Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13+3;Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 34;Remainder inadmissible;Just satisfaction reserved

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1965 and is serving a sentence of imprisonment in Uzbekistan.

The applicant arrived in Russia in July 2000 and resided in the town of Michurinsk in the Tambov Region. It appears that until mid-2003 he returned to Uzbekistan for several short periods of time. In 2004 he was convicted by a Russian court and sentenced to six months’ imprisonment for having used a false migration card. After his release, in October 2004 he moved to Usman, a provincial town in the Lipetsk Region, where he was employed as a cook. On 31 January 2005 the applicant sought a temporary residence authorisation (разрешение на временное проживание) and apparently applied for Russian citizenship. It appears that his application was rejected on 28 February 2006 (see paragraph 17 below). According to the applicant, he became aware of that refusal only on 29 September 2006.

Most recently, from 23 December 2005 to 23 March 2006 the applicant had a valid temporary residence registration (временная регистрация) in the Lipetsk Region. According to the applicant, on an unspecified date in 2006 the Chief Inspector of the Criminal Police of Usman in the Lipetsk Region refused to renew it. It appears, however, that no formal decision was issued.

According to the Uzbek authorities, in April 2005 two Uzbek nationals complained to the Uzbek National Security Service (NSS) that the applicant had been engaged in anti-constitutional activities during an unspecified period of time. He left Uzbekistan after his accomplices had been apprehended.

On 29 April 2005 the NSS of the Surkhandarianskiy Region initiated criminal proceedings against the applicant under Article 159 § 3 (b) and Articles 216, 244-1 and 244-2 of the Uzbek Criminal Code (see paragraph 76 below). They accused him of membership of Hizb ut-Tahrir (HT), a transnational Islamic organisation, which is banned in Russia, Germany and some Central Asian states. On 8 May 2005 the Uzbek authorities issued an arrest warrant in respect of the applicant with reference to the charges under Articles 159 and 244-1 of the Uzbek Criminal Code.

On 2 February 2006 the applicant was apprehended in the town of Gryazi in Russia and taken into custody. On 4 February 2006 the Gryazi Town Court of the Lipetsk Region authorised his detention with a view to extradition to Uzbekistan, relying on Article 108 of the Code of Criminal Procedure (CCrP). It did not set a time-limit for which that detention was authorised. The detention order was amenable to appeal to the Regional Court within a three-day time-limit. The applicant did not appeal.

In March 2006 the Uzbek Prosecutor General’s Office requested the applicant’s extradition and provided assurances that he would not be surrendered to another State without Russia’s consent and would not be prosecuted or punished for any offence committed prior to his extradition and for which extradition would have been refused; and that he would be able to leave Uzbekistan after being tried and serving his sentence.

On 12 April 2006 the Lipetsk regional prosecutor instructed the administration of the remand centre to keep the applicant in detention under Article 466 of the CCrP, the 1993 Minsk Convention and the Prosecutor General’s Instructions of 20 June 2002 (see paragraphs 53, 54 and 66 below).

On 22 September 2006 the Prosecutor General’s Office of the Russian Federation rejected the extradition request because some of the acts imputed to the applicant were not criminal offences in Russia, while the others had been committed before becoming punishable under the Russian Criminal Code, or prosecution for such offences had become time-barred.

On 26 September 2006 the Prosecutor General’s Office informed the Prosecutor’s Office of the Lipetsk Region that the applicant’s extradition had been refused, and instructed that office to check the grounds for the applicant’s presence in the territory of Russia and to decide whether he should be removed from Russia.

On 28 September 2006 the regional prosecutor instructed the Gryazi Prosecutor’s Office to check the lawfulness of the applicant’s stay in Russia and to institute proceedings against him under the Code of Administrative Offences, if appropriate. The prosecutor wrote as follows:

“...if a judge does not order administrative expulsion and if legal grounds obtain, it is necessary to decide on Mr Muminov’s deportation under section 25.10 of the Law on Entering and Leaving the Russian Federation and the Government’s Decree no. 199 of 7 April 2003...”

On the same day, the Gryazi Prosecutor’s Office ordered the applicant’s release from custody.

The applicant was released on 29 September 2006. Immediately thereafter, the Gryazi Prosecutor’s Office accused him of residing in the territory of Russia in breach of Article 18.8 of the Code of Administrative Offences. It found in particular that the applicant’s application “for permission to temporarily reside in Russia” had been rejected by the Regional Office of the Federal Security Service (“FSB”) on 28 February 2006 and that his residence registration had expired on 23 March 2006. On the same date, the administrative file was examined by a judge in the Gryazi Town Court who discontinued the case for lack of a corpus delicti. The judge held in essence that although the applicant’s residence registration had expired on 23 March 2006, on that date and until 29 September 2006 he had been detained with a view to extradition. Having been released and charged on the same day, he could not have committed the offence imputed to him. The judgment became final after the expiry of the statutory time-limit for appeal.

While in detention, in April 2006 the applicant submitted to the Lipetsk Regional Migration Authority applications for refugee status and temporary asylum in Russia. On 12 April 2006 migration officers interviewed him in the remand centre. As can be seen from the interview record, signed by the applicant, he denied membership of any proscribed organisation; having learnt from his wife about the criminal charges against him in Uzbekistan, he had been planning to go there in order to clarify the situation but could not buy a train ticket. He indicated his “fear of being prosecuted for serious offences which he had not committed” as the reason for refusing to return to Uzbekistan.

In a decision of 17 April 2006 the Migration Authority refused to examine the applicant’s application for refugee status on the merits, concluding that he had left Uzbekistan for “economic reasons” falling outside the scope of an admissible refugee request and that he was refusing to return there because of the criminal prosecution against him. The Migration Authority also rejected his temporary asylum application on 2 May 2006, concluding that his fear of being prosecuted for offences could not be a valid reason for granting temporary asylum. The Authority found as follows:

“...the applicant’s explanations are contradictory... On 12 April 2006 he explained that he had arrived in Gryazi to purchase a train ticket, whereas on 20 April 2006 he contended that he had been in Gryazi to seek assistance from a friend in order to lodge a complaint with the Strasbourg court. The applicant probably means the European Court of Human Rights in Strasbourg, whereas he is a national of Uzbekistan, a Central Asian republic. Besides, a complaint before that court may be lodged after the applicant has exhausted all judicial remedies in his republic; in addition, he fled justice in Uzbekistan. Thus, the applicant is manifestly trying to hide his true intentions.

All the reasons indicated by the applicant for not returning to Uzbekistan were examined together with his request for refugee status and did not justify granting such status. No other reasons were adduced in favour of granting such a status on the basis of humane considerations.

According to information from the Russian Ministry of Foreign Affairs, ‘... there was no ascertainable information about instances of torture or the sentencing of expelled Uzbek nationals to the death penalty... During the last two years Uzbekistan has taken certain measures for reform in this field... In December 2003 the Supreme Court of Uzbekistan prohibited lower courts from using in evidence confessions obtained under torture or without counsel being present. In September 2004 the Plenary Session of the Supreme Court upheld the inadmissibility of unlawfully obtained evidence...’

The seriousness of the charges against the applicant should be taken into account... The political and extremist activities of Hizb ut-Tahrir may represent a threat to national security...”

In August 2006 the applicant, with the help of the Civic Assistance Committee, a non-governmental organisation helping immigrants, retained Ms Biryukova to represent his interests in the domestic proceedings. On 15 September 2006 the applicant obtained a copy of the decision of 17 April 2006 and appealed against it. He pleaded that he had become a refugee “sur place”; being a Sunnite, he feared that he would be tortured by the Uzbek authorities in order to make him admit to the extremist charges against him. He referred to reports by the UN and international non-governmental organisations about cases of ill-treatment against several persons in a similar situation.

On 24 October 2006 the applicant was expelled to Uzbekistan (for further details see section D below).

On 27 October 2006 the Sovetskiy District Court of Lipetsk upheld the decision of 17 April 2006. The court concluded that the applicant had failed to adduce any evidence that he had been or would be persecuted for “political reasons”.

On 18 December 2006 the Lipetsk Regional Court set aside the judgment of 27 October 2006 and ordered a re-examination of the matter by the District Court. On 10 January 2007 the District Court again dismissed the applicant’s complaint. It found as follows:

“... [the applicant] failed to comply with Articles 56 and 57 of the Code of Civil Procedure requiring him to adduce evidence in support of his allegation of political persecution....

[H]e has already been residing unlawfully in Russia for a long time ...

He neither submitted any evidence that he had left Uzbekistan for political reasons, nor has it been averred that his fears of persecution for political reasons were justified. He did not apply for refugee status after his unlawful entry into Russian territory. Thus, there were no legal grounds for examining his 2006 refugee application on the merits.”

The applicant’s representative did not appeal against that judgment.

In the meantime, in early October 2006 the applicant obtained an appointment for an interview on 1 November 2006 at the Centre for Refugees in the Moscow Office of the United Nations High Commissioner for Refugees.

On 16 October 2006 the Civic Assistance Committee requested the migration authorities to confirm the lawfulness of the applicant’s stay in Russia so that he could leave for another country that did not require a visa for Uzbek nationals.

The applicant was apprehended on 17 October 2006 on the premises of the Civic Assistance Committee, apparently because of his lack of a residence registration required under the Aliens Act (see paragraph 48 below). He was then taken to the Tverskoy District Office of the Federal Migration Authority. After an interview, he was brought before a judge of the 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 of 1,000 Russian roubles (RUB) and ordered his administrative expulsion from Russia, which is a subsidiary penalty under Article 18.8 of the Code of Administrative Offences. According to the text of the judgment, at the hearing the applicant conceded that he had been unlawfully resident in Russia and had no definite place of residence or source of income in Russia. According to the applicant, he was not allowed to contact the Civic Assistance Committee, to be represented by a lawyer retained by it or to speak during the hearing. In a separate decision given on the same date, the judge ordered the applicant’s immediate placement in the Severnyy Detention Centre no. 1 for Aliens.

On 18 October 2006 the FSB asked the administration of the detention centre not to deport the applicant without its consent and to coordinate with it all visits to the applicant, receipt of parcels by him or his telephone calls.

On 19 October 2006 the applicant’s counsel lodged a statement of appeal against the expulsion order with the Moscow City Court. A hearing was set down for 26 October 2006.

On 20 October 2006 the applicant issued Ms Chumakova with an authority form empowering her to institute proceedings before the European Court.

On 23 October 2006 the applicant requested the Court, under Rule 39 of the Rules of Court, to prevent his expulsion to Uzbekistan. He feared immediate expulsion despite his pending appeal against the expulsion order and alleged that he would face a serious risk of ill-treatment and unfair prosecution if he were returned to Uzbekistan.

On 24 October 2006 the Court indicated to the Russian Government under Rule 39 that the applicant should not be expelled to Uzbekistan until further notice. The Russian Government were notified at 5.17 p.m. Strasbourg time (7.17 p.m. Moscow time) by e-transmission through the publication of the relevant letter on the secure website used for communication between the Registry of the Court and the Office of the Representative of the Russian Federation at the European Court of Human Rights.

According to the Government, the applicant left Russia at 7.20 p.m. (Moscow time) on 24 October 2006 from Domodedovo Airport for Tashkent on board flight no. E3-265. The applicant’s representative submitted a letter dated 25 December 2006 issued by the Domodedovo Airlines Company, which read as follows:

“Domodedovo Airlines cannot confirm that Mr P.T. Muminov was on board flight no. E3-265 from Domodedovo to Tashkent on 24 October 2006 since there is no boarding pass for that passenger.”

As follows from a letter of 19 December 2006 from Uzbekistan Airways, Mr R. Muminov was on board flight no. HY-602 from Domodedovo to Tashkent on 24 October 2006. According to a copy of the log entries provided by the company and produced by the applicant’s representative, that flight left Moscow at 11.50 p.m. on 24 October 2006.

According to a report allegedly issued by the FSB on 22 October 2006, the applicant was questioned on 20 October 2006 in relation to his alleged extremist activities; “in view of his insincerity and taking into account the pressure by the human-rights organisations which attempt to present him as a victim of political repression, [the applicant] was removed from Russia”.

According to a press release issued by the FSB on 28 October 2006, the applicant was removed from Russia on 27 October 2006.

On 2 November 2006 the Moscow City Court quashed the expulsion order of 17 October 2006 and remitted the case to the District Court. The City Court found that the district judge had not specified the nature of the applicant’s allegedly unlawful conduct. The judge had not established the facts of the case, including the date of the applicant’s arrival in Russia, whether he had complied with his obligation to register at the place of his residence in Russia and when his registration had expired. Neither had the judge verified the authorities’ allegation that the applicant had been residing unlawfully in Russia since December 2005.

On 29 November 2006 the District Court re-examined the case and found that “the applicant had been lawfully present in the territory of Russia when he was first apprehended and remanded in custody”; he had then arrived in Moscow on 5 October 2006 in order to apply for refugee status at UNHCR’s Moscow office; he had stayed at the office of the Civic Assistance Committee until his arrest on 17 October 2006. The District Court also indicated that the applicant had appealed against the refusal to examine his application for refugee status and that a judgment had been given on 27 October 2006 and had not yet become final. The District Court concluded that the applicant had not committed the administrative offence of “breaching the residence regulations within the territory of the Russian Federation”, and discontinued the proceedings.

On 15 January 2007 the Dzhankurganskiy Criminal Court in Uzbekistan 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. According to the text of the judgment, “[the applicant] pleaded not guilty at the trial, denied the charges against him and fully retracted the statement he had made during the preliminary investigation while indicating that he had been compelled to sign that statement, which he had done without reading it”. With reference to statements from two witnesses and the applicant’s pre-trial statement, the trial court found that in 1999 the applicant had become a member of HT in Uzbekistan and had engaged in propaganda concerning its activities aimed at subverting the constitutional regime and creating an Islamist state. The judgment indicated that the applicant had been represented by a lawyer. The trial judgment was amenable to appeal. It is unclear whether the applicant exercised his right to appeal against it.

According to the applicant’s representative before the Court, the applicant had been refused permission to be represented by his privately retained counsel but legal-aid counsel had been appointed instead. Neither the applicant’s representative nor his family members had been informed of the exact place of his detention in Uzbekistan.

The applicant’s representative before the Court wrote to the Uzbek Prosecutor General’s Office asking for information regarding the place of the applicant’s detention and the conditions of access to him. Her request was forwarded to the prosecutor in the Surkhandaryinsk Region of Uzbekistan. On 17 January 2007 the prosecutor forwarded the request to the Surkhandaryinsk Regional Court. The applicant’s representative also wrote to the Uzbek Ministry of the Interior and the Ministry of Foreign Affairs. No replies were received.

On an unspecified date, the Russian authorities sent a request concerning the applicant to the Uzbek authorities. On 6 March 2007 the Uzbek Ministry of the Interior replied and enclosed a letter in Russian from the applicant dated 20 December 2006 worded as follows:

“... during my arrest and detention... the police and other law-enforcement officers did not violate my rights and did not exert any physical pressure upon me.

I have no claims against the police officers in Moscow or Lipetsk or against any other law-enforcement authority in Russia.

I confirm that this declaration is correct and written with my own hand.”

According to a linguistic expert report, produced by the applicant’s representative, the above letter did not contain any significant mistakes, whereas the applicant’s personal letters contained numerous mistakes reflecting his Uzbek mother tongue’s phonetics and grammar. The expert noted that the applicant would not have been able to acquire a sufficient command of the Russian language during the three months between the date of his sample letters (September 2006) and the letter in question (December 2006). The expert concluded that the letter of 20 December 2006 had not been written spontaneously by the applicant, who had transcribed the text from the original or written it from a letter-by-letter dictation by someone else.

On 28 October 2006 the Prosecutor’s Office of the Central Administrative District of Moscow initiated criminal proceedings on a complaint by the applicant’s representative about his hasty expulsion.

On 12 February 2007 the Moscow military prosecutor refused to bring criminal proceedings against any FSB officers in relation to the applicant’s hasty expulsion. The prosecutor stated:

“... as a result of the joint operation by officials of detention centre no. 1, migration officers and FSB officers on 24 October 2006, [the applicant] was removed from Russia in breach of ... the Code of Administrative Offences...

It transpires from the case file that the matter of his expulsion before the judgment ... acquired legal force was raised by the FSB before the migration authority and the administration of the detention centre...

[I]t was established that the migration authority had purchased a flight ticket for [the applicant] but it had not been used ... thus, the exact time of his crossing the Russian border was not confirmed...

According to Mr K., an FSB officer, Mr Muminov’s departure was delayed pending the arrival of Uzbek officials, who purchased a new ticket for him...”

On 20 April 2007 Mr G., Director of the Detention Centre for Aliens, was charged with abuse of power. Mr G. pleaded guilty at the trial. On 24 May 2007 the Butyrskiy District Court of Moscow convicted him of abuse of power and sentenced him to a fine of RUB 35,000. It held, inter alia:

“... being aware that the expulsion order in respect of Mr Muminov had not become final, Mr G. violated his defence rights and authorised the execution of the expulsion order at around 5 p.m. on 24 October 2006... As a result, Mr Muminov was put on flight no. HY-602 leaving for Tashkent...

Besides, ... on 26 October 2006 the European Court of Human Rights indicated to the Russian authorities that he should not be removed from Russia. However, the Russian Federation was unable to comply with that decision as a result of Mr G.’s unlawful actions.”

It appears that that judgment was not appealed against and became final.

No one may be subjected to torture, violence or any other inhuman or degrading treatment or punishment (Article 21 § 2). The decisions and actions (or inaction) of State authorities, local self-government, non-governmental associations and public officials may be challenged in a court of law (Article 46 § 2). In conformity with the international treaties of the Russian Federation, everyone has the right to turn to inter-State organs concerned with the protection of human rights and liberties after all domestic remedies have been exhausted (Article 46 § 3).

Pursuant to the Agreement between the Russian and Uzbek Governments signed in Minsk on 30 November 2000, as amended in 2005, citizens of one of the two States were not required to have a visa to enter and stay in the territory of the other State (section 1).

Under the Law on Legal Status of Aliens in the Russian Federation (no. 115-FZ of 25 July 2002 – “the Aliens Act”), as in force at the material time, a foreign national could temporarily stay in the territory of Russia, or temporarily or permanently reside in it. A foreign national had to obtain a temporary residence authorisation (разрешение на временное проживание) in order to temporarily reside in Russia or a residence permit (вид на жительство) in order to permanently reside in Russia (sections 6 and 8, respectively). A temporary residence authorisation or a residence permit could be refused, inter alia, if an alien advocated a violent change of the constitutional foundations of the Russian Federation, otherwise created a threat to its security or citizens or supported terrorist (extremist) activities (sections 7 and 9).

A foreign national had to register his or her residence within three days of his or her arrival in Russia (section 20(1)). Foreign nationals had to obtain residence registration at the address where they were staying in the Russian Federation. Should their address change, such change was to be re-registered with the police within three days (section 21(3)).

A foreign national who breached the regulations on staying or residing in the Russian Federation, including failure to register his or her residence, was liable to an administrative fine with or without administrative expulsion from Russia (Article 18.8 of the Code of Administrative Offences). A decision on the administrative offence was enforced once it had become final (Article 31.2 § 2 of the Code).

Pursuant to the Instructions on deportation or administrative expulsion of an alien, adopted by the Ministry of the Interior on 26 August 2004, the authority in charge of the execution of an expulsion order which had become final was to determine the country of destination and make arrangements for the alien’s departure (point 22).

Under the Law on the Procedure for Entering and Leaving the Russian Federation (no. 114-FZ of 15 August 1996), as amended in 2006, a competent authority could decide that a foreign national’s presence in Russian territory was undesirable – even if it was lawful – if, for example, it created a real threat to the defence capacity or security of the State, to public order or health (section 25.10 of the Law). If such a decision was given, the foreign national had to leave Russia or else be removed from the country. The procedure for such removal was detailed in the Government’s Decree no. 199 of 7 April 2003.

Under the Russian Code of Criminal Procedure (CCrP), the period of detention pending investigation could not exceed two months (Article 109 § 1) and could be extended by a judge up to six months (Article 109 § 2). Further extensions could only be granted if the person was charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months was permissible and the detainee was to be released immediately (Article 109 § 4).

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy was to decide on the measure of restraint in respect of the person whose extradition was sought. The measure of restraint was to be applied in accordance with the established procedure (Article 466 § 1).

Pursuant to the Instructions issued by the Prosecutor General on 20 June 2002, the procedure for the arrest and extension of detention of persons pending extradition was determined by international treaties to which the Russian Federation was a party. Chapter 54 of the CCrP was applicable in the parts complying with those treaties. Detainees’ release could be ordered by the Prosecutor General’s Office or by a court decision (point 2.9).

In a decision of 4 April 2006 the Constitutional Court held that the general provisions governing measures of restraint applied to all forms and stages of criminal proceedings, including proceedings on extradition. The Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without judicial review, was not compatible with the Constitution in any circumstances, including in the context of extradition proceedings. It appears that the decision was published in July 2006. On 11 July 2006 the Constitutional Court declined jurisdiction in relation to a request by the Prosecutor General for clarification of that decision and indicated that courts of general jurisdiction were competent to decide on the procedure and time-limits which should apply for detention in extradition proceedings.

Chapter 16 of the CCrP laid down the procedure by which parties to criminal proceedings could challenge the acts or omissions of an inquirer, investigator, prosecutor or court (section 123). Those acts or omissions could be challenged before a prosecutor or a court. Article 125 provides for judicial review of a decision taken by inquirers, investigators, prosecutors not to initiate criminal proceedings, a decision to discontinue them or any other decision or omission which was capable of impinging upon the rights of persons involved in the proceedings (section 125).

The Custody Act laid down the procedure and conditions for the detention of persons who were apprehended under the CCrP on suspicion of criminal offences; it also applied to persons who were suspected or accused of criminal offences and who were remanded in custody (section 1). Persons suspected or accused of criminal offences had a right to lodge complaints with a court or another authority in relation to the lawfulness and reasonableness of their detention (section 17(1)(7)).

The Refugees Act (Law no. 4258-I of 19 February 1993) defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it (section 1(1)(1)). The migration authority may refuse to examine the application for refugee status on the merits if the person concerned has left the country of his nationality in circumstances falling outside the scope of section 1(1)(1), and does not want to return to the country of his nationality because of a fear of being held responsible for an offence (правонарушение) committed there (section 5(1)(6)).

Persons who have applied for or been granted refugee status cannot be returned against their will to the State of which they are a national where their life or freedom would be imperilled on account of their race, religion, nationality, membership of a particular social group or political opinion (sections 1 and 10(1)).

Having received a refusal to examine an application for refugee status on the merits and having decided not to exercise the right of appeal under section 10, the person concerned must leave the territory of Russia within one month of receiving notification of the refusal if he or she has no other legal grounds for staying in Russia (section 5(5)). Under section 10(5), having received a refusal to examine the application for refugee status on the merits or a refusal of refugee status and having exercised the right of appeal against such refusals, the person concerned must leave the territory of Russia within three days of receiving notification of the decision on the appeal if he or she has no other legal grounds for staying in Russia. If, after the appeal has been rejected, the person concerned still refuses to leave the country, he or she is to be deported (section 13(2)).

If the person satisfies the criteria set out in section 1(1)(1), or if he or she does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he or she may be granted temporary asylum (section 12(2)). Persons who have been granted temporary asylum cannot be returned against their will to the country of which they are a national or to the country of their former habitual residence (section 12(4)).

By a decision (решение) of 14 February 2003 the Supreme Court of the Russian Federation granted the Prosecutor General’s request and classified a number of international and regional organisations as terrorist organisations, including HT (also known as the Party of Islamist Liberation), and prohibited their activity in the territory of Russia. It held in relation to HT that it aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States.

Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the rights of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, reads as follows:

“Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers...,

An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment.

In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when:...

2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief;...

2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.”

The Council of Europe Commissioner for Human Rights issued on 19 September 2001 a Recommendation (CommDH(2001)19) concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows:

“11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.”

For other relevant documents, see the Court’s judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007...

The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997), to which both Russia and Uzbekistan are parties, provides that an extradited person cannot be subject to criminal prosecution or punished for a criminal offence committed prior to extradition and in respect of which extradition was refused, without the consent of the extraditing State (Article 66 § 1). The extradited person cannot be surrendered to a third State without the consent of the extraditing State (Article 66 § 2).

In his report (E/CN.4/2003/68/Add.2) submitted in accordance with Resolution 2002/38 of the United Nations (UN) Commission on Human Rights, the Special Rapporteur on the question of torture, Theo van Boven, described the situation in Uzbekistan as follows:

“40. According to the information received from non-governmental sources, torture is being used in virtually all cases in which articles 156, 159 and 244 CC [Criminal Code] ... are invoked, in order to extract self-incriminating confessions and to punish those who are perceived by public authorities to be involved in either religious, or political, activities contrary to State interests (socalled security crimes). These provisions, which are rather vaguely worded and whose scope of application may be subject to various interpretations, are said to have been used in numerous allegedly fabricated cases and to have led to harsh prison sentences. The four crimes that, following recent amendments, are now the only capital offences are said to lead to a death sentence only if they are combined with aggravated murder charges. Evidence gathering in such cases is said to rely exclusively on confessions extracted by illegal means. It is reported that religious leaflets as well as weapons or bullets have been planted as evidence that a person belongs to banned groups such as Hizb-ut-Tahrir, a transnational Islamic movement which calls for the peaceful establishment of the Caliphate in Central Asia. It is also reported that torture and ill-treatment continue to be used against inmates convicted on such charges, inter alia to force them to write repentance letters to the President of the Republic or to punish them further...

The combination of a lack of respect for the principle of presumption of innocence despite being guaranteed by the Constitution (art. 25) and [the Code of Criminal Procedure] (art. 23), the discretionary powers of the investigators and procurators with respect to access to detainees by legal counsel and relatives, as well as the lack of independence of the judiciary and allegedly rampant corruption in the judiciary and law enforcement agencies, are believed to be conducive to the use of illegal methods of investigation. The excessive powers in the overall criminal proceedings of procurators, who are supposed at the same time to conduct and supervise preliminary criminal investigations, to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention, make investigations into complaints overly dependent on their goodwill.

The Special Rapporteur regrets the absence of legal guarantees such as the right to habeas corpus and the right to prompt and confidential access to a lawyer and relatives. He further observes that pre-trial detainees are held in facilities which are under the same jurisdiction as investigators in the case...

The Special Rapporteur believes, on the basis of the numerous testimonies (including on a number of deaths in custody) he received during the mission, not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations, that torture or similar ill-treatment is systematic as defined by the Committee against Torture. Even though only a small number of torture cases can be proved with absolute certainty, the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process cannot be denied. The Special Rapporteur also observes that torture and other forms of ill-treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.”

In March 2005 the UN Human Rights Committee considered the second periodic report of Uzbekistan under the International Covenant on Civil and Political Rights and adopted the following observations (CCPR/CO/83/UZB):

“10. The Committee is concerned about the continuing high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the Covenant. It also notes that, while on 24 September 2004 the Plenum of the Supreme Court held that no information obtained from a detained individual in violation of the criminal procedure requirements (including in the absence of a lawyer) may be used as evidence in court, this requirement is not reflected in a law...

The Committee is concerned about allegations relating to widespread use of torture and illtreatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. It is a matter of further concern that no independent inquiries are conducted in police stations and other places of detention to guarantee that no torture or illtreatment takes place, apart from a small number of inquiries with external participation quoted by the delegation...

The Committee notes that while under domestic law individuals have access to a lawyer at the time of arrest, this right is often not respected in practice...

The Committee remains concerned that the judiciary is not fully independent and that the appointment of judges has to be reviewed by the executive branch every five years...”

The applicant also referred to the 2001 report (CCPR/CO/71/UZB, § 14) by the UN Human Rights Committee and the 2002 report (CAT/C/CR/28/7, § 5 (e)) by the UN Committee against Torture.

The UN Special Rapporteur on Torture, Manfred Nowak, stated at the Session of the UN Human Rights Council on 20 September 2006:

“The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan...”

In his 2006 report “Situation of human rights in Uzbekistan” (A/61/526) the UN Secretary General expressed his concern about the fate of individuals extradited or expelled to Uzbekistan:

“20. UNHCR continues to be concerned about the fate of an increasing number of Uzbek asylum-seekers and refugees, some of whom fled the Andijan events, who have been detained in countries of the Commonwealth of Independent States and forcibly returned to Uzbekistan despite a real risk of mistreatment in breach of international standards. In February 2006, 11 Uzbek asylum-seekers were forcefully returned from Ukraine to Uzbekistan. In a press statement of 16 February 2006, UNHCR said that it was appalled by this forceful deportation. Thus far, the Office of the United Nations High Commissioner for Refugees (UNHCR) has not had access to the 11 individuals... According to information received by OHCHR, no access has been granted to these individuals since their return to Uzbekistan.

OHCHR is concerned about other individuals who have fled since the Andijan events and who are under pressure from the Government of Uzbekistan or the host country to return despite a real risk of mistreatment in breach of international standards...

In an interview of 10 April 2006, the Special Rapporteur on the question of torture said that ‘there is ample evidence that both police and other security forces have been and are continuing to systematically practise torture, in particular against dissidents or people who are opponents of the regime’...

The Human Rights Committee, in its concluding observations of 31 March 2005 (CCPR/OP/83/UZB), remained concerned about the high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the International Covenant on Civil and Political Rights. The Committee expressed concern at the definition of torture in the Criminal Code of Uzbekistan. In addition, the Committee pointed to the allegations relating to widespread use of torture and ill-treatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. The Government of Uzbekistan was due to submit follow-up information by 26 April 2006 on these issues in accordance with the request of the Committee. So far, no such information has been submitted to the Human Rights Committee.”

In November 2007 the UN Committee against Torture considered the third periodic report of Uzbekistan (CAT/C/UZB/3) and adopted, inter alia, the following conclusions (CAT/C/UZB/CO/3):

“6. The Committee is concerned about:

(a) Numerous, ongoing and consistent allegations concerning routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings;

(b) Credible reports that such acts commonly occur before formal charges are made, and during pre-trial detention, when the detainee is deprived of fundamental safeguards, in particular access to legal counsel. This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws;

(c) The failure to conduct prompt and impartial investigations into such allegations of breaches of the Convention;...

The Committee has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention...

[T]he Committee remains concerned that despite the reported improvements, there are numerous reports of abuses in custody and many deaths, some of which are alleged to have followed torture or ill-treatment...”

In support of his allegation of the risk of ill-treatment in Uzbekistan, the applicant also submitted a copy of the third-party submissions by Human Rights Watch (HRW) and the AIRE Centre in the cases of Ismoilov and Others v. Russia (no. 2947/06, judgment of 24 April 2008) and in Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005I); the 2005 report by the Memorial Human Rights Centre in cooperation with the International League for Human Rights in relation to the Second Periodic Report of Uzbekistan to the UN Human Rights Committee; the 2005 HRW Briefing Paper “Torture Reform Assessment: Uzbekistan’s Implementation of the Recommendations of the Special Rapporteur on Torture” and other documents from that organisation; and various news items available on Internet sites such as www.centrasia.ru. The above documents described a disquieting human-rights situation in Uzbekistan with reference to diverse examples and indicated a lack of ascertainable progress in this field.

In a comprehensive 2004 report entitled “Creating Enemies of the State: Religious Persecution in Uzbekistan”, Human Rights Watch provides the following analysis (internal footnotes omitted):

“Members of Hizb ut-Tahrir, like Muslims labeled ‘Wahhabi’ by the state, are overwhelmingly self-defined Hanafi Sunnis, as are most Muslims in Uzbekistan, and not adherents of Wahabbism as it is understood in the Saudi Arabian context...

Hizb ut-Tahrir members form a distinct segment of the independent Muslim population by virtue of their affiliation with a separate and defined Islamic group with its own principles, structure, activities, and religious texts.

Hizb ut-Tahrir is an international Islamic organization with branches in many parts of the world, including the Middle East and Europe. Hizb ut-Tahrir propagates a particular vision of an Islamic state. Its aims are restoration of the Caliphate, or Islamic rule, in Central Asia and other traditionally Muslim lands, and the practice of Islamic piety, as the group interprets it... Hizb ut-Tahrir renounces violence as a means to achieve reestablishment of the Caliphate. However, it does not reject the use of violence during armed conflicts already under way and in which the group regards Muslims as struggling against oppressors, such as Palestinian violence against Israeli occupation. Its literature denounces secularism and Western-style democracy. Its anti-Semitic and anti-Israel statements have led the government of Germany to ban it. The government of Russia has also banned the group, classifying it as a terrorist organization.

Some in the diplomatic community, in particular the U.S. government, consider Hizb ut-Tahrir to be a political organization and therefore argue that imprisoned Hizb ut-Tahrir members are not victims of religious persecution. But religion and politics are inseparable in Hizb ut-Tahrir’s ideology and activities, and one of the chief reasons Uzbek authorities arrest members is the religious ideas Hizb ut-Tahrir promotes: the reestablishment of the Caliphate and strict observance of the Koran. Even if one accepts that there is a political component to Hizb ut-Tahrir’s ideology, methods, and goals, this does not vitiate the right of that group’s members to be protected from religion-based persecution.

Hizb ut-Tahrir in Uzbekistan

Hizb ut-Tahrir is not registered in Uzbekistan and is therefore illegal. It is referred to as a ‘banned’ organization, though in contrast to the means used by German authorities to ban Hizb ut-Tahrir, no single Uzbek administrative or judicial decision has ever prohibited the organization.

Members meet in small groups of about five people, referred to as ‘study groups’ by members and as ‘secret cells’ by Uzbek government officials. Both sides acknowledge that the primary activity of these small groups is the teaching and study of Hizb ut-Tahrir literature, as well as traditional Islamic texts such as the Koran and hadith. Membership in the group is solidified by taking an oath, the content of which has been given variously as: being faithful to Islam; being faithful to Hizb ut-Tahrir and its rules; and spreading the words of the Prophet and sharing one’s knowledge of Islam with others. Law enforcement and judicial authorities generally considered both those who had and had not taken the oath as full-fledged members.

In Human Rights Watch interviews and in court testimony, Hizb ut-Tahrir members have overwhelmingly cited an interest in acquiring deeper knowledge of the tenets of Islam as their motivation for joining the group. Hizb ut-Tahrir members in Uzbekistan, and likely elsewhere, regard the reemergence of the Caliphate as a practical goal, to be achieved through proselytism.

Members in Uzbekistan distribute literature or leaflets produced by the organization which include quotations from the Koran, calls for observance of the basic tenets of Islam, and analysis of world events affecting Muslims, including denunciation of the mass arrest of independent Muslims in Uzbekistan...

Human Rights Watch has documented 812 cases of arrest and conviction of the group’s members in Uzbekistan. The group itself estimated in June 2000 that police had arrested some 4,000 of its members in Uzbekistan during the government’s campaign against independent Islam since 1998. By November 2002 the German section of Hizb ut-Tahrir estimated that the government of Uzbekistan had imprisoned as many as 10,000 of the group’s followers. The Russian rights group Memorial reported 2,297 religiously and politically motivated arrests it had documented as of August 2001; the group estimated that more than half of the Muslims arrested for nonviolent crimes were those accused of Hizb ut-Tahrir membership. In addition to being arrested for membership and gathering to study, adherents of Hizb ut-Tahrir have been arrested, sometimes en masse, for possession or distribution of the group’s literature or, in some cases, because of simple, accidental proximity to those proselytizing for Hizb ut-Tahrir...

Torture and Mistreatment in Pre-trial Detention

Widespread torture of detainees is common in criminal investigations in Uzbekistan. In the campaign against independent Islam, police have systematically employed torture to coerce confessions and statements incriminating others.

In the past two years, the international community has taken notice of the pervasive and serious nature of torture in Uzbekistan and its use in the campaign against independent Islam...

... Police and security agents torture independent Muslim suspects during the investigative phase to compel confessions or testimony against others. The interrogation of an independent Muslim generally centers on questions about the detainee’s beliefs, affiliation with Islamic groups, or association with well-known independent imams. The end product the police are seeking is a statement – prepared by police, signed by the detainee – that describes the detainee’s religious belief, practice, and affiliation rather than a criminal act. Because many of those detained on religion-related charges are held incommunicado, the interrogation may last up to six months.

Through torture and threats – on which we present details below – agents have coerced detainees to name members of religious organizations, people who have attended mosque with them, or even friends and neighbors who may not in fact have shared their religious beliefs or affiliation. They also have forced detainees to admit to associations with individuals unknown to them. Police then arrested those named, or brought them in as witnesses, often coercing them into testifying for the prosecution. This coercive strategy produces a perpetual flow of names for the police and security services to pursue. Police sometimes arrest a suspect and torture individuals unknown to him into testifying against him...”

The report summarises a number of cases of torture documented by Human Rights Watch, describing methods of torture used against Muslim detainees, including beatings by fist and with truncheons or metal rods, rape and sexual violence, electric shock, use of lit cigarettes or newspapers to burn the detainee, and asphyxiation with plastic bags or gas masks. The report also seeks to reveal the role torture plays in coercing testimony; judicial refusal to investigate victims’ allegations; and the courts’ practice of admitting as evidence testimony obtained under torture.

The report also indicates that although Uzbek law provides for access to legal counsel from the moment of arrest, the investigating police frequently pressure detainees not to seek counsel. When detainees or their families attempt to engage an independent defence lawyer, authorities often refuse requests from the lawyer for access to his or her client, until the police have secured a confession from the accused. Police frequently pressure detainees or their families to accept the services of State-appointed lawyers who do not defend their client’s interests, and who are unlikely to lodge complaints against ill-treatment. Judges have ignored defendants’ court testimony about the torture they endured and have admitted as evidence confessions and other testimony obtained through torture during the investigation.

The 2005 US Department of State Country Report on Human Rights Practice, released on 8 March 2006, provides the following information in relation to Uzbekistan:

“Although the law prohibits such practices, police and the NSS [National Security Service] routinely tortured, beat, and otherwise mistreated detainees to obtain confessions or incriminating information... Defendants in trials often claimed that their confessions, on which the prosecution based its cases, were extracted as a result of torture... During the year the government took a few steps towards reform confined to education and outreach, while in large part it showed little will to address UN conclusions...

Authorities treated individuals suspected of extreme Islamist political sympathies, particularly alleged members of HT [Hizb ut-Tahrir], more harshly than ordinary criminals. There were credible reports that investigators subjected pretrial detainees suspected to be HT members to particularly severe interrogation. After trial, authorities reportedly used disciplinary and punitive measures, including torture, more often with prisoners convicted of extremism than with ordinary inmates. Local human rights workers reported that common criminals were often paid or otherwise induced by authorities to beat HT members. As in previous years there were numerous credible reports that officials in several prisons abused HT members to obtain letters of repentance, which are required for a prisoner to be eligible for amnesty. According to prisoners’ relatives, amnestied prisoners, and human rights activists, inmates who refused to write letters disavowing their connection to HT were often beaten or sent into solitary confinement. During the year inmates and a guard at one prison corroborated reports that prison guards systematically beat suspected HT members following the March and April 2004 terrorist attacks...

Authorities continued to arbitrarily arrest persons on charges of extremist sentiments or activities, or association with banned religious groups... Authorities made little distinction between actual members and those with marginal affiliation with the group, such as persons who had attended Koranic study sessions with the group.

As in previous years, there were reports that authorities arrested and prosecuted persons based on the possession of HT literature. Coerced confessions and testimony were commonplace. Even persons generally known to belong to HT stated that the cases against them were built not on actual evidence, which would have been abundantly available, but on planted material or false testimony...

Defense attorneys had limited access in some cases to government-held evidence relevant to their clients’ cases. However, in most cases a prosecution was based solely upon defendants’ confessions or incriminating testimony from state witnesses... During the year the BBC quoted a former Interior Ministry official who claimed that investigators often used beatings, psychotropic drugs, or threats against family members to obtain confessions from defendants...In many cases, particularly those involving suspected HT members, when the prosecution failed to produce confessions it relied solely on witness testimony, which was reportedly often also coerced...”

The Uzbek Criminal Code states that the Uzbek criminal law is based on the Constitution and recognised principles of international law such as the principle of legality, equality of citizens before the law, humanism and fairness (Articles 1 and 3).

Article 159 of the Uzbek Criminal Code, entitled “Attacks against the constitutional order of the Republic of Uzbekistan”, refers to public calls for unconstitutional change of the existing State structure, for the seizure of power or removal from power of legally elected or designated authorities or for the unconstitutional violation of the unity of the territory of the Republic of Uzbekistan, as well as the dissemination of materials having such content. Such acts are punishable by a fine or up to three years’ imprisonment. When committed by an organised group or in its interest, they are punishable by up to ten years’ imprisonment (§ 3 (b)).

Article 216 of the Code, entitled “Establishing Proscribed Non-governmental and Religious Organisations”, refers to establishing or resuming the activities of proscribed non-governmental and religious organisations, as well as active participation in their activities. Such acts are punishable by a fine or a term of imprisonment of up to five years.

Article 244-1 of the Code, entitled “Preparation or dissemination of materials constituting a threat to public safety and public order”, refers to the preparation or dissemination of materials expressing the ideology of religious extremism, separatism or fundamentalism, incitement to riot or the forced eviction of citizens or materials intended to cause public panic, after an official warning. Such acts are punishable by a fine or a term of imprisonment up to three years.

Article 244-2 of the Code, entitled “Establishing, leading or participating in religious extremist, separatist, fundamentalist or other prohibited organisations”, refers to the offence of establishing, leading or participating in religious extremist, separatist, fundamentalist or other prohibited organisations. Such acts are punishable by a term of imprisonment of up to fifteen years and, if they cause serious damage, up to twenty years.

The Uzbek Code of Criminal Procedure states that the administration of justice is based on the principles of equality of citizens before the law and the courts, irrespective of their gender, race, nationality, language, religion, social origin, beliefs or personal or social status (Article 16). Judges, prosecutors and investigators must respect the reputation and honour of persons participating in the proceedings (Article 17). No one may be subjected to torture, violence and other forms of cruel or degrading treatment. Actions or decisions which are degrading, lead to the dissemination of a person’s private information, damage his or her health, or unjustifiably cause physical or moral suffering are prohibited.

State authorities and public officers in charge of criminal proceedings must protect the rights and freedoms of the persons participating in those proceedings (Article 18). No one may be arrested or detained unless ordered by a court or prosecutor. A court or prosecutor must promptly release each person who is unlawfully detained beyond the time-limit authorised by the law or a court decision. A person’s private life, inviolability of his or her home, correspondence and telephone conversations are protected by the law. Damage caused to the person as a result of a violation of his or her rights or freedoms in the course of criminal proceedings must be compensated for in compliance with the provisions of the Code.


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant, Mr K, is an Afghan national who was born in 1953 and lives in the Netherlands. The President decided not to disclose the applicant’s identity to the public (Rule 47 § 3). He is represented before the Court by Ms H.E. Visscher, a lawyer practising in Dordrecht.

The Netherlands Government (“the Government”) are represented by their Deputy Agent, Ms L. Egmond of the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant fled his native Afghanistan on 17 September 1998 and travelled to the Netherlands where he arrived on 14 October 1998 and applied for asylum. He was subsequently joined in the Netherlands by his spouse and four of their six children, the latter born between 1984 and 1989. On unspecified dates, the applicant’s spouse and four daughters were all granted Netherlands residence permits.

On 16 February 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the applicant’s asylum request by holding Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. The Minister based this decision on the applicant’s statements about his career from 1982 to 1992 as an officer in the Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”); the intelligence service during the former communist regime in Afghanistan in which he had last held the rank of colonel, and the general official country assessment report (algemeen ambtsbericht) on Afghanistan, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs. According to this official report, Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD. Although this decision entailed that the applicant was no longer lawfully staying in the Netherlands and was obliged to leave the country, the Minister further decided that for the time being the applicant would not be expelled to Afghanistan as it could not be excluded that, if returned to Afghanistan, he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention.

On 15 March 2004 the applicant filed an appeal against this decision with the Regional Court (rechtbank) of The Hague. In its judgment of 24 January 2005, the Regional Court accepted the appeal and quashed the impugned decision. Although it agreed with the Minister’s decision and pertaining reasoning to hold Article 1F of the 1951 Refugee Convention against the applicant, it also held – referring to a ruling given on 2 June 2004 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) and noting that the Minister had acknowledged that in Afghanistan the applicant would be exposed to a risk of treatment proscribed by Article 3 of the Convention – that the Minister should also have examined whether the applicant had established that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. Consequently, the Minister’s examination had been incomplete.

On 8 August 2006, the Minister took a fresh decision on the applicant’s asylum request, holding that it could not be concluded from the applicant’s account – viewed against the background of the current political and social situation in Afghanistan – that there existed a real and foreseeable risk that the applicant, if returned to Afghanistan, would be subjected to treatment in breach of Article 3 of the Convention. The Minister decided again to hold Article 1F of the 1951 Refugee Convention against the applicant and, furthermore, decided to impose an exclusion order (ongewenstverklaring) on the applicant. As to the applicant’s reliance on his right to respect for his family life within the meaning of Article 8 of the Convention in the Netherlands with his spouse, their children and one grandchild born in the Netherlands in the meantime, the Minister found that the exclusion order entailed an interference with the applicant’s rights under this provision but that the general interest outweighed the applicant’s personal interests.

On 13 September 2006, the applicant filed an objection (bezwaar) with the Minister against the decision to impose an exclusion order. As this order was immediately enforceable and the objection did not have suspensive effect, he also filed a request with the Regional Court of The Hague for a provisional measure, i.e. an injunction on his expulsion pending the objection proceedings. On the same date, the applicant also filed an appeal with the Regional Court of The Hague against the decision to reject his asylum request.

On 28 June 2007, the Regional Court of The Hague sitting in Haarlem accepted the applicant’s appeal and quashed the impugned decision. It noted at the outset that, since no appeal had been filed against the judgment of 24 January 2005, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final, and that the subject of the present appeal was the question whether the applicant had established that he would run a real risk of being subjected to treatment prohibited by Article 3 of the Convention if returned to Afghanistan, and, if so, whether that risk constituted a sustained obstacle. Noting that, in contrast to the decision of 16 February 2004, it had been concluded in the impugned decision at issue that the applicant had not established the existence of a real risk of treatment in violation of Article 3 in case of his return to Afghanistan, the Regional Court found that this changed opinion had not been duly reasoned. Accordingly, it remitted the case to the Deputy Minister of Justice (Staatssecretaris van Justitie; the successor to the Minister for Immigration and Integration) for a fresh decision.

On 3 July 2007, apparently at the applicant’s request, the Afghan mission in the Netherlands issued a written statement, confirming that the applicant “is an Afghan national and has not committed any crime against humanity during his duty in Afghanistan”.

On 24 July 2007, the Deputy Minister filed an appeal against the judgment of 28 June 2007 with the Administrative Jurisdiction Division. On 19 December 2007, the Administrative Jurisdiction Division accepted this appeal, quashed the judgment of 28 June 2007 and declared inadmissible the applicant’s appeal of 13 September 2006 against the decision to reject his asylum request. Referring to a ruling it had given on 6 July 2006 (Jurisprudentie Vreemdelingenrecht [Immigration Law Reports – “JV”] 2006/347), the Administrative Jurisdiction Division found that the applicant did not have an interest in a determination of his appeal since as long as the exclusion order which had also been imposed on him remained in force, the appeal in issue could never lead to lawful stay.

On 3 March 2008, the provisional-measures judge (voorzieningen-rechter) of the Regional Court of The Hague sitting in Haarlem granted the applicant’s request for an injunction on his expulsion pending the proceedings on his objection to the decision to impose an exclusion order on him.

On 16 January 2009, the Deputy Minister rejected the applicant’s objection of 13 September 2006. The Deputy Minister noted that the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final and that for that reason an exclusion order could be imposed. The Deputy Minister held that the statement of the Afghan mission in the Netherlands did not alter the decision, which had already become final, that Article 1F was applicable, as this statement did not provide any concrete elements to cast doubts on the correctness and completeness of the information contained in the official report of 29 February 2000. As regards Article 3 of the Convention, the Deputy Minister found that the applicant, noting his asylum account and his activities in Afghanistan, had established that he had well-founded fears for assuming that, if returned to Afghanistan in the present day situation, he would run a real risk to be subjected to treatment proscribed by this provision. However, this did not entail that the applicant was eligible for a residence title. This was dependent on the question whether this risk constituted a sustained obstacle. On this point, the Deputy Minister concluded that it had not been established that this was the case and that there was no reason to hold that withholding a residence permit from the applicant was disproportionate. As regards Article 8 of the Convention, the Deputy Minister reiterated that the decision to impose an exclusion order entailed an interference with the applicant’s right to respect for his family life but, taking into account the guiding principles set out in the Court’s judgment in the cases of Boultif v. Switzerland, (no. 54273/00, § 48, ECHR 2001IX) and Üner v. the Netherlands ([GC], no. 46410/99, § 58, ECHR 2006XII), considered – with extensive reasoning – that the interest of public safety and national security, as well as the prevention of crime and the protection of the rights and freedoms of others weighed more heavily than the applicant’s interest in an undisturbed family life. The Deputy Minister concluded that the interference was justified and not in breach of Article 8.

The applicant’s appeal against this decision was rejected on 29 April 2010 by the Regional Court of The Hague sitting in Middelburg. It agreed with the Deputy Minister that the decision taken on 16 February 2004 to hold Article 1F of the 1951 Refugee Convention against the applicant had become final and that the applicant had not demonstrated that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. As regard Article 8 of the Convention, it held:

“It is not in dispute that the exclusion order entails interference in the appellant’s family life. In assessing whether such interference is justified, the guiding principles as set out in the ruling of the European Court of Human Rights of 2 August 2001, JV 2001/254 (Boultif v. Switzerland) and supplemented in the ruling of 18 October 2006, JV 2006/417 (Üner v. the Netherlands) must explicitly be taken into consideration. In weighing the general interest of the State against the appellant’s personal life not only the separate principles must be addressed but these must also be considered in their correlation. And it must also be examined whether the imposition of an exclusion order, having regard also to its consequences, is proportionate. There must be a fair balance between the interests involved.

It is noted that the Deputy Minister, in reaching the decision, has taken into account the above principles, also referred to as “the Boultif criteria”. On appeal, the appellant has merely submitted that in the impugned decision the Deputy Minister has not made an assessment based on the guiding principles but only considered that the interest of public safety and national security ought to outweigh the appellant’s interest in an undisturbed family life. The Regional Court considers that, in his criticism of the extensive assessment by the Deputy Minister, the appellant has not sufficiently focussed on (parts of) that assessment. In the opinion of the Regional Court, the Deputy Minister could conclude that the exclusion order does not violate Article 8 of the Convention.”

The applicant’s subsequent appeal to the Administrative Jurisdiction Division was dismissed on 30 November 2010. It upheld the judgment of 29 April 2010. In so far as the applicant relied on Article 8 of the Convention, the Division held:

“In the decision of 16 January 2009, the Deputy Minister has balanced the general interest – which is served by the protection of public safety as well as the prevention of crime and the protection of the rights and freedoms of others – against the alien’s personal interest in exercising his family life in the Netherlands with his wife and children and in this has attributed decisive weight to the general interest. In so doing, the Deputy Minister has had regard to the “guiding principles” formulated by the European Court of Human Rights in the judgment of ... Boultif v. Switzerland and the additional criteria cited in ... Üner v. the Netherlands. The Deputy Minister has attached substantial weight to the fact that Article 1F of the 1951 Refugee Convention has been held against the alien. The Deputy Minister has further taken into account that the alien has lived outside of the Netherlands for the greatest part of his life and can therefore be considered capable of independently fending for himself in another country. The Deputy Minister has further adopted the position that, although a considerable period of time has elapsed since the facts occurred for which the alien is being held responsible, in view of their gravity the interest of public order weighs more heavily. As regards the alien’s family members, the Deputy Minister has taken the view that, although at the time the decision was taken there was an objective obstacle to the family life at issue being exercised in Afghanistan, this did not alter the fact that it had not appeared that there was an objective obstacle to family life being exercised in another country. According to the Deputy Minister, it could be expected of the alien’s family members to follow him to another country. The Deputy Minister has found it to be of relevance that – at the time of the decision – three children of the alien had reached adulthood whereas it had not appeared that there existed “more than normal emotional ties” between them and the alien. Also, one of the children was – at the time of the decision – sixteen and thus, according to the Deputy Minister, did not require daily care by the parents. According to the Deputy Minister, it could also not be excluded that this child, in her parents’ company, could adjust in a country other than the Netherlands. The Deputy Minister has lastly considered that the family members could also maintain contact with the alien without the latter staying in the Netherlands.

Having noted the decision of 16 January 2009, the Regional Court has correctly not accepted the alien’s argument that the Deputy Minister had given insufficient reasons for the finding that the exclusion order does not violate Article 8 of the Convention. The fact that the alien has not been criminally convicted does not mean that the holding against him of Article 1F of the 1951 Refugee Convention is an insufficient basis for interference with his right to respect for this family life.

The grievance fails.”

No further appeal lay against this ruling.

Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.

Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia,

- he or she is a refugee within the meaning of the 1951 Refugee Convention, or

- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.

If the exclusion clause under Article 1 F of the 1951 Refugee Convention is held against an asylum seeker, the alien concerned loses any protection which might have been available under this Convention and, consequently, becomes ineligible for a residence permit for asylum under article 29 of the Aliens Act 2000 (article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000).

Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings.

Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to public safety or national security and/or that it is in the interests of the international relations of the Netherlands. An exclusion order entails a ban on residing in or visiting the Netherlands.

An exclusion order, which is immediately enforceable, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect.

Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 7,600 euros. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case and in line with the general policy rules defined by the Board of Procurators General (College van procureursgeneraal) whether to prosecute or not.

An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for an uninterrupted period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.

The implementation as from 1 January 2012 of EU Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) has no consequences in respect of persons on whom an exclusion order has been imposed and which has obtained the force of res iudicata. Exclusion orders which are being challenged in administrative appeal proceedings or in respect of which a request for revocation has been filed may be replaced by an entry ban (inreisverbod) within the meaning of the Directive and a decision to that effect can be challenged in administrative appeal proceedings.

Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien’s request for admission to the Netherlands automatically has, amongst others, the following legal consequences:

- the alien is no longer lawfully residing in the Netherlands;

- he/she is required to leave the Netherlands within four weeks;

- officials entrusted with the supervision of aliens are authorised – if the alien has not voluntarily left the Netherlands within the delay fixed for this purpose – to proceed with his/her effective removal from the Netherlands.

Under the preceding Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called “multi-purpose decision” (meeromvattende beschikking).

Pursuant to the provisions of the Benefit Entitlement (Residence Status) Act (Koppelingswet), in force as from 1 July 1998, and article 10 of the Aliens Act 2000 an alien who does not have lawful residence in the Netherlands is not entitled to any benefits in kind, facilities and social security benefits issued by decision of an administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health of pose a risk for third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth) or the provision of legal assistance to the alien concerned.

In a ruling of 3 December 2008 (LJN BG5955), the Administrative Jurisdiction Division considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi-purpose decision on a request for a residence permit, that the competence to proceed with effective removal is a legal effect ipso iure (rechtsgevolg van rechtswege) of the refusal of such a request, and that this competence is not of a discretionary nature. Although reiterating that in principle no further remedy lies against a multi-purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned, the Administrative Jurisdiction Division also accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of article 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative appeal proceedings.

A refusal on the basis of Article 1 F of the 1951 Refugee Convention to grant an asylum-related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention.

In two rulings handed down on, respectively, 2 and 9 June 2004 (nos. 200308871/1 and 200308511/1), the Administrative Jurisdiction Division of the Council of State noted that, according to article 45 § 1 of the Aliens Act 2000, a refusal to grant asylum entailed that the person concerned should leave the Netherlands voluntarily, failing which he or she could be expelled. It accepted that an alien – who was denied entry pursuant to Article 1 F of the 1951 Convention but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of Article 3 – can be denied a residence permit. It did however underline the legislator’s apparent wish to limit the size of this group as much as possible. Where an asylum seeker is able to demonstrate that Article 3 of the Convention constitutes a sustained obstacle to his or her expulsion to the country of origin,, the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of Article 3, as they had first examined whether and concluded that the exclusion clause of Article 1 F applied. The Administrative Jurisdiction Division concluded that, therefore, the immigration authorities’ examination of these cases had been incomplete.

These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but who, pursuant to Article 1 F of the 1951 Convention, is ineligible for any kind of residence permit, no act aimed at effective removal will be undertaken, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to proceed with his or her effective removal as soon as this no longer entails a risk of treatment contrary to Article 3 in the country of origin or to proceed with removal to a third State willing to accept the person concerned.

Eligibility for an eventual temporary regular residence permit may arise when the obstacle based on Article 3 for the alien’s return to his/her country of origin is of a sustained nature. In practice, such a situation may arise after a period of unlawful residence in the Netherlands of the alien concerned for at least ten years whilst Article 3 continues to stand in the way of removal to his/her country of origin and without any prospect of change in that situation in the foreseeable future, and where the alien concerned has demonstrated that despite his/her best efforts there is no possibility for him/her to relocate to a third country, and where the continued withholding of a residence permit would be disproportional.

Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant, Mr Anatoliy Pavlovych Voytenko, is a Ukrainian national who was born in 1961 and resides in the village of Nova Vodolaga, in the Kharkiv Region, Ukraine.

In September 1999, the applicant retired from the army. Upon retirement, the applicant was entitled to compensation for his uniform and to reimbursement of his travel expenses. As this compensation remained unpaid for three months, the applicant instituted proceedings in the Donetsk Garrison Military Court against the Donetsk Regional Military Registration Department (Донецкий Областной Военный Комиссариат), seeking recovery of the debt.

On 12 January 2000, the court found for the applicant (Решение Военного суда Донецкого гарнизона) and awarded him UAH 2,576.72 for the uniform and UAH 128.77 for travel expenses. The court decision was not appealed and therefore came into force on 22 January 2000. The execution writs were sent to the Voroshylovsky District Bailiffs’ Service of Donetsk (Отдел Государственной исполнительной службы Ворошиловского районного управления юстиции Донецкой области) and the enforcement proceedings started on 16 March 2000.

The debtor was given time to execute the judgment voluntarily, until 23 March 2000. After the debtor had failed to execute the judgment, the Bailiffs’ Service sent the execution writs and payment orders to the Donetsk Regional Treasury Department to withdraw the amount of the award from the debtor’s account, which revealed a lack of funds for such payments.

On 10 April 2000, the payment order and execution writ were returned to the Bailiffs’ Service without execution due to the debtor’s lack of funds.

On 17 May 2000, the enforcement proceedings in the applicant’s favour were joined to other enforcement proceedings against the debtor.

On 24 October 2000, the debtor transferred to the Bailiffs’ Service the amount of UAH 128.77 (the reimbursement of the travel expenses) to be paid to the applicant. However, this sum was only transferred to the applicant on 20 July 2001 (4 October 2001 according to the applicant). The delay, according to the Government, was caused by a lack of information about the applicant’s banking details.

On 7 November 2000 and 20 July 2001, the execution writ and the payment order for the remaining amount (the compensation for the uniform) were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds as before – a lack of funds on the designated account.

On 9 September 2001 the Bailiffs’ Service checked and attached the debtor’s accounts. The Bailiffs also checked and found that the debtor had no vehicles or real estate in its possession.

On 22 February and 6 August 2002 the execution writ for the remaining amount and the payment order were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds. The Treasury Department also noted that the payment order had expired on 6 September 2002.

In response to the applicant’s inquiry, he was informed by the Bailiffs’ Service in August 2002 that the debtor’s accounts had been frozen and that the execution of his judgment would take place as soon as State budgetary money could be transferred to it.

On 25 November 2002, joint enforcement proceedings against the debtor, including the applicant’s judgment, were initiated by the Bailiffs’ Service for a total amount of UAH 32,680.80.

On 16 December 2002, the Bailiffs’ Service attached the debtor’s account in the “Aval” Bank.

On 5 May 2003, the Bailiffs’ Service also ordered an attachment of the debtor’s funds which had accumulated in 26 accounts.

On 10 January 2004, the judgment given in the applicant’s favour was enforced in full.

On 12 January 2004, the amount awarded was transferred to the applicant’s bank account.

Article 124 of the Constitution provided as follows:

“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”

Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.

Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.

According to Article 5 of the Law, accounts other than the one designated for a particular payment, as well as the property of the Armed Forces, cannot be used to enforce a court decision.

Under clause 3.6 of the regulations, the forced recovery of funds must be executed from the same account as that of ordinary payments.

The law suspended certain provisions of the Law of Ukraine “on the social welfare and legal protection of military personnel and their families”, in particular with regard to compensation for clothing and travel expenses.