Communicated on 20 December 2017

THIRD SECTION

Application no. 56368/17 Khudoberdi Turgunaliyevich NURMATOV against Russia lodged on 4 August 2017

STATEMENT OF FACTS

1. The applicant, Mr Khudoberdi Turgunaliyevich Nurmatov (Ali Feruz ), is an Uzbek national who was born in 1987 and before his arrest lived in Korolyov , Moscow Region. He is currently detained in a centre for the temporary detention of aliens in Moscow. He is represented before the Court by Mr K. Koroteyev , Ms T. Glushkova , Mr D. Khaymovich , Ms T. Chernikova , and Ms D. Bakhareva , lawyers practising in Moscow.

The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant is a journalist and a regular contributor to Novaya Gazeta , a weekly newspaper with national coverage prominently engaging in investigative journalism of social and political issues. He is known to the general public under the name Ali Feruz . His articles dealt with a wide array of issues including hate crimes, migrants ’ rights, discrimination against LGBT people, and the political and social situation in Uzbekistan. The applicant is openly gay.

4. The applicant ’ s mother is a Russian national and resides along with other members of the applicant ’ s immediate family in Russia. He has two sons, who reside with their mother, apparently in Turkey.

1. Background events

5. On an unspecified date towards the end of 1990s the applicant, a schoolboy at that time, moved to Russia to be reunited with his mother. In 2003 the applicant graduated from a high school in the Republic of Altay in Russia. After acquiring Uzbek nationality in 2004 he returned to Uzbekistan.

6. On unspecified date the applicant married Ms D., a Kyrgyz national.

7. In 2006 the applicant went back to Russia to study at the Russian Islamic University of Kazan. In 2007 he again returned to Uzbekistan.

8. According to the applicant, on 28 September 2008 the Uzbekistani police visited his place of residence. He was questioned concerning the legality of his spouse ’ s residence in Uzbekistan. He was taken to the town of Kokand and beaten with a metal rod by two servicemen from the National Security Service of Uzbekistan who were dressed in plain clothes. He was questioned about his studies in Islam and asked to cooperate with the authorities. On the following day he was beaten again, but released.

9. The applicant fled Uzbekistan in November 2008 and during the following years lived in the Kyrgyz Republic (November 2008 to March 2009) and the Republic of Kazakhstan (March 2009 to June 2011).

10. In July 2011 the applicant separated from his wife and moved to Russia.

11. In February 2012 he allegedly lost his Uzbek passport. Fearing the possibility of arrest and torture in Uzbekistan, he decided not to follow the procedure for obtaining a new passport because it would require him to travel back to his country of origin.

12. In 2012 the applicant started dating a man and in 2015 formally divorced from his wife.

2. Refugee status and temporary asylum proceedings

13. In 2015 the applicant applied for asylum in Russia. In a final administrative decision dated 21 April 2016, the Federal Migration Service of the Russian Federation dismissed the applicant ’ s application. The decision stated that the applicant ’ s family ties did not justify granting him asylum and neither did his sexual orientation. The decision reads in the relevant part: “the mere fact of the applicant ’ s belonging to a particular social group (non-traditional sexual orientation) does not justify his application for asylum”.

14. In the course of 2016 the applicant ’ s employer, Novaya Gazeta , made a number of attempts to regularise the applicant ’ s residence in Russia, but to no avail.

15. In 2016 the applicant applied for temporary asylum. He referred to his ill-treatment in Uzbekistan in 2008 and to his homosexuality as grounds precluding his removal to Uzbekistan. Between August 2016 and April 2017 his application was rejected, annulled and reconsidered three times, until it was dismissed by the Migration Department of the Ministry of Interior of the Russian Federation on 27 April 2017.

16. On 3 August 2017 the applicant applied for judicial review of the above decision to the Basmanny District Court of Moscow.

3. Expulsion proceedings

17. On 16 March 2017 the applicant was arrested at the entrance of the house where he lives and driven to the Department of Interior for the Presnenskiy District of Moscow. He was charged with failure to leave Russia although the time-limit for his visa-free stay had expired, an administrative offence carrying a penalty of mandatory expulsion.

18. On 17 April 2017 a judge of the Presnenskiy District Court of Moscow referred the case back to the police and the applicant was released.

19. On 1 August 2017 the applicant was again arrested in Moscow, as he was leaving the offices of Novaya Gazeta . He was again charged with the above administrative offence.

20. On the same day the Basmanny District Court of Moscow found the applicant guilty as charged, sentenced him to a fine of RUB 5,000 (EUR 82) and ordered his expulsion to Uzbekistan. The applicant was placed in detention pending expulsion.

21. On 4 August 2017 the applicant appealed. He relied, in particular, on the risk of ill-treatment in Uzbekistan on account of his homosexuality, on his family ties in Russia to his mother, who is a Russian national, and on his professional engagement with Novaya Gazeta .

22. On that day the applicant also asked the Court under Rule 39 of the Rules of Court to indicate an interim measure to the Russian Government preventing his removal to Uzbekistan. The Court granted the request on the same day.

23. On 8 August 2017 the Moscow City Court dismissed the applicant ’ s appeal and upheld the expulsion order of 1 August 2017. However, in view of the Court ’ s decision under Rule 39 of the Rules of Court, the City Court found that the expulsion order should not be enforced until the Court has decided the case. The City Court ordered that the applicant should stay in detention pending expulsion.

COMPLAINTS

24. The applicant complains under Article 3 of the Convention that his expulsion to Uzbekistan would expose him to a real risk of ill ‑ treatment in connection with his sexual orientation. He maintains that the mere existence of the criminal prohibition of homosexuality in Uzbekistan is sufficient to preclude his removal to that country.

25. The applicant also complains under Article 5 §§ 1 and 4 of the Convention that his detention pending expulsion is unlawful and not secured by judicial review.

QUESTIONS TO THE PARTIES

1. Would the applicant face a real risk of being subjected to treatment contrary to Article 3 of the Convention in the event of his removal to Uzbekistan in view of the current criminal prohibition of consensual sexual intercourse between men ( бесакалбазлык ) in that country? Is there a practice of prosecution for the above crime in Uzbekistan? Do the applicant ’ s individual circumstances prove the existence of the above risks in his country of origin? In the domestic proceedings, did the relevant national authorities adequately assess the applicant ’ s relevant claims?

2. Was the applicant ’ s detention pending expulsion “lawful” as prescribed by Article 5 § 1 (f) of the Convention?

3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention pending expulsion, as required by Article 5 § 4 of the Convention? Did he have access to a procedure for review of the lawfulness of his continuing detention? If yes, what were the legal and practical arrangements for this procedure?