Abdulkhakov v. Russia (no. 14743/11) [Articles 3,5 and 34- Rule ]

Friday, October 4, 2013

The case concerns the Russian authorities’ alleged secret transfer of an Uzbek national, detained in Russia with a view to his extradition to his country of origin, despite the European Court of Human Rights’s indication (under Rule 39 - interim measures) to the Russian Government that no extradition should take place until further notice. The applicant, Murodzhon Abdulkhakov, is an Uzbek national who was born in 1979 and is currently in hiding in Tajikistan. He arrived in Moscow in December 2009 and was immediately arrested with a view to his extradition to Uzbekistan where he was on a wanted list for involvement in extremist activities. He was released in June 2011 when the maximum detention period allowed under Russian law expired. In parallel, on 22 December 2009, Mr Abdulkhakov applied for refugee status in Russia, submitting that he was being persecuted in Uzbekistan for his religious beliefs and that he feared being tortured with the aim of obtaining a confession to offences he had not committed. The Federal Migration Service rejected his application in a decision which was eventually confirmed by the courts in December 2010. His application for temporary asylum, lodged in June 2011, was in initially rejected, but the migration service quashed that decision and remitted the application for fresh examination. The temporary asylum proceedings remain pending.He then alleges that he was abducted by a group of men in plain clothes in the centre of Moscow and, handcuffed and forced into a van, was taken to the airport and flown to Tajikstan where he was handed over to the Tajik police. He was then detained with a view to his extradition to Uzbekistan until his release in November 2011. He has been in hiding ever since. Relying on Articles 3 (prohibition of inhuman and degrading treatment), 13 (right to an effective remedy) and 34 (right of individual petition), he complains that his secret transfer to Tajikstan has put him at real risk of extradition to Uzbekistan where he would be exposed to the threat of torture and religious persecution and was in breach of the interim measure indicated by the Court not to extradite him. He also makes a number of complaints under Article 5 §§ 1 and 4 (right to liberty and security) about the unlawfulness and excessive length of his detention pending extradition in Russia, without effective judicial review.


The Court found:

-Regarding Article 3:
As to whether the applicant would face ill-treatment in Uzbekistan, the Court noted that in a number of previous cases it had found, with reference to reliable international material, that ill-treatment of detainees was widespread in Uzbekistan and that the practice of torture against those in police custody was being described as “systematic” and “indiscriminate”. Moreover, it had found that people accused of criminal offences in relation to their involvement with prohibited religious organisations in Uzbekistan were at an increased risk of ill-treatment. The Court was persuaded that Mr Abdulkhakov would face a serious risk of being subjected to torture or inhuman or degrading treatment in Uzbekistan. His extradition to Uzbekistan, in the event of his return to Russia, would therefore give rise to a violation of Article 3. Mr Abdulkhakov’s transfer to Tajikistan, which was not a party to the Convention, had removed him from the protection guaranteed by the Convention. In such circumstances, the Russian authorities should have reviewed Tajikistan’s legislation and practice relating to the evaluation of the risks of ill-treatment faced by asylum seekers with particular scrutiny. However, there was no evidence that, before removing him to Tajikistan, the Russian authorities made any assessment of whether there existed legal guarantees against the removal of people facing a risk of ill-treatment and how the Tajik authorities applied them in practice. The Court found it particularly striking that his transfer to Tajikistan had been carried out in secret and outside any legal framework capable of providing safeguards against his removal to Uzbekistan without an evaluation of the risks of his ill-treatment there. Finally, the Court observed that any extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, was contrary to the rule of law and the values protected by the Convention. Mr Abdulkhakov’s transfer to Tajikistan had therefore been in violation of Article 3.

-Regarding Article 34:
The Court considered that by transferring the applicant to Tajikistan, Russia had failed to comply with the interim measure, in breach of its obligation under Article 34 not to hinder the effective exercise of an applicant’s right to apply to the Court.

-Regarding Article 5:

The Court moreover found a violation of Article 5 § 1 in respect of Mr Abdulkhakov’s detention from 9 December 2009 to 8 February 2010. During the period from 9 to 30 December 2009, until the Russian authorities received the extradition request from Uzbekistan, his detention had not been covered by Russian law, as it did not contain any specific legal provision for ordering detention pending the receipt of an extradition request. Even after the receipt of that request, his detention had been based on a provision of the Russian Code of Criminal Procedure which, due to a lack of clear procedural rules, was neither precise nor foreseeable in its application. The Court found no violation of Article 5 § 1 in respect of the remaining period of his detention nor on account of the overall length of his detention. Furthermore, the Court found two violations of Article 5 § 4 on account of the length of the proceedings concerning Mr Abdulkhakov’s appeals against two of the detention orders, 82 days and 35 days, respectively, and on account of his inability to obtain a review of his detention between 8 December 2010 and 9 June 2011.

For the full text of the judgment please visit: ECtHR: Abdulkhakov v. Russia (no. 14743/11)

For the full text of the press release on the judgment, please visit: ECtHR: Russia’s secret transfer of Uzbek refugee to Tajikistan violated the Convention

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Assessment of facts and circumstances
Individual assessment
Obligation/Duty to cooperate
Inhuman or degrading treatment or punishment
Effective access to procedures
European Union