Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Rousseva;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1988 and lives in Varna.

As is apparent from the documents in the file, the applicant moved from Turkmenistan to Bulgaria in late 2001 together with her parents. In the summer of 2002 she obtained temporary residency status. Before the move, the applicant’s father had been the deputy chair of the Central Bank of Turkmenistan and later a member of a political movement which was critical of the domestic political regime. It appears that, because of her father’s political activity, members of her family were subjected to persecution in Turkmenistan and that in 2006 the applicant’s aunt was tortured and murdered in prison.

The applicant started studying at a secondary school with an intensive foreign languages curriculum in the autumn of 2002. Her father opened his own construction business in Bulgaria.

On 22 October 2002 the Turkmen authorities charged both of the applicant’s parents with aggravated embezzlement of public funds amounting to 40,000,000 United States dollars, allegedly committed between 25 July 2002 and 3 September 2002. The Turkmen prosecutor ordered their detention in relation to those charges and filed a request for their extradition with the Bulgarian authorities.

The following circumstances are undisputed between the parties.

On 4 December 2002 the applicant, aged fourteen at the time, was alone at home. At around 11 a.m. about ten police officers arrived at the family apartment. On entering the apartment the officers informed the applicant that they had come to arrest her parents. She called her parents on the telephone. It appears from the documents before the domestic courts that at that time, the parents were out shopping accompanied by their legal representative, who returned home with them. This took some time because of heavy traffic. In the meantime the officers prohibited the applicant from moving around the apartment and interrogated her in the absence of a social worker and a psychologist, despite having seen her identity document, which indicated her age.

The applicant’s parents were arrested as soon as they arrived home. The record of a court hearing in the domestic proceedings for damages (see paragraphs 27-41 below) indicates that the parents’ legal representative was present during the arrest. The lawyer stated that the police officers had not allowed the parents to collect personal belongings from the flat but that, as far as he could recall, they had allowed the applicant to hand them some personal items from the flat. He did not know where the police officers had taken the applicant’s parents but said that he thought that they had been taken to the Regional Investigation Office. In any event, he had visited them the following day but could not remember exactly where. The legal representative also stated that during the next few days his task had been to circulate between the two different prisons where the applicant’s parents were detained in order to organise their defence. He stated that he could not describe the state of the applicant at the time of the arrest, his task having been to defend her parents. He did not know what had happened to the applicant and had not seen her after her parents’ arrest.

An order for the applicant’s parents’ detention for twenty-four hours was issued by the police on 4 December 2002 and they were placed in police custody for that period. Upon their application for judicial review of that detention order, the Varna Regional Court set it aside the following day, finding it flawed as it did not indicate any legal grounds for the detention. Immediately upon their release from police custody the applicant’s parents were served with a prosecutor’s order for their detention for seventy-two hours in connection with the extradition request (see paragraph 10 above). They were detained on the spot.

On 6 December 2002, at two separate hearings, the Varna Regional Court extended their detention for a period of thirty days. The applicant’s father was taken to Varna Prison and her mother to Sliven Prison.

During and after the court hearings on 6 December 2002 the applicant’s parents were represented by the same lawyer who had been present during their arrest and was a friend and neighbour of the family.

The parties dispute what took place at the hearing when the judge enquired about the care measures in place in relation to the applicant. According to the latter, when her mother was asked by the judge through an interpreter whether there was anyone who could take care of her child, her mother replied by shaking her head. In Bulgaria nodding one’s head signifies “no” and shaking it means “yes”. According to the applicant, the judge, having interpreted the mother’s response as “yes”, noted in the record of the hearing: “The child has someone to take care of her”.

The Government, in contrast, pointed to the record of the hearing, which indicated that the applicant’s mother had replied that there was someone who could take care of her child. In their view, this was evidence of the mother’s reply. In addition, they cited an excerpt of the court’s record where the applicant’s mother had addressed the court in the following terms: “I am very surprised as I have worked as an associate professor, with a doctorate in science, for ten years, and for some reason, they want to accuse me of something that happened out there, and I’ve been living here for a whole year. We came here so that my children could study in Varna, in a democratic country, because Turkmenistan is a dictatorship; a fascist regime has begun. There is someone to take care of my child.” According to the court record of the hearing, the mother’s statement had been preceded by an intervention by the prosecutor, who had indicated that it was necessary to comply with the requirements of Article 152 § 6 of the Code of Criminal Procedure, so that if the family had no relatives or friends to care for the child, the municipality had to be informed with a view to placing her in a child-care centre, kindergarten or boarding facility (интернат).

On an appeal by the applicant’s parents, the Varna Court of Appeal lifted the detention orders in two separate decisions on 17 December 2002. The applicant’s parents were released on bail and returned home to the applicant the same day.

The request for their extradition to Turkmenistan was ultimately refused on 22 May 2003 by the Varna Regional Court. During those proceedings they were represented by the same lawyer. The refusal became final on 30 May 2003 as it had not been appealed against. The court found that the criminal proceedings against the applicants’ parents were connected to the father’s political activities and that the extradition request had been made with the aim of persecuting and punishing him for his political beliefs.

It is alleged that the applicant’s parents were arrested so rapidly that they did not manage to leave any money for her, or to give her any instructions as to whom to turn to or how to go about caring for herself. The officers did not tell the applicant for how long they were taking her parents away, where they would be taken or for what reason. According to the applicant, they indicated that they would either lock her parents in prison or deport them to Turkmenistan. Both prospects caused the applicant anguish as she had heard that prisons were horrible both in Turkmenistan and in Bulgaria. She also feared that her parents might be subject to the same treatment in Bulgaria that members of her family had endured in Turkmenistan.

According to the applicant, no one took care of her after her parents’ arrest. She only found 15 levs (about 7 euros (EUR)) in the apartment, which she used for bus tickets to go to school and for food. The money ran out fast and during the last days of her parents’ absence she did not have anything to eat. She suffered insomnia and, when she could sleep, had nightmares. Before her parents’ arrest, her mother had been the one to wake her up in the morning.

She permanently dreaded being herself sent back to Turkmenistan, where her relatives were in prison and her grandparents had been made homeless for having opposed the regime.

She alleged that she had gone several times to the police’s office for foreigners, looking for her parents. She had also tried to telephone people in Turkmenistan to ask for help. Both steps proved unsuccessful.

The applicant had to ask people in the street how to reach her school as, before the arrest, her father had always taken her there. At some stage during her parents’ detention a stray dog bit the applicant on the leg. She did not know what to do or how to seek help. Her mother took her to hospital on 18 December 2002, the day after she was released from detention, fearing that the wound might have become infected.

The Government alleged that it had not been proven that the applicant had been left alone, without an adult carer, during the period in question. The Government stressed that the applicant’s parents had been represented throughout by the same legal representative, who was, moreover, a neighbour and friend. When questioned in the context of the domestic proceedings in the applicant’s case about the exchanges in court on 6 December 2002, the lawyer indicated that he had no recollection of them (see paragraph 35 below).

On 7 March 2006 the applicant, with her parents’ agreement, brought proceedings for damages under section 45 of the Contracts and Obligations Act before the Varna Regional Court. She directed her claim against the Varna regional office of the Ministry of the Interior, the Prosecution Service, the Ministry of Justice and the Supreme Judicial Council, and sought to establish the responsibility of the authorities that had left her unattended during her parents’ detention in December 2002, in breach of the Child Protection Act.

In a decision of 27 March 2006 the court invited her to specify the grounds of her claim and to indicate the specific actions, the particular respondent and the type of damage caused to her. She specified that she was seeking compensation for non-pecuniary damage stemming from the authorities’ failure to organise support and care for her during her parents’ detention.

On 10 April 2006 the court reclassified her claim under section 49 of the Contracts and Obligations Act. It further invited her to specify the names of the officials against whom she had directed her claim, and to show that she had paid the court fees of about EUR 10,000, corresponding to 4% of the total amount of damages sought. The applicant lowered the value of her claim on 9 May 2006, paid the corresponding court fees in the amount of about EUR 6,135 and submitted additional proof to the court.

On 15 May 2006 the Varna Regional Court terminated the proceedings as it found that the applicant had failed to correct the irregularities in her claim as directed by the court on 10 April 2006.

The applicant appealed on 12 May 2006 to the Varna Court of Appeal, submitting that the respondents were the legal entities specified in her legal claim of 7 March 2006 as amended, given that they had been represented by different individuals at different points in time. The appellate court upheld the lower court’s decision on 4 October 2006.

The applicant lodged an appeal on points of law, submitting that her claim was directed against the different institutions as legal persons, as she could not know the names of the individual officials who had failed to provide her with care. She also described her condition after her parents’ detention. On 14 February 2007 the Supreme Court of Cassation quashed the lower court’s decision, finding that it had wrongly instructed the applicant to specify individual respondents. It remitted the case to the first-instance court, the Varna Regional Court, for a fresh examination.

On 25 October 2007 the applicant further specified her claim before the Varna Regional Court, in particular describing her circumstances in the immediate aftermath of her parents’ arrest and the continuing psychological trauma which she had suffered as a result. She submitted that during the hearing on 6 December 2002 on the extension of her parents’ detention, the judge had wrongly interpreted her mother’s response to the question posed regarding her care.

A psychiatric and psychological report was prepared in the context of the court proceedings in 2008. The report established that the applicant was depressed and at times aggressive. This was attributed to the shock she had experienced in relation to her parents’ detention and the ensuing uncertainty. She showed signs of accumulated tension, fear, worries, disappointment and anger towards the officials who had abandoned her to her own devices following her parents’ arrest. She had no interest in her daily life or in the future and had become withdrawn as a result of her loss of confidence in the justice system. Two additional medical expert reports were prepared in 2008. They found that the applicant was suffering from post-traumatic stress disorder, which was probably the result of what she had gone through after her parents’ arrest. The doctors stated in court that no improvement was likely in her case and that her condition was expected to become chronic. Another medical report ordered by the court in 2009 confirmed that the applicant was suffering from post-traumatic stress disorder and that, while she had been a healthy and energetic child prior to her parents’ arrest, she had experienced frequent bouts of depression thereafter and had succumbed to overwhelming feelings of self-pity, insecurity and futility of effort and engagement.

The applicant’s parents’ lawyer, who had attended the hearings relating to their detention in 2002, testified on 22 February 2008 that he did not know what had happened to the applicant during her parents’ arrest; nor could he remember anything about the circumstances relating to the question and answer in court on 6 December 2002 concerning her care. On 24 October 2008, during the same proceedings, the applicant’s teacher testified that she could not remember the applicant being absent from or having gone hungry at school. The girl had not complained to her about anything at the time.

The Varna Regional Court rejected the applicant’s claim on 27 July 2009, finding that it had not been proven that she had been left alone while her parents had been detained in December 2002. The court also held that, in the three days following the court hearing on 6 December 2002, the applicant’s mother had not sought to have the record of the hearing rectified, even though it was legally possible to do so.

Furthermore, the court held that on 6 December 2002 the Varna Regional Court had accepted that the mother had replied in the affirmative to the judge’s question regarding whether there had been anyone to care for the applicant. That question had been transmitted to the applicant’s mother with the assistance of an interpreter. Consequently, the court concluded that it had not been incumbent on the criminal justice system to act in any other way in order to protect the applicant.

The court further accepted fully the conclusions of the psychological reports on the applicant’s state of chronic post-traumatic stress disorder after the December 2002 events. However, it found that the only evidence supporting the applicant’s claim that she had been left alone in December 2002 was her parents’ testimony and that there were no other pieces of evidence in support of this assertion. Given that the mother had stated during the hearing on her detention that someone had been taking care of the child, the conditions set out in Article 152 of the Code of Criminal Procedure had not been met and, therefore, the institutions involved in the criminal proceedings had not been obliged to pursue steps towards taking the applicant into care.

The applicant appealed to the Varna Court of Appeal. She again challenged the findings of the lower court about her mother’s reply during the court hearing on 6 December 2002. She also submitted that her mother had not been in a position to see the record of the hearing, given that she had been taken back immediately to the remand prison. She further asserted that the authorities had been under an obligation to verify at the time of the arrest on 4 December 2002 and immediately afterwards whether care had been available to her, and that in any event they should not have waited two days to enquire about her situation for the first time during the court hearing. She submitted that her current state of health was the direct result of the shock and stress she had endured in connection with the arrest and the lack of provision of care. She paid about EUR 3,000 in court fees.

The appellate court confirmed the lower court’s decision on 10 December 2010. It found that, even if the applicant had been left alone after the arrest, responsibility for that could not be attributed to the police, the prosecuting authorities or the court, given that her mother had stated that there had been someone to take care of her. In addition, the post-traumatic stress disorder from which it had been established that she suffered could have been the result of additional factors not directly related to her parents’ arrest.

The Supreme Court of Cassation rejected an appeal on points of law by the applicant in a final decision of 18 January 2012, finding no grounds for allowing the appeal to be pursued.

The applicant was granted humanitarian status on 10 March 2004 and refugee status on 15 September 2007.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1967 and lives in Moscow.

The applicant has a wife and three children who live in Uzbekistan. He is a practising Muslim. Since 1996 he had regularly gone to Russia for seasonal jobs. In 2010 the applicant again went to Russia and remained in the Moscow region until his arrest on 17 March 2012.

On 14 June 2011 the investigator at the Bukhara Regional Department of National Security, Uzbekistan, charged the applicant, in absentia, with incitement to national, racial, ethnic or religious hatred, and producing and disseminating documents containing threats to national security and public order (Articles 156 § 3 (d) and 244-1 § 3 (a) of the Uzbek Criminal Code). The decision stated, in particular, that Mr A., an Uzbek national, had formed an organised criminal group in 1996-1997 which a view to disseminating ideas based on Muslim religious extremism. According to the decision, the applicant had been involved in the group while working as the head of a bakery and being responsible for providing other members of the group with work and housing.

On the same date the applicant was placed on the list of wanted persons.

On 15 June 2011 the Bukhara Criminal Court ordered the applicant’s placement in detention. On the same date the Deputy Prosecutor of the Bukhara Region issued an international search warrant in respect of the applicant.

On 17 March 2012 the applicant was arrested by police in Moscow. The record of arrest, drawn up on the same date and signed by the applicant, stated that he had been arrested in accordance with Articles 91 and 92 of the Code of Criminal Procedure as a person wanted by the Uzbek authorities on suspicion of criminal offences under Articles 156 § 3 (d) and 244 § 3 (a) of the Uzbek Criminal Code.

On 18 March 2012 the applicant was questioned and stated as follows. In Uzbekistan he had worked as a builder. As it had become difficult to find a job there, in July 1996 he went to Russia for the first time to look for a job. For three months he lived in the Moscow Region unofficially, and he then returned to Uzbekistan. Between 1996 and 2010 he went to Russia every year for several months, during which he worked unofficially on construction sites in the Moscow Region. He never applied for authorisation in respect of his temporary stays in Russia. In October 2010 he went again to Russia. He went to the village of Poyarkovo, in the Moscow Region, where he found lodgings in a mobile home with three other builders. In October-November 2010 he worked at a construction site in the town of Himki. During 2011 he had occasional jobs in Poyarkovo, including some building work for its residents, and cleaning the streets. On 17 March 2012 the applicant went to the Kazanskiy railway station in Moscow as he wanted to return to Uzbekistan. He bought a ticket to Kazan, where he planned to buy tickets for the remainder of the journey. However, before he could board the train he was approached by three men in civilian clothes who told him they were police officers and presented their badges. They informed him that he was on a wanted list in Uzbekistan and asked him to go with them to the police station located near the railway station, which he did. According to the applicant, when he spoke on the telephone with his wife in spring 2011, she had said that police officers had asked her about his whereabouts, but they had not explained why they were looking for him. In Uzbekistan he had not been persecuted for political reasons or convicted of any criminal offences, and he did not apply for asylum in Russia. The applicant stated that he did not know in relation to what imputed offence he had been placed on the wanted list.

On 19 March 2012 the Russian Ministry of the Interior received from the Uzbek Ministry of the Interior a request for the applicant to be detained pending receipt of its extradition request.

Also on 19 March 2012, the prosecutor of the Meshchanskiy District of Moscow ordered the applicant’s detention on the ground of Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). In that decision the prosecutor referred to the following elements: the applicant had been arrested in Russia on suspicion of a number of criminal offences on the basis of an international search warrant issued by the Uzbek authorities; the Bukhara Criminal Court had issued an arrest warrant in respect of him; the offences imputed to the applicant were punishable in Russia by more than one year of imprisonment; and the applicant had gone into hiding. The decision did not specify a term for the applicant’s detention. The applicant was immediately placed in SIZO no. 4 in Moscow. He was not provided with a copy of the prosecutor’s decision.

On 23 March 2012 the Moscow Region Federal Migration Service (“FMS”) informed the prosecutor of Moscow that the applicant had not applied for asylum in Russia.

On 27 March 2012 the Moscow FMS informed the prosecutor of the Meshchanskiy District of Moscow that the applicant had applied neither for Russian citizenship nor asylum. He had had residence registration in Khimki between 20 June 2008 and 13 April 2009, but he had not been registered in the Moscow Region since then.

On 29 March 2012 the Moscow Region FMS informed the prosecutor of Moscow that the applicant was not a Russian citizen and nor had he applied for asylum, and that he had had residence registration in Khimki between 20 June 2008 and 13 April 2009, but had not been registered in the Moscow Region since then.

On 12 April 2012 the applicant’s counsel appealed against the detention order of 19 March 2012. She argued, in particular, that it was unlawful as the detention had been ordered by a prosecutor and not by a court, and that Article 466 § 2 of the Code of Criminal Proceedings was inapplicable to the applicant at that stage of the proceedings.

On 19 April 2012 the FMS informed the Prosecutor General that the applicant had had residence registration in Khimki between 20 June 2008 and 13 April 2009. He had neither acquired Russian citizenship nor applied for asylum.

On 24 April 2012 the General Prosecutor’s Office of the Russian Federation received a request for the applicant’s extradition from the Deputy Prosecutor General of Uzbekistan. The request contained assurances that the applicant would not be persecuted on grounds of his political convictions, ethnic origin, religion or nationality; that he would be provided with legal assistance; and that the criminal proceedings against him would be conducted in full compliance with the laws of Uzbekistan. Furthermore, the applicant would not be extradited to a third State or be subject to criminal proceedings unrelated to the offences in respect of which his extradition was sought.

Also on 25 April 2012, the prosecutor of the Meshchanskiy District of Moscow ordered the applicant’s detention during the extradition proceedings. He referred to the extradition request received from the Uzbek authorities and relied on Article 466 § 2 of Code of Criminal Procedure. The decision did not specify a term for the applicant’s detention.

On 26 April 2012 the applicant’s counsel submitted an additional statement of appeal against the detention order of 19 March 2012. She complained, in particular, that Uzbekistan had not ratified the Protocol of 28 March 1997 to the Minsk Convention and, therefore, in relations between Russia and Uzbekistan the old version of the Minsk Convention should be applied, without the amendments made by the Protocol. Therefore, the applicant should have been released on 17 April 2012, a month after his arrest, as provided by Article 62 § 1 of the Minsk Convention.

On the same date, the Preobrazhenskiy District Court of Moscow postponed the hearing on the appeal lodged by the applicant’s counsel to 3 May 2012 in order to allow time for the applicant to receive a copy of the prosecutor’s decision of 19 March 2012.

On 27 April 2012 the applicant received a copy of the said decision.

On 3 May 2012 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s counsel’s appeal against the detention order of 19 March 2012. The court found that the applicant had been arrested in accordance with Articles 91 and 92 of the Code of Criminal Procedure and that on 19 March 2012 he had been detained pending receipt of the extradition request on the basis of Article 466 § 2 of the Code of Criminal Procedure.

On 12 May 2012 the applicant’s lawyer appealed against the decision of 3 May 2012 to the Moscow City Court. She maintained, inter alia, that the Preobrazhenskiy District Court of Moscow had failed to address the arguments she had raised in the appeal statement.

On 15 May 2012 the Meshchanskiy District Court of Moscow extended the applicant’s detention until 17 September 2012, referring to Articles 109 and 466 of the Code of Criminal Procedure, Articles 56, 58 and 60 of the Minsk Convention, and the 1957 European Convention on Extradition. The court found the prosecutor’s request for the extension of the applicant’s detention well-founded as his extradition had been requested in relation to charges concerning offences punishable under both Russian and Uzbek law; the applicant was a national of Uzbekistan with no permanent place of residence in Russia; and he had tried to abscond from the Uzbek authorities. The court also noted that the extradition check in respect of the applicant had not been completed.

On 16 May 2012 the applicant’s counsel appealed against that decision.

On 30 May 2012 the Moscow City Court upheld the decision of 15 May 2012.

On 23 July 2012 the Moscow City Court upheld the decision of 3 May 2012. It also found that the Preobrazhenskiy District Court of Moscow duly addressed the arguments raised by the applicant’s counsel on appeal.

On 17 September 2012 the prosecutor of the Meshchanskiy District of Moscow, referring to Articles 61 and 62 of the Minsk Convention, ordered the applicant’s release because the six-month maximum period of detention permitted by domestic law had expired.

Also on 17 September 2012, the General Prosecutor’s office refused to extradite the applicant to Uzbekistan, finding that the offences punishable under Article 244-1 of the Criminal Code of Uzbekistan were not regarded as criminal offences under Russian criminal law. In so far as he was charged with offences punishable under Article 156 § 3 (d) of the Criminal Code of Uzbekistan, there was no corpus delicti in the applicant’s actions for the purposes of Article 282 of the Russian Criminal Code (incitement to hatred and hostility, and degrading treatment).

On 17 September 2012 police officers escorted the applicant from the SIZO to the Krasnoselskiy District police station, where the prosecutor’s release order of 17 September 2012 was handed to him. However, the applicant was immediately re-arrested on suspicion of a breach of the residence rules under Article 18.8 of the Code of Administrative Offences, and administrative removal proceedings were initiated in respect of him.

In the records of the administrative offence and the administrative arrest, signed by the applicant, both dated 17 September 2012, he stated that he did not agree with the arrest.

By a telegram of 18 September 2012 the Prosecutor of the Russian Federation informed the prosecutor of Moscow that on 17 September 2012 the Uzbek authorities’ request for the extradition of the applicant had been refused. The telegram further stated that it was necessary to take a decision regarding the applicant’s further detention and to verify the legality of his presence on the territory of the Russian Federation.

On 18 September 2012 the Meshchanskiy District Court of Moscow refused to accept the case for examination because the case file contained no information about the outcome of either the extradition proceedings or the refugee-status proceedings

On 19 September 2012 the case file on the applicant’s administrative offence was submitted to the Meshchanskiy District Court of Moscow.

In written pleadings filed with the Meshchanskiy District Court of Moscow the applicant’s counsel argued that the applicant’s removal to Uzbekistan would be unlawful. She stated, in particular, that the applicant, as a person accused of participation in a banned religious activity, faced torture and other forms of ill-treatment if expelled to Uzbekistan. The applicant’s counsel also referred to the Court’s case-law concerning expulsion to Uzbekistan and recent reports by international NGOs, according to which detainees charged with banned religious activities were subjected to systematic torture and other forms of ill-treatment in Uzbekistan. She further stated that the applicant had applied for refugee status in Russia and the proceedings were still pending; in accordance with the Refugee Act of 1993 and the 1951 Geneva Convention on the Status of Refugees, the applicant could not be removed from Russia until the end of those proceedings.

On 19 September 2012 the Meshchanskiy District Court of Moscow found the applicant guilty of a breach of the residence rules, imposed a fine in the amount of 2,000 roubles (RUB) (approximately 50 euros) and ordered his administrative removal from the Russian Federation. It found, in particular, that the applicant had arrived in Russia on 20 October 2010 with a view to finding a job. However, he had made no attempt to regularise his stay in Russia by applying either for a temporary residence permit or for a work permit. Furthermore, he had not left Russia upon the expiry of the maximum ninety-day period for which foreign nationals who did not require a visa were authorised to stay in Russia. The applicant admitted at the hearing that he had been residing in Russia unlawfully, but stated that for a long period of time he had been unable to regularise his situation because his employer had had possession of his documents. However, he had received his passport at the end of 2011 and had still not taken any steps to regularise his residence. The court further stated that when imposing the penalty it had taken into account the applicant’s situation, including his lack of a stable income and residence in Russia, the length of his stay in Russia without a permit, and the fact that he had been aware that a permit was required.

The court found that the applicant’s allegations regarding a risk of ill-treatment in the event of his removal to Uzbekistan were “based on assumptions” and were “not corroborated by the case-file materials”. It also dismissed the applicant’s counsel’s argument that the applicant could not be subject to administrative removal because he had a pending application for refugee status. The court stated in this connection that on 28 August 2012 the Moscow FMS had dismissed his application and, as of the date of the hearing, the applicant had not appealed against that decision. The court further held that, taking into account the applicant’s financial situation and also the need to ensure his removal from the territory of the Russian Federation, the applicant was to be placed in custody until the “resolution of the matter relating to his administrative removal”. Following that decision the applicant was placed in a detention centre for foreigners in Moscow.

On 28 September 2012 the applicant’s counsel appealed against the decision of 19 September 2012 to the Moscow City Court. She reiterated the arguments she had advanced before the first-instance court and complained that the first-instance court had not made an adequate assessment of the risk of ill-treatment to which the applicant might be subjected if he was removed to Uzbekistan. She pointed out that the Meshchanskiy District Court of Moscow had refused to examine the reports by international NGOs relating to the human rights situation in Uzbekistan and had ignored the Court’s position on the matter.

On 2 October 2012 the applicant requested the Court to apply Rule 39 of the Rules of Court.

On 4 October 2012 the Court granted the applicant’s request for the application of interim measures under Rule 39 of the Rules of Court and indicated to the Government that the applicant should not be expelled to Uzbekistan for the duration of the proceedings before the Court.

On 8 October 2012 the Prosecutor General instructed the prosecutor of Moscow to comply with the Court’s indications regarding interim measures under Rule 39 of the Rules of Court.

On 9 October 2012 the prosecutor of Moscow instructed the prosecutor of the Meshchanskiy District of Moscow to apply to the Meshchanskiy District Court of Moscow for the suspension of the applicant’s removal to Uzbekistan in view of the application by the Court of Rule 39 of the Rules of Court.

On 10 October 2012 the prosecutor of the Meshchanskiy District of Moscow requested the Meshchanskiy District Court of Moscow to suspend the applicant’s removal to Uzbekistan following the application by the Court of Rule 39 of the Rules of Court.

On the same date, the Moscow FMS informed the Moscow City Court that the applicant was not registered in the migration register and nor had he been issued with a work permit.

Also on 10 October 2012, the Moscow City Court upheld the decision of 19 September 2012, finding it lawful and justified. It held that the first-instance court had been right in finding that the applicant’s actions had constituted an administrative offence. The appeal court further dismissed the argument that the applicant could not be subject to administrative detention in view of his application for asylum as (i) he had applied for asylum only after being arrested; and (ii) the reasons he had put forward for his reluctance to return to Uzbekistan did not constitute well-founded fears of persecution on grounds of his religion, nationality, ethnic origin, belonging to a particular social group, or political convictions.

On 25 October 2012 the Meshchanskiy District Court of Moscow ordered the suspension of the execution of the decision of 19 September 2012 pending the examination of the application by the prosecutor of the Meshchanskiy District of Moscow.

On 13 December 2012 the Moscow City Court returned the application by the prosecutor of the Meshchanskiy District of Moscow without examination on the ground that under Article 30.12 of the Code on Administrative Offences the prosecutor was not authorised to apply for the suspension of a final judicial decision.

On 15 December 2012 the applicant’s counsel sent an application to the Meshchanskiy District Court of Moscow pursuant to Article 31.8 of the Code of Administrative offences. She sought clarification regarding the execution of the decision of 19 September 2012 in the light of the application by the Court of Rule 39 of the Rules of Court. The Meshchanskiy District Court of Moscow received the application on 28 December 2012. In the absence of a response, the applicant’s counsel resubmitted the application on 19 March 2013.

On 8 April 2013 the Meshchanskiy District Court of Moscow wrote to the applicant’s counsel informing him that the court found that there were no grounds to consider her application under Article 31.8 of Code on Administrative Offences. Therefore, it was to be examined as a general application. The court advised the applicant’s counsel to contact the competent executive authorities with her queries concerning the execution of the decision of 19 September 2012. The letter was sent on 18 April 2013.

On 20 April 2012 the applicant applied for refugee status in Russia.

On 28 August 2012 the Moscow FMS refused to grant him refugee status. The FMS noted that although the applicant had substantiated his application by an alleged risk of persecution on religious grounds, he stated that he had left Uzbekistan for economic reasons. However, he feared that if he returned there the Uzbek law-enforcement agencies would extract from him under torture a confession to crimes he had not committed. It further analysed at length the applicable Uzbek laws on the prohibition of torture and freedom of religion, as well as information on the co-existence of various religions in Uzbekistan. The FMS noted that the applicant had not left Uzbekistan on any of the grounds listed in section 1 § 1 (1) of the Refugees Act. Moreover, it appeared that his wish to not return to Uzbekistan was based not on a fear of being persecuted on grounds of religion, nationality, ethnic origin, belonging to a particular social group, or political convictions, but rather on his fear of being subjected to punishment for the offences he was charged with in Uzbekistan. Therefore, he did not meet the criteria set out in section 1 § 1 (1) of the Refugees Act.

On 26 September 2012 the applicant appealed against that decision to the FMS.

On 10 November 2012 the FMS dismissed the applicant’s appeal against the decision of 28 August 2012. It endorsed the reasoning of that decision and added that although, according to the applicant, since 2002 he had regularly come to Russia for seasonal jobs, he had only had a work permit for the period between 30 May 2008 and 28 September 2010.

On 17 January 2013 the applicant appealed against that decision to the Basmanniy District Court of Moscow. He argued that as criminal proceedings had been instituted against him in Uzbekistan, his fears of persecution on religious grounds were well-grounded.

On 1 April 2013 the Basmanniy District Court of Moscow dismissed the applicant’s appeal. The court noted that although the human rights situation in Uzbekistan was “ambiguous”, it was a party to numerous international treaties on the protection of human rights and regularly submitted reports to the UN on its compliance with such treaties. The court further stated that a decision concerning refugee status should be taken not on the basis of the general situation in the country, but on the basis of the applicant’s specific circumstances. The FMS had thus been right to dismiss the application as the applicant had failed to provide any evidence that in the event of his return to Uzbekistan there was a real risk of his being subjected to ill-treatment.

On 13 May 2013 the applicant appealed against that decision to the Moscow City Court. The appeal hearing was scheduled for 30 July 2013.

The Court has not been informed of the outcome of the appeal proceedings.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant company, VP-Kuljetus Oy, is a Finnish limited liability company which has its seat in Rauha. The second and third applicants, Mr Kyösti Juhani Hynninen and Mr Arto Sakari Piiparinen, are Finnish nationals who live in Ruokolahti and Helsinki respectively. The applicants are represented before the Court by Mr Kari Uoti, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The second and third applicants are the owners and the only board members of the applicant company. The applicant company was in the transport business in Russia. Before returning from Russia, the tanks of the company trucks were normally filled with diesel and legally imported into Finland. Such diesel was tax and customs free and there was no obligation to inform the authorities about it. However, such diesel could not be used in any other vehicles unless customs and excise duties were paid.

Between December 2000 and December 2006 some of the diesel brought to Finland in the applicant company’s trucks was removed from the tanks and transferred to a container situated on the company premises. From there the diesel was further transferred to other company cars, as well as to the personal cars of the second and third applicants. No customs and excise duties or other fees were paid.

On 15 May 2007 the Customs Office ordered the applicant company, jointly with the second and third applicants, to pay customs duties, valueadded tax and excise in the amount of 61,520.24 euros (EUR) for the years 2004, 2005 and 2006. These import taxes were levied because the diesel imported from Russia had been removed from the tanks of the trucks and transferred to a container for purposes other than the repair of the vehicles in question. Apparently this decision was not appealed against.

On 19 March 2008 the public prosecutor brought charges against the second and third applicants for aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the time between December 2000 and December 2006. They were accused of aggravated tax fraud because, as board members of the applicant company together with a third person and in their personal capacity, they had participated in tax evasion by transferring 234,138 litres of diesel imported from Russia to other cars without paying any import taxes, namely customs duties, value-added tax and excise. The amount of evaded taxes had totalled EUR 115,839.10.

On 3 October 2008 the Lappeenranta District Court (käräjäoikeus, tingsrätten) convicted the second and third applicants as charged and sentenced both of them to an 8-month suspended prison sentence. They were ordered to pay jointly to the customs authorities EUR 54,318.29 plus interest as compensation for different taxes evaded during the years 2001, 2002 and 2003.

By letter dated 30 October 2008 the second and third applicants appealed to the Kouvola Appeal Court (hovioikeus, hovrätten), requesting that the District Court judgment be quashed.

On 4 June 2009 the Kouvola Appeal Court upheld the District Court judgment.

By letter dated 25 June 2009 the second and third applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the charges be dismissed and the compensation claims be rejected.

By letter dated 3 July 2009 the second and third applicants referred to a recent case of the Court concerning ne bis in idem and requested the Supreme Court to take it into account as an alternative to their primary claims.

On 22 December 2009 the Supreme Court refused the second and third applicants leave to appeal.

On 5 September 2007 the Vehicle Administration (Ajoneuvohallintokeskus, Fordonsförvaltningscentralen), the current Finnish Transport Safety Agency (Liikenteen turvallisuusvirasto, Trafiksäkerhetsverket), imposed on the applicants a fuel fee (polttoainemaksu, bränsleavgift) and an additional tax (lisävero, tilläggsskatt) concerning the years from 2002 to 2006 for having used more leniently taxed diesel than diesel oil in their vehicles without giving any prior notification to the authorities. The fee and the additional tax for the applicant company amounted to EUR 1,827,570. The second applicant was ordered to pay EUR 51,381 and the third applicant EUR 99,045 respectively in fuel fees and additional tax for having used untaxed diesel in their private cars.

By letter dated 14 September 2007 the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming that the taxes and fees should be quashed as they had no legal basis.

On 24 September 2007 the Vehicle Administration decided to stay the order to pay the above fuel fees and additional taxes until the Administrative Court could decide on the enforcement of the taxes in question.

On 16 October 2007 the Administrative Court stayed the attachment of the above fees and taxes by allowing a seizure but prohibiting their sale. This stay on enforcement was to remain in force until the final decision in the case.

On 2 July 2008 the Administrative Court rejected the applicants’ appeals.

By letter dated 30 August 2008 the applicants appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court.

During the written phase, the Supreme Administrative Court asked the parties ex officio to comment on the Court’s recent judgment Ruotsalainen v. Finland in the context of the present case. The tax authorities affirmed in their statement of 6 May 2010 that the subject of the tax fraud proceedings and the obligation to pay fuel fees did not concern the same set of events but events which were distinct in time and place. The applicants argued in their submission of 11 September 2010 that all sanctions imposed in the case (taxes, fees, order to pay compensation and criminal sanctions) were based on the same set of facts.

On 16 September 2011 the Supreme Administrative Court granted the applicants leave to appeal but rejected their appeals. It thus upheld the Administrative Court’s decisions. It found that the fuel fees concerning the years 2002 and 2003 had been imposed threefold and those concerning the years 2004 to 2006 had been increased by 50%. The second and third applicants had been convicted of aggravated tax fraud for failure to pay import taxes on diesel imported between 2000 and 2006 by a judgment that had become final on 22 December 2009. As the criminal proceedings concerned failure to pay import taxes on the imported diesel and the fuel fees concerned the use of such diesel after the importation into Finland, it was not a question of the same matter. The ne bis in idem principle had thus not been violated.

According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen; as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a taxation authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years.

If a more leniently taxed oil than diesel oil is used as motor fuel, prior notice of such intended use must be given and additional tax and/or a fuel fee shall be paid. According to the Fuel Fee Act (laki polttoainemaksusta, lagen om bränsleavgift, Act no. 337/1993), which was in force until 31 December 2003, the fuel fee was not collected on the fuel contained in the tank of a vehicle when the vehicle was imported. If the use of a more leniently taxed fuel than diesel oil was discovered in a vehicle during a time in respect of which no prior notification had been given, the fuel fee collected was to be three times the normal amount. The current Fuel Fee Act (Act no. 1280/2003), which entered into force on 1 January 2004, contains the same provisions except for the increased amount of the fee. The fee shall be increased by a maximum of 30% if no prior notification has been made, by a maximum of 50% if the use is repetitive and at most it can be doubled in aggravated cases.