Communicated on 13 June 2016

THIRD SECTION

Application no. 2236/16 S.S. against Russia lodged on 12 January 2016

STATEMENT OF FACTS

The applicant is an Uzbek national who was born in 1982. He is represented before the Court by Ms E.G. Davidyan and Ms D.V. Trenina , lawyers practising in Moscow.

In 2013 criminal proceedings were brought against him in Uzbekistan on suspicion of being a member of a proscribed religious extremist organisation , and an Uzbek court ordered his arrest.

At some point the applicant arrived in Russia. In 2013 he was convicted by a Russian court of counterfeiting currency and sentenced to three years ’ imprisonment.

In 2014 the Uzbek authorities confirmed their intention to seek the applicant ’ s extradition. There is no information on the current status of the extradition proceedings.

In October the Deputy Minister of Justice of Russia and in November 2015 the Federal Security Service of Russia issued decisions declaring the applicant ’ s presence on Russian territory undesirable (“the exclusion orders”). On 12 January 2016 the local migration authority decided to deport the applicant from Russia on the basis of the exclusion orders.

On 15 January 2016 the applicant ’ s term of imprisonment expired and he was released from the colony. On the same date he was arrested by the local migration service officers, and a domestic court ordered that the applicant be placed into a special-purpose facility pending his deportation. He is currently held in the special-purpose facility in the Lipetsk Region.

On 23 December 2015 and on 14 January 2016 the defense challenged the exclusion orders and the deportation order, referring, in particular, to the risk of ill-treatment in case of the applicant ’ s removal to Uzbekistan. On the same dates the defense requested, relying on Articles 85 to 87 of the Code of Administrative Procedure of the Russian Federation, that the court apply an interim measure and suspend both enforcement of the decisions on the undesirable stay and the applicant ’ s deportation. It appears that no reply to the request for an interim measure was forthcoming. On 9 March 2016 the Zamoskvoretskiy District Court of Moscow rejected the applicant ’ s administrative action. It appears that the appeal proceedings are pending.

In the meantime, the applicant applied for temporary asylum. It appears that his application has not been examined on the merits.

COMPLAINTS

The applicant complains under Article 3 of the Convention that because of the criminal proceedings pending against him in Uzbekistan, his deportation there would expose him to a real risk of torture and ill ‑ treatment.

He further complains under Article 13 that he does not have an effective remedy against the alleged violation of Article 3 of the Convention. In particular, he argues that the Russian authorities deliberately chose to apply the deportation procedure in respect of him in order to circumvent the procedural guarantees available in the extradition procedure and, furthermore, failed to notify the defence of the progress of the extradition proceedings.

He further submits, under the same provision, that the deportation procedure does not require a court order and, if a deportation order is issued, it is to be enforced immediately. Furthermore, domestic law does not provide for a specific appeal procedure with automatic suspensive effect. He asserts, in particular, that an appeal under Chapter 22 of the CAP – the only available legal avenue for challenging the deportation order – does not have automatic suspensive effect, and the determination of a separate application for a provisional measure of protection remains at the discretion of a judge.

Furthermore, he complains under Article 13 that the defence ’ s request under Articles 85 to 87 of the CAP to have the applicant ’ s deportation suspended remains unanswered, in breach of the one-day deadline set out in domestic law.

Finally, the applicant argues under the same Convention provision that his application for temporary asylum has not been effective.

QUESTIONS TO THE PARTIES

1. What measure by domestic authorities, if implemented, would trigger the applicant ’ s removal from Russia in the present case? Is it a deportation order, exclusion orders, a combination of those two, or any other measure?

2. Would the applicant risk being subjected to treatment in breach of Article 3 of the Convention in Uzbekistan if the deportation order were enforced?

3. Did the applicant have at his disposal an effective domestic remedy – or a combination of such remedies – for his complaint under Article 3, as required by Article 13 of the Convention? In particular,

( i ) Was the applicant able to raise his complaint of a risk of ill ‑ treatment in the event of his return to Uzbekistan? Did he obtain an “independent and rigorous scrutiny” by a national authority of his claim that he would be subjected to ill-treatment in detention if removed to Uzbekistan?

(ii) Did he have access to a remedy with automatic suspensive effect (see Gebremedhin [ Geberamadhien ] v. France , no. 25398/05, § 66, ECHR 2007-II; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012; and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012 ), or a combination of such remedies in the proceedings concerning the deportation or any other domestic proceedings? In the alternative, could he apply for suspension of the removal from Russia pending examination of his appeal against the removal?

In particular:

(a) In so far as the removal measure in the present case is an enforcement of the deportation order: was the administrative action against the exclusion orders and deportation order brought by the applicant under Chapter 22 of the Code of Administrative Procedure (“the CAP”) an effective remedy within the meaning of Article 13 of the Convention in respect of his complaint under Article 3?

( i ) The parties are invited to submit information on the procedure and time-limits for challenging a deportation order. Does the domestic law provides for a time-lapse between notification of the deportation order and its enforcement? Can a person be deported before the time-limit for appealing has expired?

(ii) Does lodging an appeal against a deportation order have automatic suspensive effect for the purposes of Article 13?

(iii) In the alternative, if an appeal against a deportation order is accompanied by a request for provisional measures of protection under Articles 85 to 87 of the Code of Administrative Procedure, does lodging or granting such appeal suspend the enforcement of the deportation order?

(b) Did any other domestic proceedings constitute an effective remedy within the meaning of Article 13 in respect of his complaint under Article 3? In particular, as regards the temporary asylum procedure initiated by the applicant :

( i ) Has the applicant ’ s application for temporary asylum been accepted for examination by the UFMS of the Lipetsk Region? The parties are invited to inform the Court of the status of the temporary asylum proceedings and to submit any relevant documents.

(ii) If it has been accepted and examined, was the applicant ’ s complaint about the risk of ill-treatment in Uzbekistan subject to a close scrutiny by the authorities?

(iii) Did/does any specific provision of domestic legislation provide that a pending application for temporary asylum and a pending judicial review in respect of a refusal to grant such asylum each have “automatic suspensive effect” vis-à-vis a deportation order?

4. The parties are requested to specify whether any domestic provisions define a country/countries to which a person may, or should be removed, in case of the removal from the Russian territory.

5. The Government are requested to submit information on the current stage and, if relevant, outcome of the extradition proceedings.