Communicated on 10 November 2016

THIRD SECTION

Application no. 39552/16 K.F . against Russia lodged on 12 July 2016

STATEMENT OF FACTS

The applicant is a Tajik national. His current whereabouts are unknown. It appears that he is now detained in Tajikistan. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). The applicant is represented before the Court by Ms R. Magomedova , a lawyer practising in Moscow.

The circumstances of the case

The facts of the case, as submitted by the applicant and later by his representative on his behalf, may be summarised as follows.

Background information

In September 2014 the applicant arrived in Russia to earn a living.

In 2015 the Tajik authorities charged him with membership of, and recruitment to a proscribed terrorist organization, and his name was put on the cross-border wanted list.

In July 2015 the applicant was arrested in Moscow and placed in a remand prison.

In November 2015 the applicant requested to be granted refugee status and temporary asylum in Russia. It appears that no final decision has yet been taken in those proceedings.

In February 2016 the Russian Prosecutor General ’ s Office ordered the applicant ’ s extradition.

On 13 July 2016 the Court granted the applicant ’ s request of 11 July 2016 for an interim measure and indicated to the Russian Government , under Rule 39 of the Rules of Court, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Tajikistan or another country until further notice.

On 14 July 2016 the Supreme Court of Russia in the final instance upheld the extradition order, and it became enforceable.

On 15 July 2016 the term of the applicant ’ s detention was due to expire, and he was to be released from remand prison. Neither the relatives nor the lawyers who were waiting for the applicant at t he entrance of the remand prison were able to meet him that day . The applicant has not contacted either his relatives or the lawyer , and he has not been seen since.

Two days later an unknown member of the applicant ’ s family informed the representative that the applicant had resurfaced in one of the remand prisons in Tajikistan.

In August 2016 a prison officer informed the representative that the applicant had been transferred to the Tajik authorities on instruction of the Federal Prison Service of Russia.

T he representative complained about the incident to v arious domestic authorities. It appears that her complaints are pending.

COMPLAINTS

In his initial letter to the Court of 11 July 2016 containing a request for an interim measure the applicant complained that, if removed to Tajikistan, he would be tortured in detention.

In the application form dated 9 August 2016 the applicant ’ s representative further complains, on his behalf, as follows:

1) She complains under Articles 2 and 3 of the Convention that the applicant runs a real risk of being ill-treated in detention as a result of his transfer to Tajikistan. She avers that, by failing to prevent the applicant ’ s forcible transfer to Tajikistan the Russian authorities have failed in their obligation to protect the applicant against the real and immediate risk of exposure to torture and ill-treatment.

2) She complains under Articles 3 and 8 of the Convention about appalling conditions of the applicant ’ s detention pending extradition.

3) She complains under Article 13 of the Convention that the applicant did not have an effective remedy in respect of the complaint concerning the conditions of detention.

4) She complaints under Article 5 § 4 of the Convention that the applicant ’ s appeal against an extension of detention was not examined within 56 days.

5) She finally complains that the applicant ’ s removal from Russia to Tajikistan in violation of the interim measure indicated under Rule 39 breached Article 34 of the Convention.

QUESTIONS TO THE PARTIES

1. The parties are requested to provide information on the applicant ’ s whereabouts.

2. Was there a breach of Article 3 of the Convention on account of the allegedly appalling conditions of the applicant ’ s detention in a Moscow remand prison ?

3. In the light of the applicant ’ s claims and the available information, did the applicant ’ s return to Tajikistan expose him to a real risk of treatment contrary to Article 3 of the Convention? In particular:

(a) In various domestic proceedings and before the Court did the applicant adduce evidence capable of proving that there were substantial grounds for a risk of ill-treatment?

(b) In their turn, did the national authorities dispel the doubts that could exist about this risk (see Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008)? In the domestic proceedings, did the competent national authorities assess adequately the applicant ’ s claim that he would be exposed to a risk of being subjected to torture or to inhuman or degrading treatment if removed to Uzbekistan? Did the applicant obtain an “independent and rigorous scrutiny” of this claim?

4. Did the applicant leave Russia against his own will on or after 15 July 2016? If the applicant left Russia against his own will on or after 15 July 2016, and with reference to the letter by the deputy head of remand prison of 5 August 2016, were the authorities responsible for a breach of Article 3 on account of the passive or active involvement of their agents in the applicant ’ s forcible transfer to Tajikistan?

5. In the alternative, did the authorities fail to comply with their positive obligation to protect the applicant from the imminent threat of transfer to Tajikistan? In particular, what measures did the authorities take to protect the applicant against the possibility of being removed from Russia before his disappearance? Did the competent authorities do all that could be reasonably expected of them to avoid a real and immediate risk of the applicant ’ s being transferred to Tajikistan following his disappearance?

6. Taking into account the recurrence of incidents of unlawful transfer from Russia to States not parties to the Convention – in particular Tajikistan and Uzbekistan – to which the Russian Government have been insistently alerted by both the Court and the Committee of Ministers, the applicant ’ s background, and the application of interim measures under Rule 39 of the Rules of Court, were the authorities under a positive obligation to protect the applicant against the real and immediate risk of forcible transfer to Tajikistan and the ensuing risk of torture and ill-treatment in that country?

7. Was the applicant ’ s disappearance followed by a thorough and effective investigation capable of leading to identification and punishment of those responsible? The authorities are requested to provide the results of such investigation and a complete copy of the related criminal file, if any.

8. Was there a violation of Article 5 § 4 of the Convention on account of excessive length of the examination of the applicant ’ s appeal against the extension order of 12 January 2016?

9. Did the applicant have at his disposal an effective domestic remedy in respect of the alleged breach of Article 3 on account of poor conditions of detention, as required by Article 13 of the Convention?

10. Did the applicant have at his disposal an effective domestic remedy in respect of his complaint about a risk of treatment in breach of Article 3 in case of his extradition or other form of removal to Tajikistan, as required by Article 13 of the Convention? Did this remedy in principle and in the applicant ’ s case provide an opportunity for due consideration of that complaint? Did it provide for an automatic suspensive effect in respect of the applicant ’ s transfer to Tajikistan?

11. If the applicant was removed to Tajikistan against his own will, did such removal, which was contrary to the interim measure indicated on 13 July 2016, entail a breach of Article 34 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 128-29, ECHR 2005 ‑ I)?

12. The parties are further invited to continue to inform the Court of any updates on the progress of the investigation into the applicant ’ s disappearance, as well as of any other important factual developments in the case, as soon as this information becomes available to them.