 minutes, no possibility to wash clothes or to engage in meaningful activities.

Police station no. 38, the Admiralteyskiy District of Saint-Petersburg:

10 October – 11 October 2018, cell no. 38, 3 sq.m., dark and stuffy, no access to drinking water or toilet; no sleeping bed; only a bench, no food provided.

Summary of the parties’ submissions concerning the applicant’s departure for Tajikistan on 22 September 2020

Ms. F., a lawyer who represented the applicant in the expulsion hearing on 22 September 2020, submitted a statement according to which the applicant had been taken in unknown direction by unidentified men dressed in plain clothes immediately after the hearing and that she had lost contact with him after that. The applicant’s lawyer before the Court, Ms Tseytlina, submitted furthermore that access to the District Court’s building on 22 September 2020 was restricted owing to sanitary measures in place, the reception of public had been suspended and that only the law enforcement authorities in possession of entry passes could enter the court building and detain the applicant.

The Government submitted that on 22 September 2020 the Kingisepp Town Court of the Leningrad Region had ordered the applicant’s expulsion in the form of the enforced removal. They stated furthermore that the applicant had not been placed in the detention centre for foreigners and had been detained only until the end of the hearing. According to the information from the Bailiff’s Office, the enforcement proceedings in respect of the order of the applicant’s expulsion had not been initiated. The Government also stated that they had no information confirming that his departure was not voluntary and that in any case, the applicant’s alleged kidnapping by unidentified persons after the expulsion hearing could not be imputed to the State. An extract from a border control registry submitted by the Government indicated that on 22 September 2020 the applicant’s administrative expulsion had been ordered and that the purpose of departure had been “private”. On 12 February and 15 April 2021, the Government informed the Court that all competent bodies had been informed by the Ministry of Justice about the application of an interim measure by the Court in respect of the applicant.

On 9 April 2021 Ms Tseytlina submitted a written statement of 3 April 2021 signed by the applicant that had been sent to her by his lawyer in Tajikistan. The applicant stated, inter alia , that on [20] September 2020 he had been apprehended by the officers of the Kingisepp MVD and taken to the Kingisepp Town Court the next day. When the court ordered his administrative expulsion, the officers of the Russian Federal Security Service (“FSB”) had taken him to Pulkovo airport where

they had handed him over to the officers of the Ministry of Interior of Tajikistan. The applicant submitted that he had never been released and could not leave Russia on his own. He submitted furthermore that he had been tortured in Tajikistan for seven days when he arrived there. On 20 January 2021, he had been sentenced to fourteen years’ imprisonment. The applicant submitted copies, in Tajik and Russian languages, of the judgment against him that had been delivered by the court in Tajikistan.