Постановление Европейского суда по правам человека от 20.05.2010 «Дело Хайдаров (khaydarov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF KHAYDAROV v. RUSSIA
(Application No. 21055/09)
JUDGMENT*
(Strasbourg, 20.V.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Khaydarov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 29 April 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 21055/09) 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 a Tajikistani national, Mr Mamurdzhon Rakhimdzhonovich Khaydarov ("the applicant"), on 22 April 2009.

2. The applicant was represented by Ms R. Magomedova and Ms E. Ryabinina, lawyers practising in Moscow. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 23 April 2009 the President of the First Section decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Tajikistan until further notice and granting priority treatment to the application.

4. On 3 July 2009 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1958 and lives in Dushanbe, Tajikistan. He is currently detained in a remand prison in Moscow.

A. Background of the case
1. Civil war in Tajikistan
6. In May 1992 a civil war erupted in Tajikistan when ethnic groups under-represented in the ruling elite rose up against the national government of President Nabiyev. Politically, the discontented groups were represented by liberal democratic reformists and Islamists, who fought together and later organised themselves under the banner of the United Tajik Opposition ("UTO"). By June 1997 fifty to one hundred thousand people had been killed. On 27 June 1997 a peace agreement was signed by President Rakhmonov and the UTO leader. However, in August 1997 fighting again erupted in several regions of Tajikistan, incited by an opposition group. Government forces retaliated and drove the armed faction of the opposition group to seek sanctuary in Uzbekistan.

2. The applicant's account of the events of August 1997
7. The applicant, an ethnic Uzbek, lived in the village of Tajikistan in the Shakhrinavskiy District of Tajikistan. The village was mainly populated by ethnic Uzbeks. In the late 1990s large-scale persecution of ethnic Uzbeks commenced in Tajikistan. There were several armed attacks on the applicant's village; some of his acquaintances were killed.

8. The local administration of the applicant's village decided to create a number of checkpoints on the way to the village to protect the inhabitants and provided those who manned those checkpoints with firearms. The applicant himself was not given any firearms.

9. In August 1997 the village was attacked once again; after that, several members of the local militia and the applicant fled to Uzbekistan.

3. Subsequent events
10. In February 1998 the applicant moved to Russia.

11. On several occasions the applicant travelled from Russia to Tajikistan. He obtained internal Tajik identity papers and a foreign passport in 2002 and 2004 respectively. His last visit to Tajikistan took place in September 2005.

12. On 6 February 2001 the Tajik Prosecutor General's Office instituted criminal proceedings against Mr M., a fellow villager of the applicant who had participated in the militia and fled to Uzbekistan in August 1997, charging him with banditry and organisation of an illegal armed group. The applicant was listed as one of the members of the group.

B. Criminal proceedings against the applicant
13. On 16 January 2006 the Tajik Prosecutor General's Office decided to bring charges against the applicant, stating that in August 1997 he had been a member of Mr M.'s illegal armed group and that such actions constituted an act of banditry punishable under Article 74 of the Tajik Criminal Code. It was also decided that the applicant should be put on a wanted list.

14. On 17 February 2006 the Tajik Prosecutor General's Office decided, in the absence of the applicant, to place him in custody.

15. On 15 April 2006 the applicant was put on an international wanted list.

16. On 19 July 2006 the investigation in the applicant's case was suspended as the applicant was at large.

17. On 13 March 2008 the Tajik Prosecutor General's Office severed the applicant's case from Mr M.'s criminal case. The decision read, in so far as relevant, as follows:

"At the beginning of August 1997 [Mr M.], taking advantage of the unstable situation in Tajikistan, created an illegal armed group to attack legal entities and private individuals; the group was active until the end of August 1997.

...

At the beginning of August 1997 Mr Khaydarov was a voluntary member of the illegal armed group and participated in armed hostilities.

On 9 and 10 August 1997, after officers of law-enforcement agencies had entered the territory of the Shakhrinavskiy District, Mr M.'s armed group fled the district territory and left Tajikistan."
C. Extradition proceedings
18. On 18 April 2008 the Tajik Prosecutor General's Office sent a request for the applicant's extradition to the Russian Prosecutor General's Office, stating that in August 1997 the applicant had been a member of Mr M.'s illegal armed group.

19. On 24 April 2008 the Russian Prosecutor General's Office received a request by the Tajik Prosecutor General's Office to extradite the applicant.

20. On 13 June 2008 the Tajik Prosecutor General's Office sent the Russian Prosecutor General's Office additional documents stating that the applicant had participated in Mr M.'s group which had fought the government troops, and that he had borne arms and had manned the checkpoint in the village of Tajikistan.

21. On 20 November 2008 the Russian Prosecutor General's Office ordered the applicant's extradition to Tajikistan. The decision read, inter alia, as follows:

"The actions of [Mr] M. Khaydarov are punishable under the Russian criminal law and correspond to Article 209 § 2 of the Russian Criminal Code (participation in a gang), which provides for a sanction in a form of imprisonment for more than one year.

...No [legal] impediments to [Mr] M. Khaydarov's extradition under treaties and Russian laws have been established."
22. On 3 December 2008 the applicant was notified of the extradition order of 20 November 2008.

23. The applicant and his counsel lodged appeals against the decision of 20 November 2008 on 4 and 5 December 2008 respectively. In his appeal the applicant alleged that he was being persecuted in Tajikistan for political reasons related to the civil war.

24. On 23 December 2008 the Moscow City Court, at the applicant's counsel's request, included in the case file reports by international NGOs on the political climate in Tajikistan and postponed the examination of the appeals because the applicant's appeal against the refusal to grant his asylum request had not yet been examined.

25. On 21 January 2009 the Moscow City Court again postponed the hearing pending examination of the appeal against the refusal to grant the applicant asylum and requested additional documents from the Russian Prosecutor General's Office concerning the charges brought against the applicant in Tajikistan.

26. On 4 February 2009 the Moscow City Court sent requests for information to the Russian and Tajik Ministries of Foreign Affairs concerning the applicant's allegations of a risk of ill-treatment, as well as to the Russian Prosecutor General's Office concerning the possibility of amnesty being granted to the applicant in Tajikistan, and postponed a hearing on the appeal against the extradition order pending the completion of the asylum proceedings.

27. On 17 February 2009 the Russian Prosecutor General's Office informed the City Court that the applicant could not benefit from acts of amnesty in Tajikistan.

28. On 26 February and 12 March 2009 the Moscow City Court again sent requests for information concerning the applicant's allegations of a risk of ill-treatment to the Russian and Tajik Ministries of Foreign Affairs.

29. On 27 February 2009 the Moscow City Court again postponed a hearing.

30. On 24 March 2009 the Russian Ministry of Foreign Affairs informed the Moscow City Court that it had no information concerning any political motives for the applicant's prosecution and noted that Tajikistan had ratified nearly every major international human-rights instrument, including the International Covenant on Civil and Political Rights (ICCPR) and the United Nations (UN) Convention against Torture.

31. On 1 April 2009 the Moscow City Court questioned Ms Ryabinina, a member of the Expert Council for the Russian Ombudsman, who stated that torture and ill-treatment were frequently practised in Tajikistan.

32. On the same day the Moscow City Court dismissed at first instance the appeals lodged by the applicant and his counsel against the extradition order of 20 November 2008. The court reasoned, in particular, that the applicant had voluntarily left Tajikistan in 1997 and had been able to freely enter the country since then, that the Tajik Prosecutor General's Office had guaranteed that the applicant had not been prosecuted for political or religious reasons, and that Tajikistan had ratified nearly every major international human-rights instrument. The applicant's allegation that he had been prosecuted in relation to the civil war remained unanswered.

33. On 6 April 2009 the applicant's counsel appealed against the Moscow City Court's judgment.

34. On 10 April 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office of the following:

"The criminal proceedings against [Mr] Khaydarov are not inspired by any political motives and the Tajik Prosecutor General's Office guarantees that [Mr] Khaydarov will be prosecuted only in respect of the act he was charged with; he will be able to freely leave the territory of Tajikistan after completion of the court proceedings and having served any sentence; he will not be extradited to a third State without the Russian authorities' consent and will not be persecuted on political and religious grounds."
35. On 14 May 2009 the Supreme Court of Russia ("the Supreme Court") quashed the judgment of 1 April 2009 because the Moscow City Court had failed to thoroughly examine the applicant's counsel's claim that the crime that the applicant had been charged with was of a political nature. Moreover, the Supreme Court stated that the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) had confirmed that the applicant's fears of political persecution had been well-founded. The case file was returned to the Moscow City Court for a fresh examination.

36. On 26 May 2009 the Tajik Prosecutor General's Office informed the Russian Prosecutor General's Office that Tajikistan had ratified the UN Convention against Torture.

37. On 3 June 2009 the Moscow City Court re-examined the appeals against the extradition order and upheld it. It reasoned that the applicant was a Tajikistani national, held no refugee status and, according to the Tajik Prosecutor General's Office, had not been prosecuted for political or religious reasons. The court also pointed out that the applicant had applied for temporary asylum only on 6 April 2009 and concluded that his application could not impede the examination of the appeals against the extradition order. It further referred to the guarantees of 10 April and 26 May 2009 provided by the Tajik Prosecutor General's Office that the applicant would not be persecuted on political and religious grounds and dismissed the report by Ms Ryabinina as unsubstantiated, arguing that the assurances in question sufficed to exclude the risk of ill-treatment in the applicant's case. The applicant's allegations that the criminal proceedings against him had been linked to the events surrounding the civil war remained unanswered.

38. On 30 July 2009 the Supreme Court upheld the Moscow City Court's decision of 3 June 2009. It reasoned that Tajikistan had ratified the UN Convention against Torture and referred to the guarantees given by the Tajik Prosecutor General's Office. On the same date the extradition order became final.

D. Asylum proceedings
39. On 17 June 2008 the applicant applied to the Moscow Office of the Federal Migration Service ("the Moscow FMS") for asylum, claiming that the Tajik authorities had persecuted him on the ground of his ethnic origin.

40. On 6 October 2008 the asylum request was dismissed; on 1 November 2008 the applicant was notified accordingly.

41. On 28 January 2009 the Zamoskvoretskiy District Court of Moscow dismissed an appeal by the applicant against the decision by the Moscow FMS.

42. On 26 March 2009 the Moscow City Court upheld the judgment of 28 January 2009 on appeal.

43. On 6 May 2009 the UN High Commissioner for Refugees declared the applicant a person requiring international protection.

44. On 22 September 2009 the Moscow FMS rejected the applicant's request for temporary asylum and notified him accordingly on 5 October 2009.

45. The applicant appealed against the refusal of 22 September 2009 to the Federal Migration Service of Russia ("the Russian FMS").

46. On 13 November 2009 the Russian Office of the UNHCR sent the Russian FMS a report in support of the applicant's request for temporary asylum, stating that he ran a real risk of being ill-treated in Tajikistan. The report read, in particular, as follows:

"Mr Khaydarov's allegations [of a risk of ill-treatment] are supported by numerous documents concerning