CEDH · CASELAW;CLIN;ENG — 25 avril 2013

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Russia - 71386/10 Judgment 25.4.2013 [Section I] Article 34 Hinder the exercise of the right of petition Forcible transfer of person to the Tajikistan with real risk of ill-treatment and circumvention of the interim measures ordered by the Court: violation   Article 46 Article 46-2 Execution of judgment Measures of a general character Respondent State required without delay to ensure the lawfulness of State action in extradition and expulsion cases and the effective protection of potential victims   Execution of judgment Individual measures Respondent State required to take tangible remedial measures to protect the applicant against the existing risks to his life and health in a foreign jurisdiction   Facts – The applicant fled his native Tajikistan fearing persecution because of his religious activities. He travelled to Russia, where he was later granted temporary asylum. In the interim, the Tajik authorities had requested his extradition on charges of criminal conspiracy. The Russian authorities acceded to that request, but the applicant’s extradition was postponed in accordance with an interim measure issued by the European Court under Rule 39 of its Rules of Court. However, on the evening of 31   October 2011 the applicant was kidnapped by unidentified persons in Moscow and detained for one to two days before being forcibly taken to the airport and put on a flight to Tajikistan, where he was immediately placed in detention. Law – Article 3: The competent authorities had been informed by the applicant’s representative and the Russian Commissioner for Human Rights of the real and immediate risk of torture and ill-treatment to which the applicant was exposed. Indeed, the circumstances in which the applicant was abducted and the background to his abduction should have left no doubt about the existence of that risk and should have prompted the authorities to take preventive operational measures to protect him against unlawful acts by other individuals. The Government had nonetheless failed to inform the Court of any timely preventive measure taken to avert that risk. The applicant’s allegations of what had happened to him were largely supported by the unrebutted presumption that had been upheld in the cases of Iskandarov and Abdulkhakov v. Russia in which the Court had found that the forcible transfer of the applicants in those cases to Tajikistan could not have happened without the knowledge and either passive or active involvement of the Russian authorities. The Russian Government had shown nothing to rebut that presumption in the present case. Indeed, the authorities had manifestly failed to elucidate the circumstances of the incident through an effective investigation at the domestic level. Accordingly, the respondent State was responsible under the Convention for the applicant’s forcible transfer to Tajikistan on account of State agents’ involvement in that operation. The actions of the State agents were characterised by manifest arbitrariness and abuse of power with the aim of circumventing both a lawful decision to grant the applicant temporary asylum in Russia and steps officially taken by the Government to prevent the applicant’s extradition in accordance with an interim measure decided by the Court. The operation was conducted “outside the normal legal system” and, “by its deliberate circumvention of due process, [was] anathema to the rule of law and the values protected by the Convention”. Consequently there had been a violation of Article 3 on account of the authorities’ failure to protect the applicant against forcible transfer to Tajikistan, where he faced a real and imminent risk of torture and ill-treatment, the lack of effective investigation into the incident and the involvement, either passive or active, of State agents in the operation. Conclusion : violation (unanimously). Article 34: While the interim measure requested by the Court was still in force the applicant had been forcibly transferred to Tajikistan by aircraft in a special operation in which State agents were found to have been involved. It was inconceivable that national authorities could be allowed to circumvent an interim measure such as the one indicated in the present case by using another domestic procedure for the applicant’s removal to the country of destination or, even more alarmingly, by allowing him to be arbitrarily removed there in a manifestly unlawful manner. As a result of the respondent State’s disregard of the interim measure the applicant had been exposed to a real risk of ill-treatment in Tajikistan and the Court had been prevented from securing to him the practical and effective benefit of his rights under Article   3. Conclusion : violation (unanimously). The Court also found a violation of Article 5 §   4 on account of long delays in examining the applicant’s appeals against two orders for his detention in 2010. Article 41: EUR 30,000 in respect of non-pecuniary damage. Article 46: The respondent State was required to take tangible remedial measures to protect the applicant, to whom it had granted temporary asylum, against the existing risks to his life and health in a foreign jurisdiction. The respondent State was also required to carry out an effective investigation into the incident at issue. In addition, general measures were needed to prevent further similar violations. The Court had been confronted with repeated incidents of this kind since its judgment in Iskandarov . Such incidents constituted a flagrant disregard for the rule of law and suggested that certain State authorities had developed a practice in breach of their obligations under both Russian law and the Convention. Decisive general measures still remained to be taken including further improving the domestic remedies in extradition and expulsion cases, and ensuring the lawfulness of any State action in this area, the effective protection of potential victims in line with interim measures issued by the Court and the effective investigation of every breach of such measures or similar unlawful acts. The State’s obligations under the present judgment required the resolution of this recurrent problem without delay. (See Iskandarov v. Russia , no.   17185/05 , 23   September 2010, Information Note no.   133; and Abdulkhakov v. Russia , no.   14743/11 , 2   October 2012, Information Note no.   156)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes