Information Note on the Court’s case-law 167

October 2013

Nizomkhon Dzhurayev v. Russia - 31890/11

Judgment 3.10.2013 [Section I]

Article 3

Expulsion

Positive obligations

Failure by Russian authorities to protect Tajik national in their custody from forced repatriation to Tajikistan despite risk of proscribed treatment: violation

Article 34

Hinder the exercise of the right of application

Failure by Russian autho rities to protect Tajik national in their custody from forcible repatriation to Tajikistan in breach of interim measure issued by European Court: failure to comply with Article 34

Article 38

Obligation to furnish all necessary facilities

Failure to comply with trequests for information and documents in case concerning forcible repatriation to country where applicant was at risk of ill-treatment: failure to comply with Article 38

Facts – The applicant was a Tajik national and prominent businessman. In 2007 he fled Tajikistan fearing for his life. He eventually arrived in Russia, where his partner lived, in August 2010. Two weeks later he was arrested and detained by the Russian authorit ies pursuant to an international warrant issued by the Tajik authorities, who sought his extradition on criminal charges. The extradition request was granted in February 2011 and upheld by the Russian courts, but was not executed as in the meantime the Eur opean Court had issued an interim measure under Rule 39 of its Rules directing that he should not be returned to Tajikistan. In January 2012 the Registrar of the Court wrote to the Russian Government to express his profound concern at repeated allegations that applicants had been secretly transferred from Russia to Tajikistan in breach of interim measures and inviting the Government to provide the Court with exhaustive inform ation about any follow-up to these incidents.

On 29 March 2012 the applicant was released from the remand centre where he was being held. Neither his lawyer nor his next-of-kin were notified by the authorities of the decision to release him, although the l awyer said she was alerted to the applicant’s imminent departure by a phone call from one of his cellmates. However, by the time she reached the remand centre the applicant had disappeared without trace. On 7 April 2012 Tajik State television broadcast a v ideo of the applicant reading out a statement saying that immediately after his release from the remand centre he had decided to return to Tajikistan, as he was feeling guilty and was worried about his children and elderly mother. In the statement, he said he had borrowed the equivalent of EUR 370 from compatriots at a local market and travelled overland to Tajikistan, before turning himself in.

Law – Article 3: It was beyond reasonable doubt that the applicant had been secretly and unlawfully transferred from Russia to Tajikistan by unknown persons in the wake of his release from detention in Russia on 29 March 2012. His forcible return to Tajikista n had exposed him to a real risk of treatment contrary to Article 3.

As to regards the responsibility for his transfer, irrespective of whether and by what means Russian State agents had been involved in the impugned operation, the respondent State was res ponsible for a breach of its positive obligations under Article 3.

It was indisputable that the Russian authorities had failed to protect the applicant against the real and immediate risk of forcible transfer to Tajikistan and ill-treatment in that country . It was beyond doubt that they were or should have been aware of such a risk when they decided to release him. The applicant’s background, the Tajik authorities’ behaviour in his case, and not least the recurrent similar incidents of unlawful transfers fr om Russia to Tajikistan to which the Russian authorities had been insistently alerted by both the Court and the Council of Europe’s Committee of Ministers were worrying enough to trigger the authorities’ special vigilance and require appropriate measures o f protection corresponding to that special situation. The authorities had nonetheless failed to take any measure to protect the applicant at the critical moment of his unexpected release. Even more striking was their deliberate failure to inform the applic ant’s representative of the planned release in due time, so depriving the applicant of any chance of being protected by his representative or next-of-kin. Nor had the competent authorities taken any measures to protect the applicant after receiving insiste nt official requests from the applicant’s representatives immediately after his disappearance. As a result, the applicant had been withdrawn from Russian jurisdiction and the Tajik authorities’ aim of having him extradited to Tajikistan had been achieved i n a manifestly unlawful manner.

The Russian authorities had also failed to conduct an effective investigation into the applicant’s disappearance and unlawful transfer. They had repeatedly refused to open a criminal investigation into the case for absence o f corpus delicti and the only investigative measure the Court had been informed of was a request, sent nine months after the impugned events, to check the information about the illegal crossing of the Russian State border. Indeed, the authorities had given every appearance of wanting to withhold valuable evidence.

The Russian Federation had thus breached its positive obligations to protect the applicant against a real and immediate risk of torture and ill-treatment in Tajikistan and to conduct an effective domestic investigation into his unlawful and forcible transfer to that country. In the Court’s view, Russia’s compliance with those obligations had been of particular importance in the applicant’s case, as it would have disproved an egregious situation tha t tended to reveal a practice of deliberate circumvention of the domestic extradition procedure and the interim measures issued by the Court. The continuation of such incidents in the respondent State constituted a flagrant disregard for the rule of law an d entailed the most serious implications for the Russian domestic legal order, the effectiveness of the Convention system and the authority of the Court.

Conclusion : violation (unanimously).

(See Iskandarov v. Russia , 17185/05, 23 September 2010, Information Note 133 ; Abdulkhakov v. Russia , 14743/11, 2 October 2012, Information Note 156 ; and Savridd in Dzhurayev v. Russia , 71386/10, 25 April 2013, Information Note 162 )

Article 34: On 26 May 2011 the Court had asked the respondent Government not to extradite the applicant to Tajikistan until further notice. Notwithstanding that request, the applicant was forcibly repatriated to Tajikistan at some point between 29 March and 7 April 2012.

The Court had already found the Russian authorities responsible for failing to protect t he applicant against his exposure to a real and immediate risk of torture and ill-treatment in Tajikistan, which had made possible his forced repatriation. Accordingly, responsibility for the breach of the interim measure also lay with the Russian authorit ies.

Conclusion : failure to comply with Article 34 (unanimously).

Article 38: The applicant’s case involved controversial factual questions which could only be elucidated through the genuine cooperation of the respondent Government in line with Article 38 of the Convention. The Court had put a number of detailed factual questions and requested the relevant domestic documents, but the Government had submitted only cursory answers referring to pending inquiries and containing virtually no element of substance . They had also failed, without giving any reasons, to provide the Court with any of the domestic decisions refusing to open a criminal investigation or quashing such decisions by a higher authority.

The Government’s failure to cooperate, viewed in the con text of their evasive answers to specific factual questions and coupled with severe investigative shortcomings at the domestic level, highlighted the authorities’ unwillingness to uncover the truth regarding the circumstances of the case.

Conclusion : failu re to comply with Article 38 (unanimously).

The Court also found, unanimously, a violation of Article 5 § 4 of the Convention on account of delays in hearing an appeal by the applicant against detention.

Article 41: EUR 30,000 in respect of non-pecuniary d amage to be held in trust by the applicant’s representatives.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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