CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 octobre 2022

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AND Z.K. v. RUSSIA (Application no. 12767/20)         JUDGMENT   STRASBOURG 11 October 2022       This judgment is final but it may be subject to editorial revision.   In the case of I.U. and Z.K. v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Darian Pavli , President,   Andreas Zünd ,   Frédéric Krenc , judges, and Olga Chernishova, Deputy Section Registrar , Having regard to: the application against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table, (“the applicants”) on 10 March 2020; the decision not to have the applicants’ names disclosed; the decision to give notice of the complaints under Article 3 of the Convention to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application; the decision to give priority (Rule 41 of the Rules of Court) to the application; the decision to indicate interim measures to the respondent Government under Rule 39 of the Rules of Court; the parties’ observations; Having deliberated in private on 20 September 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns risk of treatment contrary to Article 3 of the Convention in the event of the applicants’ removal to Uzbekistan. 2.     The list of the applicants and relevant details are set out in the appendix. 3.     In 2014-2016 the applicants were charged with religious extremist crimes in Uzbekistan. They were apprehended in Russia later on, and the Russian authorities adopted final decisions to extradite the applicants. 4.     The Court, having examined the applications lodged under Article 34 of the Convention, has found, in respect of both applicants, that there would be a violation of Article 3 of the Convention in the event of their removal to Uzbekistan (see I.U. v. Russia , no. 48917/15, 10 January 2017, and S.S. and Others v. Russia , nos. 2236/16 and 3 others, 25 June 2019). 5.     Following the above judgements of the Court, extradition proceedings were reopened on the domestic level, and on different dates in 2020 the Supreme Court of Russia upheld the extradition orders, referring to the assurances given by the Uzbek authorities and to the improvements of the situation in Uzbekistan reflected in the reports cited in the paragraph   9 below. 6.     On 10 March 2020 the Court decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be removed from Russia for the duration of the proceedings before it. 7.     On 27 June 2022 the applicant Z.K. was extradited to Uzbekistan. On 5 July 2022, the applicant’s representative informed the Court that the applicant was held in pre-trial detention in Samarkand and wished to pursue his application with the Court. Contact was maintained through the applicant’s local lawyer, I.K. Reports on Uzbekistan 8 .     The relevant information on situation in Uzbekistan was most recently summarised in A.K. and Others v. Russia [Committee], nos. 38042/18 and 2   others, §§ 19-20, 18 May 2021. It was noted with reference to “Uzbekistan 2019 World Report” issued by Human Rights Watch that certain promising steps had been taken to reform the country’s human rights record, but that many reforms had yet to be implemented. 9 .     Similar remarks, including as regards the closure of Jaslyk prison – qualified as a symbol of torture and imprisonment of government critics – were also made in the “Uzbekistan 2020 World Report” issued by Human Rights Watch, which on the other hand highlighted that thousands of peaceful religious believers or perceived critics were still imprisoned on false charges. The Concluding observations on the fifth periodic report of Uzbekistan published on 14 January 2020 by the UN Committee against Torture (UNCAT) pointed to initiatives to revise legislation, amend policies, programmes and administrative measures, but remained deeply concerned at reports that torture and ill-treatment continue to be routinely committed by or with the consent of the law enforcement, investigative and prison officials, principally for the purpose of extracting confessions or information to be used in criminal proceedings (§§   3-5 and 7 of this UNCAT report). 10 .     In the 2021 report on Uzbekistan published by the Amnesty International 2021 and in the “Uzbekistan 2022 World Report” issued by Human Rights Watch, it was noted that torture and ill-treatment remain common in places of detention, with human rights groups and the media reporting on credible allegations of torture and on the presence of up to 100   people in the “notoriously abusive” Jaslyk prison officially closed by the authorities. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 11.     The measures taken by a respondent State to remedy a violation found by the Court which raise a new issue undecided by the original judgment fall within the Court’s jurisdiction and, as such, form the subject of a new application that may be dealt with by the Court (see Liu v.   Russia (no. 2), no.   29157/09, §§   59-68, 26 July 2011, and Emre v. Switzerland (no. 2), no.   5056/10, §§ 38-44, 11 October 2011). 12.     Considering that applicants’ cases were reopened on the domestic level following the judgements adopted by the Court and that the Supreme Court of Russia proceeded to carry out a new assessment, its judgements constituted new issues. 13.     The Court cannot accept the Government’s objection that the applicant I.U. had not challenged his deportation order before the appellate court and, therefore, had failed to exhaust domestic remedies. In his observations the applicant submitted that his appeal against the deportation order had been dismissed by Chelyabinsk Regional Court on 18 January 2021 – without, however, providing a copy of the judgement – and the Government did not contest this fact in their further observations. Moreover, the applicant is under a risk of removal under a final and enforceable extradition order in respect of which no such objection has been raised by the Government. 14.     The complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 15.     The general principles concerning application of Article 3 have been summarised in F.G. v. Sweden [GC], no. 43611/11, §§ 111-27, ECHR 2016, and in the context of removals from Russia to Uzbekistan in Mamazhonov v.   Russia , no. 17239/13, §§ 127-37, 23 October 2014. 16.     The Court has previously established that individuals against whom the Uzbek authorities brought charges of religiously or politically motivated crimes constituted a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to Uzbekistan (see Mamazhonov , cited above, §§ 138-65, and A.K. and Others v.   Russia , cited above, §§ 45-46). It has also concluded that the applicants, considering the charges brought against them by Uzbek authorities, belonged to the abovementioned vulnerable group (see I.U. v.   Russia , §   27; and S.S. and Others v. Russia , § 18, both cited above). Since the domestic proceedings before the Supreme Court were reopened following the Court’s judgements, it can be concluded that the Supreme Court was presented with substantial grounds for believing that the applicants faced a real risk of ill-treatment in the event of their removal to Uzbekistan. 17.     There is no indication that, when upholding the extradition order, the Supreme Court was provided with assurances other than initial ones that had been found to be unsatisfactory by the Court with reference to its case-law (see I.U. v. Russia , § 31, and S.S. and Others v. Russia , §   22, both cited above). As regards the signs of improvement mentioned by the relevant reports which had already caught the Court’s attention (see paragraph 8 above), it does not appear that the Supreme Court conducted in-depth analysis of the situation in the destination country, in light of the full content of the reports they relied on, the Court’s abundant case law concerning the treatment of persons accused of religiously motivated crimes, and the judgements in the applicants’ cases, issued not long before the Supreme Court’s judgement. Therefore, the Supreme Court of Russia failed to conduct rigorous assessment of the risk of the applicants’ ill-treatment in Uzbekistan. 18.     Compelled to independently examine whether the applicants were exposed to such a risk (Z.K.), or would be exposed to it in the event of the removal (I.U.), the Court recalls its earlier findings that certain indications of improvement of the situation in Uzbekistan were, however, not sufficient for a conclusion that the persons prosecuted for religiously motivated crimes no longer run such a risk (see Yusupov v. Russia , no. 30227/18, § 50, 1 December 2020, and A.K. and Others v.   Russia, cited above, § 45). More up-to-date independent international sources mentioned in the paragraph 10 above do not disclose any significant positive changes that may warrant the Court departing from its earlier findings on the matter. 19.     Therefore, the Court finds that there has been a violation of Article   3 of the Convention on account of enforcement of the extradition order in respect of Z.K. and there would be a violation of Article 3 of the Convention if the applicant I.U. was to be returned to Uzbekistan, by means of extradition, deportation or any other procedure. RULE 39 OF THE RULES OF COURT 20.     The Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final. Accordingly, the measures indicated to the Government under Rule 39 come to an end. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.     The applicants claimed 5,000 euros (EUR) each in respect of non ‑ pecuniary damage and EUR 3,825 in respect of costs and expenses incurred before the domestic courts and the Court by their representatives, Ms Trenina, Mr Zharinov and Ms   Davidyan. 22.     Given the above findings of violation of the applicant Z.K.’s rights under Article 3 of the Convention, the Court, making its assessment on an equitable basis, awards the applicant EUR 5,000 plus any tax that may be chargeable on these amounts. The Court considers it appropriate that the payment should be made to any of the applicants’ representatives before the Court, Mr Kirill Zharinov, Ms Eleonora Davidyan or Ms Daria Trenina, for subsequent transmission to the applicant (see Savriddin Dzhurayev v. Russia , no. 71386/10, § 251, ECHR 2013 (extracts). 23.     In respect of the applicant I.U. the Court considers that finding that there would be a violation of Article   3 of the Convention if he was to be returned to Uzbekistan constitutes sufficient just satisfaction in respect of any non‑pecuniary damage suffered by the applicant (see, to a similar effect, J.K. and Others v. Sweden [GC], no. 59166/12, § 127, ECHR 2016). 24.     As to the costs and expenses, the applicant Z.K. submitted copies of legal services agreements in support of his claims. The Government claimed that the contingency fees agreements are not enforceable under the domestic law. The Court notes that the applicant Z.K. objected, with reference to new amendments to the domestic law effective since March 2020, that the contingency fees agreements are in fact enforceable, and the Government did not contest this submission despite having the opportunity. 25.     Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,500 to the applicant Z.K., covering costs under all heads. The payment should be made to any of the applicants’ representatives before the Court, Mr Kirill Zharinov, Ms Eleonora Davidyan or Ms Daria Trenina. 26.     The Court further rejects the claims for costs and expenses of the applicant I.U. since no copies of any legal services agreements concluded between the representatives and the applicant were submitted and, therefore, there is no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by him (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-73, 28 November 2017). FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides the complaints under Article 3 of the Convention admissible; Holds that there has been a violation of Article 3 of the Convention in respect of the applicant Z.K.; Holds that there would be a violation of Article 3 of the Convention in respect of the applicant I.U. if he was to be returned to Uzbekistan; Holds that the finding that there would be a violation of Article 3 of the Convention constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage sustained by the applicant I.U.; Holds (a)   that the State is to pay, within three months, the applicant Z.K. the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 5,000 plus any tax that may be chargeable in respect of non-pecuniary damage, the payment of which is to be made to any of the applicants’ representatives before the Court, Mr Kirill Zharinov, Ms Eleonora Davidyan or Ms Daria Trenina, for subsequent transmission to the applicant; (ii)   EUR 1,500 plus any tax that may be chargeable in respect of costs and expenses, the payment of which is to be made to any of the applicants’ representatives before the Court, Mr Kirill Zharinov, Ms Eleonora Davidyan or Ms Daria Trenina; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 11 October 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Olga Chernishova   Darian Pavli   Deputy Registrar   President APPENDIX   Application no. Case name Lodged on Represented by Applicant Year of Birth Nationality   Criminal proceedings in the country of origin Removal proceedings Refugee status and temporary asylum proceedings   12767/20   I.U. and Z.K. v. Russia   10 March 2020   Daria Trenina, Kirill Zharinov Eleonora Davidyan I.U.   1988   Uzbekistan                       5 September 2014 – the applicant was charged in Uzbekistan with participation in the extremist religious movement Hizb ut-Tahrir al Islami and activities threatening the constitutional order.   Extradition proceedings 13 October 2015 – extradition order issued by Russian authorities was upheld by the final judgment of the Supreme Court of the Russian Federation. 10 January 2017 – the Court delivered the judgement I.U. v. Russia , cited above (conditional violation of Article 3 of the Convention). 22 January 2020 – the Supreme Court of Russia reopened the extradition proceedings and upheld the extradition order.   Deportation proceedings 26 December 2019 – after the applicant’s criminal conviction for organising illegal presence of aliens on the territory of Russia, he was declared undesirable by the Ministry of Justice of the Russian Federation. 18 January 2021 – after serving the prison sentence, the deportation order issued with respect to the applicant on 27 December 2019 was upheld by the final decision of Chelyabinsk Regional Court.   Refugee status and temporary asylum proceedings 18 May 2016 – refusal to grant the applicant refugee status was upheld by the final judgment of the Moscow City Court. Z.K.   1995   Uzbekistan 9 March 2016 – the applicant was charged in Uzbekistan with joining ISIL terrorist organisation and recruiting citizens to fight on the side of ISIL and calling to overthrow the constitutional order of the Republic of Uzbekistan.   Extradition proceedings 10 October 2017 – extradition order issued by Russian authorities was upheld by the final judgment of the Supreme Court of the Russian Federation. 25 June 2019 – the Court delivered the judgement S.S. and Others v. Russia , cited above (conditional violation of Article 3 of the Convention). 19 February 2020 – the Supreme Court of Russia reopened the extradition proceedings and upheld the extradition order. 27 June 2022 – the extradition order was enforced.   Refugee status and temporary asylum proceedings 14 February 2018 – refusal to grant the applicant refugee status was upheld by the final judgment of the Moscow City Court. 28 February 2018 – refusal to grant the applicant temporary asylum was upheld by the final judgment of the Moscow City Court.