Strasbourg condemns Russia for sending Rustam Muminov back to Uzbekistan to face torture
On 11 December the European Court of Human Rights issued its Chamber judgment in the case of Muminov v. Russia. It found a number of violations, listed below, though most crucially a violation of the prohibition against torture (Article 3 of the European Convention on Human Rights).
This was the first case where Russia went against the Court which had applied Rule 39 which halts any expulsion. It has not been the last.
MUMINOV v. RUSSIA (application no. 42502/06).
The Court held unanimously that there had been:
· a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of Mr Muminovs expulsion to Uzbekistan;
· a violation of Article 13 (right to an effective remedy) of the Convention on account of the authorities failure to afford Mr Muminov an effective and accessible remedy in relation to his complaint under Article 3;
· a violation of Article 5 § 4 (right to liberty and security) on account of the unavailability of any procedure for a judicial review of the lawfulness of Mr Muminovs detention pending extradition to Uzbekistan;
· a violation of Article 5 § 1 in relation to Mr Muminovs detention pending extradition to Uzbekistan; and,
· no violation of Article 34 (right of individual petition).
The Court held unanimously that the question of the application of Article 41 (just satisfaction) was not ready for decision. (The judgment is available only in English.)
1. Principal facts
The applicant, Rustam Muminov, is an Uzbek national who was born in 1965 and is serving a sentence of imprisonment in Uzbekistan. He arrived in Russia in July 2000.
The case concerned Mr Muminovs complaint in particular about his expulsion from Russia to Uzbekistan on 24 October 2006, even though he still had appeals pending in Russia with regard to the expulsion order and the refusal of his refugee application despite the fact that the European Court of Human Rights had indicated to the Russian Government that same day that the applicant should not be removed until further notice.
In May 2005 the Uzbek authorities issued an arrest warrant in respect of the applicant who they suspected of being involved in anti-constitutional activities. They notably accused him of membership of Hizb ut-Tahrir, a transnational Islamic organisation, which is banned in Russia, Germany and some Central Asian states.
On 2 February 2006 the applicant was arrested in Gryazi (Russia) and detained pending extradition. The detention order did not set any time-limit for the applicants detention. While in detention, the applicant made requests for refugee status and temporary asylum in Russia which were subsequently rejected.
In March 2006 the Uzbek authorities requested the applicants extradition. On 22 September 2006 the Prosecutor Generals Office of the Russian Federation rejected that extradition request.
The applicant was released and re-arrested on 29 September 2006; a judge refused to find him guilty of breaching the residence regulations and released him again. He was however apprehended again on 17 October 2006 in Moscow. After an interview, he was brought before a judge of Tverskoy District Court of Moscow, who found the applicant guilty of having resided in Russia in breach of the residence regulations. The judge imposed on him an administrative fine and ordered his administrative expulsion from Russia. The applicant was placed in a detention centre for foreigners. On 19 October 2006 the applicants counsel lodged a statement of appeal against the expulsion order with the Moscow City Court. A hearing was scheduled for 26 October 2006.
On 24 October 2006, under Rule 39 of the Rules of Court (interim measures), the Court indicated to the Russian Government that the applicant should not be expelled until further notice. The Russian Government were notified at 5.17 p.m., Strasbourg time (7.17 p.m. Moscow time). According to the Government, the applicant was expelled to Uzbekistan at 7.20 p.m. (Moscow time) on 24 October 2006.
In November 2006 the Russian courts quashed the expulsion order of 17 October 2006 and, after the re-examination of the case, concluded that the applicant had not committed the administrative offence of breaching the residence regulations. The proceedings were ultimately discontinued.
On 15 January 2007 an Uzbek court convicted the applicant of unlawful actions against the constitutional order and participation in the activities of a proscribed organisation, and sentenced him to five years and six months imprisonment. Apart from that conviction, there are no other reliable news concerning the applicant.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 23 October 2006.
3. Summary of the judgment 1
Mr Muminov complained in particular about his expulsion from Russia to Uzbekistan. He relied on Articles 3 (prohibition of inhuman or degrading treatment), 13 (right to an effective remedy), 5 (right to liberty and security), 34 (right of individual petition) and Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens).
Decision of the Court
The Court first determined whether the applicants grievance received any reply at national level and concluded that that the national authorities had not made an adequate assessment of the risk of torture or ill-treatment if the applicant were expelled to Uzbekistan. The Court then noted that evidence from a number of objective sources demonstrated that ill-treatment of detainees had persisted in Uzbekistan. In 2002 the UN Special Rapporteur on Torture had described the practice of torture in police custody as “systematic” and “indiscriminate”. In 2006 no improvement had been reported. The same year the UN Secretary General had also drawn attention to the continuing problem of widespread mistreatment of prisoners and complained that inadequate measures had been taken to bring those responsible to justice. Moreover, no concrete evidence had been produced of any fundamental improvement in the protection against torture in Uzbekistan.
Mr Muminov had been persecuted on account of his alleged involvement in the activities of Hizb ut-Tahrir, which he had consistently denied. Given the materials submitted by the applicant and obtained by the Court, the Court considered that there were serious reasons to believe in the existence of the practice of persecution of members or supporters of that organisation, whose underlying aims appeared to be both religious and political. The evidence before the Court confirmed the existence of a persisting practice of torture, with a view to extracting self-incriminating confessions and to punishing those who were perceived by public authorities to be involved in religious or political activities contrary to State interests. It had been reported that evidence-gathering in such cases had relied on confessions extracted by unlawful means and that ill-treatment had continued to be used against inmates convicted on such charges.
The Court was therefore persuaded that the applicant faced a real risk of being subjected to ill-treatment in Uzbekistan. Accordingly, the applicants expulsion to Uzbekistan had been in violation of Article 3. The absence of any reliable information as to the situation of Mr Muminov after his expulsion to Uzbekistan, except for his conviction, remained a matter of grave concern for the Court.
The Court concluded that there had been a violation of Article 13 because the applicant had not been afforded an effective and accessible remedy in relation to his complaint under Article 3.
Article 5 § 4
The Government had been required, but had failed, to show the existence of a judicial remedy that had been sufficiently certain both in theory and in practice, failing which it lacked the requisite accessibility and effectiveness.
It followed that throughout the term of the applicants detention he had not had at his disposal any procedure for a judicial review of its lawfulness, in violation of Article 5 § 4.
Article 5 § 1
The Court referred to earlier judgments in which it had held that the procedure in Russia for ordering and extending detention with a view to extradition and setting time-limits for such detention had not been circumscribed by adequate safeguards against arbitrariness. Indeed, in the applicants case upon the expiry of the maximum initial detention period of two months, no extension had been granted by a court. In total, the applicant had spent over seven months in detention pending extradition. Thus, the national system had failed to protect the applicant from arbitrary detention, and his detention could not be considered “lawful”, in violation of Article 5 § 1.
The Court observed that the parties had disagreed as to whether the applicant had been expelled before or after the Russian authorities had learnt about a Rule 39 request pending before the Court or its decision to apply Rule 39, as well as about the actual time of his departure from Russia.
However, the Court found that there was an insufficient factual basis for it to conclude that the Russian Government had deliberately prevented the Court from taking its decision on the applicants Rule 39 request or notifying it of that decision in a timely manner, which would have been in breach of its obligation to cooperate with the Court in good faith. Consequently, there had been no violation of Article 34 of the Convention.
Article 1 of Protocol No. 7
The Court considered that in view of its findings under Articles 3 and 13, there was no need to examine the complaint separately under Article 1 of Protocol No. 7.
The Courts judgments are accessible on its Internet site (http://echr.coe.int).