Communicated on 7 April 2017

FOURTH SECTION

Application no. 79750/16 A.A. against Ukraine lodged on 27 December 2016

STATEMENT OF FACTS

The applicant is a Tajikistani national, who was born in 1994. The Court decided that the applicant ’ s identity should not be disclosed to the public (Rule 47 § 4). The applicant is represented before the Court by Mr V.I. Melnychuk , a lawyer practising in Kyiv.

A. The circumstances of the case

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

In 2012 the applicant moved from Tajikistan to Russia (Saint Petersburg) to work there. In Russia the applicant allegedly joined the organisation “Group 24” (“ Группа 24”) which is opposing to the Government of Tajikistan. On 9 October 2014 the Supreme Court of Tajikistan declared that organisation extremist.

In June 2016 the applicant arrived in Ukraine. He lived in Kharkiv .

1. Expulsion proceedings

On 15 July 2016 the domestic authorities decided that the period of the applicant ’ s stay in Ukraine should be limited by 17 July 2016. The applicant was not served a copy that decision.

On 18 July 2016 the Dzerzhynskyy District Police of Kharkiv found that the applicant had no legal grounds to stay in Ukraine and that he therefore had to be removed “to the country of [his] origin”. By the same decision the applicant was obliged to leave Ukraine by 19 July 2016 and he was banned from entering Ukraine for three years.

Further to the above decision, the General Directorate of State Migration Service in Kharkiv Region initiated court proceedings for the applicant to be forcibly removed from Ukraine.

On 21 July 2016 the Dzerzhynskyy District Court of Kharkiv allowed the claims of the migration authorities and ordered that the applicant should be forcibly removed “outside Ukraine”. In its decision, the court noted that its ruling was to be enforced immediately and that it could be appealed against within ten days of the day of the receipt of its copy. The hearing was held in the presence of the applicant who was assisted by an interpreter.

According to the applicant, on 21 July 2016 the judge pronounced an introductory and operative parts of the decision and the applicant ’ s lawyer became aware of the full text of the decision much later, on 6 December 2016, following which on 15 December 2016 the applicant lodged an appeal. No information has been provided as to the outcome of examination of the applicant ’ s appeal.

On 22 July 2016 the General Directorate of State Migration Service in Kharkiv Region decided that in order to ensure the applicant ’ s removal from Ukraine he should be placed in a facility for temporary detention of foreigners and stateless persons (“the detention facility”).

On 31 August 2016 the General Directorate of State Migration Service in Kharkiv Region requested its headquarters to assist in purchasing a ticket to Tajikistan in order to enforce the court ’ s decision on the applicant ’ s removal.

On 19 September 2016 the Office of the Prosecutor General requested the governor of the detention facility to ensure that the applicant ’ s detention be lawful. The Office of the Prosecutor General stated that it was exclusively within the competence of the administrative courts to decide on the temporary detention of foreigners with a view to their expulsion.

On 21 September 2016 the Ripky District Court of Chernihiv Region ordered the applicant ’ s detention until 20 March 2017, pending his removal from Ukraine.

2. Asylum procedure

On 30 August 2016 the applicant made an application for asylum in Ukraine.

The applicant alleged that he was a member of the organisation “Group 24” opposing to the current Government of Tajikistan. The other members of that organisation were subjected to persecution, abduction, forcible transfers to Tajikistan. Allegedly, the Tajikistani police approached the applicant ’ s family suggesting that they convince the applicant to stop his membership in “Group 24”.

The migration authorities made a number of interviews with the applicant in order to establish the circumstances of his application.

On 19 September 2016 the Directorate of State Migration Service in Chernihiv Region refused his application as containing no valid reasons. The directorate found that the applicant failed to substantiate that he was indeed a member of “Group 24” and his personal situation did not suggest that he ran a risk of being persecuted in Tajikistan.

The applicant challenged that decision before the court.

On 18 October 2016 the Chernihiv Circuit Administrative Court upheld the directorate ’ s decision of 19 September 2016. The court found that the applicant had failed to prove existence of personal risk of being persecuted in Tajikistan, his membership in “Group 24” had not been established and there was no evidence of his activities within that organisation.

The applicant appealed against that decision.

On 22 December 2016 the Kyiv Administartive Court of Appeal upheld the decision of the first-instance court considering that the applicant ’ s asylum request had been unfounded.

On 5 January 2017 the applicant appealed on points of law against the decision of the Kyiv Administrative Court of Appeal of 22 December 2016.

On 13 January 2017 the Higher Administrative Court opened the proceedings. There is no information as to the outcome of those proceedings.

3. Proceedings before the Court

On 27 December 2016 the applicant ’ s lawyer requested under Rule 39 of the Rules of Court that the applicant ’ s removal from Ukraine be suspended.

On 28 December 2016, the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Ukrainian Government, under Rule 39, that the applicant should not be removed from Ukraine for the duration of the proceedings before the Court. The Government were invited, among other issues, to clarify whether the authorities had determined the country to which the applicant would be removed.

On 11 January 2017 the State Migration Service informed the Office of the Government Agent before the Court that in accordance with the well-established practice the foreigners were expelled to the country of their nationality or the country of their permanent residence. The State Migration Service specified that they had not determined the destination country in the applicant ’ s case.

On 10 March 2017 the Court maintained the interim measure until further notice.

B. Relevant domestic law and practice

The relevant domestic law and practice can be found in the judgment in the case of Abuhmaid v. Ukraine (no. 31183/13, 12 January 2017, not final).

C. International Reports on Tajikistan

The relevant reports on human rights situation in Tajikistan can be found in the judgment in the case of Sidikovy v. Russia (no. 73455/11, §§ 117-121, 20 June 2013).

1. Amnesty International

The Annual Report 2015/16 The State of the World ’ s Human Rights reads, in so far as relevant:

“TAJIKISTAN

...

Authorities continued to impose sweeping restrictions on freedom of expression. Several prominent human rights NGOs were targeted for “inspections” by various authorities, and some were “advised” to close down. Members of opposition groups faced increasing harassment, violence and even death, both in Tajikistan and in exile. Some political opposition activists and those accused of religious extremism were abducted and forcibly returned from several former Soviet countries. Lawyers representing opposition activists or those charged with anti-state offences were themselves at risk of harassment, intimidation and punitive arrest. Torture and other ill-treatment remained widespread, and lawyers were repeatedly denied access to their clients. ...

REPRESSION OF DISSENT

Members of opposition groups, including Group 24 (banned by the Supreme Court as “extremist” in October 2014) and the Islamic Renaissance Party of Tajikistan (IRPT), faced increasing harassment and violence. ...

On 5 March, Umarali Kuvvatov , an exiled founding member of Group 24, was shot dead by unknown men in Istanbul, Turkey. He had earlier expressed concerns that the authorities had ordered his assassination. ...”

2. Human Rights Watch

The World Report 2016 reads, in so far as relevant:

“Tajikistan

Tajikistan ’ s already poor rights record dramatically worsened in 2015, as authorities declared the country ’ s leading opposition party a terrorist organization and banned it, imprisoned approximately 200 opposition activists, extradited and kidnapped government critics abroad, arrested several lawyers and at least one journalist, and harassed workers at nongovernmental organizations (NGOs) with onerous checks.

As in previous years, the government regularly blocked numerous Internet sites and continued a campaign to enforce severe restrictions on religious practice. NGOs reported several cases of torture and ill-treatment in pretrial custody and prisons. Domestic violence against women also continues to be a serious problem.

Government Opposition and Detention of Activists Abroad

...

On March 5, assailants shot and killed opposition figure Umarali Kuvvatov in Istanbul. Kuvvatov headed Group 24, an opposition group that called for democratic reforms and accused President Emomali Rahmon and the ruling elite of corruption. Three Tajik citizens are on trial in Turkey for Kuvvatov ’ s murder. The circumstances of the shooting, and previous efforts by Tajik authorities to detain Kuvvatov in various countries, led many observers to suggest Kuvvatov ’ s killers may have been acting on orders from or with the approval of Dushanbe.

Since October 2014, authorities have actively sought to arrest anyone associated with Group 24, convicting several people in Tajikistan on vague charges of extremism and seeking the extradition of activists for the group who live in Russia, Belarus, and Moldova. ...

In another case, on July 15, Belarusian authorities detained peaceful Tajik activist Shabnam Khudoydodova as she was crossing the Russian-Belarusian border. A member of Group 24 who lived in St. Petersburg, Khudoydodova publicly called for reforms in Tajikistan. After learning that security services might be preparing to forcibly return her to Tajikistan, Khudoydodova fled to Belarus, where she sought refugee status. At time of writing, Tajik authorities were seeking her extradition on extremism charges.

Sobir Valiev , deputy head of the opposition group the Congress of Constructive Forces, and Group 24, was detained in August for several weeks by Moldovan migration police in the Moldovan capital of Chisinau. The Moldovan police detained him on a request from the Tajik government, which sought his extradition on similar extremism charges. ... ”

COMPLAINTS

1. The applicant complains that his expulsion to Tajikistan would be in violation of Article 3 of the Convention.

2. The applicant complains under Article 2 of Protocol No. 4 that the domestic authorities ’ decision of 15 July 2016 on limitation of his stay in Ukraine by 17 July 2016 was unlawful and disproportionate.

3. The applicant complains under Article 13 taken in conjunction with Article 3 of the Convention that the domestic authorities failed to ensure effective examination of his claim that his expulsion would put him at risk of ill-treatment. The applicant further complains under Article 13 of the Convention taken in conjunction with Article 2 of Protocol No. 4 that he did not have an effective remedy to challenge the decision of 15 July 2016 on limitation of his stay in Ukraine by 17 July 2016.

4. The applicant complains under Article 5 § 1 (f) of the Convention that his detention between 22 July and 21 September 2016 on the basis of decision of the migration authorities was unlawful. Furthermore, he complains that the whole period of his detention starting from 22 July 2016 has not been compatible with the purpose of Article 5 § 1 (f) of the Convention, insisting that his stay in Ukraine was lawful.

QUESTIONS TO THE PARTIES

1. In the light of the applicant ’ s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion were enforced?

2. Has there been a violation of the applicant ’ s right to liberty of movement, contrary to Article 2 of Protocol No. 4?

The Government are invited to provide ( i ) a copy of the decision of 15 July 2016 imposing limits on the applicant ’ s stay in Ukraine, (ii) the evidence of serving that decision on the applicant.

3. Having regard to the requirements of Article 13 of the Convention, d id the applicant have at his disposal effective domestic remedies for his complaints under Article 3 of the Convention and Article 2 of Protocol No. 4? In particular, in view of the apparent uncertainty as to the country of destination, did the applicant have effective judicial review in the course of his removal procedure?

4. As regards the applicant ’ s detention with a view to his expulsion ( starting from 22 July 2016), was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was his deprivation of liberty compatible with paragraph (f) of this provision?