THIRD SECTION

DECISION

Applications nos. 16473/19 and 34422/19 F.T. and Khoshim Choriyevich RAKHMANOV against Russia

The European Court of Human Rights (Third Section), sitting on 8 February 2022 as a Committee composed of:

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

Having regard to:

the applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

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

the decisions to give priority (Rule 41 of the Rules of Court) to the applications and the decisions to indicate interim measures to the respondent Government under Rule 39 of the Rules of Court;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The cases concern risks of treatment contrary to Article 3 of the Convention in event of removal of the applicants, Uzbek and Tajik nationals, respectively, to their countries of origin, and alleged absence of effective remedies at their disposal, as required by Article 13 of the Convention.

2. On different dates in 2014 and 2018 Uzbek and Tajik authorities brought criminal proceedings against the applicants on charges of participation in religious extremist or terrorist organisations. The applicants were further apprehended in Russia and placed in detention pending extradition.

3. Extradition order issued in respect of the first applicant on 24 December 2014 was later annulled by the domestic court with refence to real risk of ill ‑ treatment in the event of removal to Uzbekistan. The outcome of extradition proceedings in respect of the second applicant is unknown. On 27 April 2015 and 8 July 2019 the applicants were released, the second applicant upon expiration of the maximum term for detention in view of extradition.

4. On 9 November 2018 entry bans were imposed on both applicants. The respective decisions allegedly have not been communicated to them. The first applicant became aware of the entry ban on 26 March 2019, upon receipt of the decision to reduce his stay in Russia adopted on 22 March 2019 on the basis of the entry ban. The second applicant was informed of the entry ban on 8 July 2019, in response to his own inquiry. Both applicants unsuccessfully contested the entry bans and the decision to reduce stay in Russia in the domestic courts. In respect of the second applicant the domestic court distinguished entry ban proceedings from deportation proceedings and noted that no decision to deport the applicant had been adopted.

5. The applicants complain under Articles 3 of the Convention about existence of real risk of torture in the event of their removal to Uzbekistan and Tajikistan, respectively, and about absence of effective remedies at their disposal, as required by Article 13 of the Convention.

6. On 27 March 2019 and 1 July 2019, respectively, the Court decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be removed from Russia for the duration of the proceedings before it. The Court further decided to give priority to the applications and anonymity and confidentiality to the first applicant (Rules 41 and 47 § 4 of the Rules of Court).

THE COURT’S ASSESSMENT

7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

8. The Contracting States have the right, as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see F.G. v. Sweden [GC], no. 43611/11, § 111, 23 March 2016). However, it is the Court’s settled case ‑ law that expulsion or extradition 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 individual concerned, if removed, faces a real risk of being subjected to treatment contrary to Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).

9. In cases where applicants have faced expulsion or extradition the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable (see Vijayanathan and Pusparajah v. France , 27 August 1992, § 46, Series A no. 241-B; Pellumbi v. France (dec.), no. 65730/01, 18 January 2005; and Etanji v. France (dec.), no. 60411/00, 1 March 2005). It has adopted the same stance in cases where execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Nasrulloyev v. Russia , no. 656/06, § 59, 11 October 2007; Rakhmonov v. Russia , no. 50031/11, §§ 34-37, 16 October 2012; and Budrevich v. the Czech Republic , no. 65303/10, §§ 64-72, 17 October 2013).

10. Under Russian law a specific decision requiring a foreigner’s removal from the country must be taken before a foreigner can be removed, for instance, an extradition order, a decision imposing the penalty of administrative removal for an administrative offence or a decision declaring his presence in Russia undesirable and ordering his deportation. In the absence of any such decision, as a rule, it cannot be said that the applicant is a “victim” of a potential violation under Article 3 of the Convention (see A.R. v. Russia (dec.), no. 25923/15, § 57, 10 May 2016; Razigdad v. Russia [Committee] (dec.), no. 30764/13, § 38, 20 November 2018; and M.L. and Others v. Russia , nos. 25079/19 and 18570/19, § 35, 6 April 2021; also, by contrast, A.L. (X.W.) v. Russia , no. 44095/14, § 65, 29 October 2015).

11. In the present cases the Court sees no ground to depart from the general approach adopted in its case-law summarised above. The relevant provisions of the domestic law, notably section 25.10 of The Entry and Exit Procedures Act (Federal Law no. 114-FZ of 15 August 1996) and section 31(1) and (3) of The Foreigners Act (Federal Law no. 115-FZ of 25 July 2002) provide that a foreigner, whose entry to Russia was banned or whose stay in Russia was reduced, is under an obligation to leave Russia; failure to do so will lead to deportation. Procedural rules governing , inter alia , adoption of deportation order are set in the Order no. 239 of 24 April 2020 issued by the Ministry of Internal Affairs of the Russian Federation.

12. The extradition proceedings were in motion in respect of both applicants in the past. While it can be concluded that the Uzbek and Tajik authorities have thus expressed their adverse interest in the applicants, the Court observes that these proceedings were terminated, in respect of the first applicant, and have not led to an enforceable decision, in respect of the second applicant (see Rakhmonov , cited above, § 35).

13. Moreover, the Court has not been provided with any information as to whether any other enforceable removal decision has been taken in respect of the applicants. They submitted that no deportation orders have been issued in their respect yet; however, they considered themselves under a threat to be deported automatically, on the sole basis of decision to reduce stay in Russia or entry ban, without prior consideration of the risks by any domestic authority.

14. Previously, in a similar context, in events of absence of a deportation order in respect of an applicant, the Court found that the removal was not inevitable and impending even in the case when the applicant was issued with a decision containing a clear and specific requirement to leave Russia or otherwise be deported (see A.R. v. Russia , cited above, and, by the way of comparison, A.L. (X.W.) v. Russia , cited above). In the present cases the applicants have not been provided with such decisions.

15. More notably, the applicants were released and remain in Russia, and there is nothing to suggest that they are or have ever been in hiding – so that the authorities couldn’t have deported them – or to reasonably assume that they are at risk of being removed in a manner that does not fall under the regular expulsion or deportation procedures (see M.L. and Others v. Russia, cited above, § 39; Babajanov v. Turkey , no. 49867/08, §§ 74-81, 10 May 2016, where the applicant has been arbitrarily removed by the authorities in the past; and, by the way of comparison, Abdolkhani and Karimnia v. Turkey, no. 30471/08, §§ 54-55, 22 September 2009).

16. Finally, four and seven months, respectively, elapsed since adoption of the entry bans on 9 November 2018 and indication of interim measures to stay the applicants’ removals to Uzbekistan and Tajikistan under Rule 39 of the Rules of Court on 27 March 2019 and 1 July 2019. No deportation orders were adopted in respect of the applicants in that period and no other practical arrangements were made to remove them, even though nothing prevented the authorities from doing so (see M.S.S. v. Russia (dec.), no. 32779/15, § 39, 28 February 2017). The applicants also did not inform the Court of any removal proceedings in progress after application of interim measures.

17. The above considerations, taken together, have led the Court to the conclusion that the applicants’ complaints under Article 3 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

18. In view of the above conclusion, the applicant had no “arguable claim” to be the victim of a violation of Article 3 of the Convention (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52, and Nzapali v. the Netherlands (dec.), no. 6107/07, § 36, 17 November 2015). Accordingly, at present, the complaint under Article 13 of the Convention in conjunction with its Article 3 is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

19. The interim measures previously indicated in these applications therefore ceases to have any basis.

20. The above findings do not prevent the applicants from lodging new applications before the Court and making use of the available procedures, including the one under Rule 39 of the Rules of Court, in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Bakoyev v. Russia , no. 30225/11, § 100, 5 February 2013).

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 10 March 2022.

Olga Chernishova María Elósegui Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Nationality

Represented by

1.

16473/19

F.T. v. Russia

27/03/2019

F.T.

1984 Uzbekistan

Daria Vladimirovna TRENINA

Eleonora DAVIDYAN

Kirill

ZHARINOV

2.

34422/19

Rakhmanov v. Russia

01/07/2019

Khoshim Choriyevich RAKHMANOV 1984 Tajikistan

Eleonora DAVIDYAN