003-4338633-5201894

issued by the Registrar of the Court   ECHR 132 (2013)   25.04.2013   Russia responsible for secret unlawful transfer to Tajikistan of a   man protected by temporary asylum and interim measures   In today’s Chamber judgment in the case of Savriddin Dzhurayev v. Russia   (application no. 71386/10),1 the European Court of Human Rights 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 the authorities’ failure to protect   Mr Dzhurayev against the real and imminent risk of torture and ill-treatment by   preventing his forcible transfer from Moscow to Tajikistan, the persistent refusals to   conduct an effective investigation into the incident, and the involvement of State officials   in that operation;   a violation of Article 34 (right of individual petition) on account of Russia’s failure   to comply with an interim measure issued by the European Court of Human Rights that   no extradition should take place pending the Court’s proceedings; and,   a violation of Article 5 § 4 (right to have lawfulness of detention decided   speedily by a court) on account of delays in examining Mr Dzhurayev’s appeals against   two orders for his detention.   The case concerned the abduction and secret transfer of a man, whose extradition had   been sought by the Tajik authorities and who had been granted temporary asylum in   Russia, to his home country, Tajikistan, where he was subsequently prosecuted and   sentenced to imprisonment for offences against national security.   The Court held in particular that Mr Dzhurayev faced a real risk of ill-treatment in   Tajikistan and that he could not have been forcibly transferred there without the   involvement of Russian State officials, whose actions had been tainted by manifest   arbitrariness and abuse of power. The Court concluded that, like the so-called   “extraordinary renditions”, the operation involving State agents in Mr Dzhurayev’s case   had been 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.   Under Article 46 (binding force and execution of judgments) of the Convention,   the Court considered the pattern of similar repeated incidents in the recent past which   suggests that certain State authorities have developed a practice in breach of their   obligations under the Russian law and the Convention. In view of the situation and the   nature of the violations found, the Court indicated to the Russian Government remedial   measures in respect of Mr Dzhurayev and general measures to prevent new similar   violations, thus assisting Russia and the Committee of Ministers of the Council of Europe   with a view to implementation of the judgment.   Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month   period following its delivery, any party may request that the case be referred to the Grand Chamber of the   Court. If such a request is made, a panel of five judges considers whether the case deserves further   examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral   request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for   supervision of its execution. Further information about the execution process can be found here:   www.coe.int/t/dghl/monitoring/execution   Principal facts   The applicant, Savriddin Dzhurayev, born in 1985, is a national of Tajikstan, where he is   currently serving a prison sentence.   Mr Dzhurayev arrived in Russia in June 2006, having fled Tajikistan, as he feared   prosecution on the grounds of his religious activities after a Quran teacher at his mosque   had been arrested and had died in detention. In November 2006 criminal proceedings   were brought against Mr Dzhurayev in Tajikistan on charges of his alleged involvement   in “the Islamic Movement of Uzbekistan” (IMU) and an armed attack on three members   of the regional parliament.   In November 2009 Mr Dzhurayev was arrested in Moscow by the Russian police pursuant   to an international search warrant issued by the Tajik authorities. He was placed in   detention pending extradition. The courts subsequently extended his detention on a   number of occasions, and his appeals against the detention orders were rejected. In   June 2010, the Russian Deputy Prosecutor General issued an order for his extradition. Mr   Dzhurayev’s appeals against that order – stating that the Tajik authorities would subject   him to torture to make him confess to a crime he had not committed - were rejected by   the Moscow City Court and the Russian Supreme Court in 2010, referring to written   guarantees by the Tajik prosecutor to the effect that Mr Dzhurayev would not be   subjected to ill-treatment. However, the extradition order was not enforced, pursuant to   an interim measure indicated by the European Court of Human Rights (under Rule 39 of   its Rules of Court) on 7 December 2010 that no extradition should take place until   further notice. In May 2011 Mr Dzhurayev was released under a personal guarantee from   his lawyer.   In parallel, in December 2009, Mr Dzhurayev applied for refugee status in Russia,   submitting that he was being persecuted in Tajikistan on the grounds of his religious   beliefs and that he would be subjected to torture if extradited there. The Russian Federal   Migration Service (FMS) rejected his application in a decision eventually upheld by the   courts in December 2010. In September 2011, the FMS granted Mr Dzhurayev   temporary asylum in Russia.   According to Mr Dzhurayev, on 31 October 2011, he was abducted in Moscow by a group   of men, who detained him in a mini-van for one or two days and tortured him, then took   him to the airport, from where he was flown to Khujand (Tajikistan) without going   through the normal border formalities or security checks. Upon arrival, he was handed   over to the Tajik authorities. According to submissions from his father, Mr Dzhurayev   was then detained at a police station, where he was severely ill-treated and pressured to   confess to crimes he had not committed. In April 2012, a regional court in Tajikistan   found Mr Dzhurayev guilty of a number of offences and sentenced him to 26 years’   imprisonment.   Once informed of the abduction, Mr Dzhurayev’s lawyer immediately contacted a number   of Russian officials, including the head of the Moscow police and the Prosecutor General,   asking them to protect Mr Dzhurayev from the risk of a forcible transfer to Tajikistan. An   official request to that effect was also addressed by the Russian Commissioner for   Human Rights to the head of the Moscow police.   The district investigators in charge conducted a pre-investigation inquiry into the events   but refused to open a criminal investigation on at least four occasions, noting in   particular that Mr Dzhurayev might have staged his abduction in order to escape criminal   liability for offences committed in Tajikistan. Those decisions were issued time and again   in identical terms after having been quashed by the senior authority. According to the   Russian Government’s latest submission to the Court, the inquiry was still pending and it   had so far found – the Government referred to the official information received from the   Prosecutor General of Tajikistan to this effect – that Mr Dzhurayev had illegally crossed   the Russian State border, had “voluntarily surrendered” to the Tajik authorities on 3   November 2011 and had been placed in detention.   Complaints, procedure and composition of the Court   Having initially complained that his extradition would put him at risk of ill-treatment in   Tajikistan, Mr Dzhurayev later added the complaint that his abduction and illegal transfer   to Tajikistan could only have been possible with either passive or active involvement of   the Russian authorities and that the authorities had failed to conduct an effective   investigation into the incident. He relied on Article 3 (prohibition of inhuman or   degrading treatment) and Article 13 (right to an effective remedy). He also complained   of a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a   court) on account of delays in the examination of his appeals against several of the   detention orders. Lastly, Mr Dzhurayev alleged that the authorities had disregarded the   interim measure issued by the Court, in breach of Article 34 (right of individual petition).   The application was lodged with the European Court of Human Rights on 6 December   2010.   Judgment was given by a Chamber of seven judges, composed as follows:   Isabelle Berro-Lefèvre (Monaco), President,   Khanlar Hajiyev (Azerbaijan),   Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”),   Julia Laffranque (Estonia),   Erik Møse (Norway),   Ksenija Turković (Croatia),   Dmitry Dedov (Russia),   and also Søren Nielsen, Section Registrar.   Decision of the Court   As regards the facts of the case, the Court found it established beyond reasonable doubt   that Mr Dzhurayev had been kidnapped by unidentified persons in Moscow on 31 October   2011, had been detained by his kidnappers in Moscow for one to two days, then forcibly   taken by them to an airport and put on board a flight to Tajikistan, where he had   immediately been placed in detention by the Tajik authorities.   Mr Dzhurayev had provided a detailed, specific and consistent account of the events that   had taken place from 31 October 2011 onwards, not only in his submissions to the   Court, but also in his statement in a public court hearing in Tajikistan. By contrast, the   Russian Government had only given evasive answers to the Court’s questions,   essentially limited to denials of the authorities’ knowledge about, and their responsibility   for, Mr Dzhurayev’s fate. It was undisputed between the parties that on 3 November   at the latest he had been placed in detention in Tajikistan – having previously been   granted temporary asylum in Russia following his insistent attempts to avoid returning to   his home country. While the Russian Government had referred to the version of the   events presented by the Tajik authorities, they had failed to support it with any   evidence. In particular, they had not explained how and when Mr Dzhurayev could have   managed on his own to make the trip from Moscow to Tajikistan across various State   borders without his passport or any official record of crossing the Russian border.   Article 3   As regards Mr Dzhurayev’s allegation that he faced a risk of ill-treatment on return to   Tajikistan, the Court found that the Russian authorities had not carried out an   independent and rigorous scrutiny of that claim. While admitting to the file reports about   the human rights situation in Tajikistan, the Russian courts had not made any use of   them and had summarily dismissed all arguments related to those reports. Moreover,   the courts had unconditionally relied on the assurances by the prosecutor of Tajikistan to   the effect that Mr Dzhurayev would not be ill-treated, without examining whether those   assurances provided any guarantees in practice.   The Court noted the consistent reports by the UN and NGOs for the past few years about   the widespread, systematic use of torture by law-enforcement authorities of Tajikistan   and the impunity of State officials. Referring to several recent cases concerning   extradition to Tajikistan, the Court did not find any tangible element that would alleviate   those concerns. There was nothing in the Russian Government’s submissions to refute   the recent reports or otherwise to attest of any perceptible improvement of the situation   in Tajikistan.   While the mere reference to a general problem concerning observance of human rights   in a particular country could not alone serve as a basis for refusing extradition, the Court   noted that one of the main charges against Mr Dzhurayev had directly related to his   involvement in the IMU, which the Tajik authorities regarded as a terrorist organisation.   Those circumstances, in the context of harassment of non-traditional religious groups by   the Tajik authorities, had heightened the risk of his being subjected to ill-treatment in   detention with a view to extracting confessions relating to his religious activities. Mr   Dzhurayev’s forcible return to Tajikistan and the following events had confirmed that his   fears had been well founded. The Court therefore concluded that his forcible return to   Tajikistan had exposed him to a real risk of treatment in breach of Article 3.   Immediately after having been informed of Mr Dzhurayev’s abduction, his representative   had asked the relevant Russian State authorities to protect him from the ensuing risk of   his forcible transfer to Tajikistan. However, the Russian Government had not informed   the Court of any timely preventive measure taken by the police or any other authority to   avert that risk, which led the Court to conclude that no such measure had been taken by   any authority. That failure amounted to a violation of the State’s positive obligation to   protect Mr Dzhurayev from treatment contrary to Article 3.   The investigation of Mr Dzhurayev’s abduction had been plagued by numerous flaws,   which were manifestly inconsistent with Russia’s obligations under Article 3. The news of   the abduction should have triggered the authorities’ utmost attention in view of his   allegation that State officials had been involved in the operation and the related   questions raised by the Court before the Government. However, the investigators had   strictly limited their action to “pre-investigation inquiries”, while persistently refusing to   open criminal proceedings, which would have constituted the best, if not the only tool to   meet the Convention requirements of effective investigation. Moreover, the process of   repeated quashing and renewal of identical decisions by the investigation authority had   resulted in the proceedings being stalled in a manner that was incompatible with those   requirements. Finally, the investigators had failed to take some key investigative steps   such as finding out which airlines had operated flights from Moscow to Khujand between   and 3 November 2011 and questioning the security and administrative staff of the   airport where Mr Dzhurayev had reportedly boarded an aircraft.   As regards the State officials’ alleged involvement in Mr Dzhurayev’s abduction and   transfer, the Court underlined that its proceedings on such controversial issues depended   all the more on States’ cooperation, in line with their obligation under the Convention, to   furnish all necessary facilities for the establishment of the facts. The Court found that the   only genuine way for Russia to honour its undertaking in the present case would have   been to ensure that an exhaustive investigation of the incident was carried out and to   inform the Court about its results. However, the Russian authorities had manifestly failed   to do so, thus prompting the Court to examine the highly controversial issues at stake in   the place of the national authorities. Such a failure by the State to provide crucial   information and evidence compelled the Court to draw strong inferences in favour of Mr   Dzhurayev’s position. Furthermore, the Government had not presented any plausible   version of events or explained how Mr Dzhurayev could have been forcibly taken directly   to the airfield and put onboard a plane for a foreign country without having to account to   any State officials. The Court therefore concluded that Russia was to be held responsible   for his forcible transfer to Tajikistan on account of State officials’ involvement in that   operation.   The Court held that there had been a violation of Article 3 on account of Russia’s failure   to protect Mr Dzhurayev against the real and imminent risk of torture and ill treatment   by preventing his forcible transfer from Moscow to Tajikistan, the lack of an effective   investigation into the incident, and the involvement of State officials in that operation.   Article 34   In spite of the interim measure indicated by the Court in December 2010 that he should   not be extradited until further notice – and the Russian Government’s submission that   the authorities had taken the relevant steps to comply with that measure - Mr Dzhurayev   had been forcibly transferred to Tajikistan in November 2011 by way of a special   operation in which State officials were involved. The Court underlined the vital role of   interim measures in the Convention system, which not only underpins their binding legal   effect, but also commands the utmost importance to be attached to the question of   States’ compliance with such measures. Any laxity on this question would unacceptably   weaken the protection of the Convention core rights and, more generally, undermine the   authority and effectiveness of the Convention as a constitutional instrument of European   public order. These principles made it inconceivable to allow a State to circumvent an   interim measure in an arbitrary and manifestly unlawful manner. There had accordingly   been a violation of Article 34 on account of Russia having disregarded the interim   measure indicated by the Court.   Article 5   Furthermore, the Court found a violation of Article 5 § 4 on account of the long delays in   examining Mr Dzhurayev’s appeals against two orders for his detention in 2010. The   Russian courts had dismissed those appeals 54 days and 29 days, respectively, after   they had been lodged, and the Government had not given any explanation for the   prolonged delays.   Article 41 (just satisfaction)   The Court held that Russia was to pay Mr Dzhurayev 30,000 euros (EUR) in respect of   non-pecuniary damage and EUR 5,920 in respect of costs and expenses.   Article 46 (binding force and execution of judgments)   The Court considered that, in addition to the payment of just satisfaction, the findings of   the judgment required other measures to be taken. The fact that Mr Dzhurayev   remained outside Russia’s jurisdiction did not exempt the State from its legal obligation   to take all measures within its competence in order to put an end to the violation found   and make reparation for its consequences. It was not impossible for Russia to take   tangible remedial measures to protect Mr Dzhurayev from the existing risks to his life   and health in Tajikistan. The need for such measures was all the greater given that he   had been granted temporary asylum in Russia. It was further open to Russia to carry out   an effective investigation into the abduction in order to remedy the procedural violation   of Article 3. The Committee of Ministers of the Council of Europe was better placed to   supervise, on the basis of the information provided by Russia and with due regard to Mr   Dzhurayev’s evolving situation, the adoption of such measures that were feasible,   timely, adequate and sufficient to ensure the maximum possible reparation for the   violations found by the Court.   Furthermore, the findings of the judgment supported the view that the repeated   abductions of individuals and their ensuing transfer to other countries by deliberate   circumvention of due process – notably in breach of the interim measures indicated by   the Court – had amounted to a flagrant disregard for the rule of law and suggest that   certain State authorities have developed a practice in breach of their obligations under   the Russian law and the Convention. Such a situation has the most serious implications   for the Russian legal order, the effectiveness of the Convention system and the authority   of the Court.   The recent significant case-law developments by the Russian Supreme Court leading to a   better protection in extradition cases had to be meticulously followed by all Russian   courts to avoid such failings of domestic remedies as those criticised in the present   judgment. The present judgment also required the resolution of the recurrent problem of   blatant circumvention of the domestic legal mechanisms in extradition matters.   Furthermore, applicants in respect of whom the Court had indicated interim measures   had to be granted effective protection by the State not only in law, but also in practice.   Given that the general protection provided for by the ordinary legal framework had   regularly failed in cases such as Mr Dzhurayev’s, an appropriate mechanism tasked with   both preventative and protective functions, had to be put in place to ensure that such   applicants benefitted from immediate and effective protection against unlawful   kidnapping and irregular removal from the national territory and the jurisdiction of the   Russian courts. Lastly, the State was to avail itself of appropriate procedures and   institutional arrangements to ensure effective investigation into every case of breach of   interim measures. Close scrutiny of such investigations at an appropriate official level   was also called for in order to ensure that they were conducted with the necessary   diligence and to the required standard of quality.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court.   Decisions, judgments and further information about the Court can be found on   www.echr.coe.int. To receive the Court’s press releases, please subscribe here:   www.echr.coe.int/RSS/en or follow us on Twitter @ECHR_Press.   Press contacts   [email protected]e.int | tel: +33 3 90 21 42 08   Nina Salomon (tel: + 33 3 90 21 49 79)   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Denis Lambert (tel: + 33 3 90 21 41 09)   Jean Conte (tel: + 33 3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of   Europe Member States in 1959 to deal with alleged violations of the 1950 European   Convention on Human Rights.   6