The analysis below is based on the work of lawyers of the ‘Right to Asylum’ project.^[1] It complements the brief explanation of the extradition and administrative removal procedures, as well as the asylum proceedings included in Shelter from the storm? The asylum, refuge and extradition situation facing activists from the former Soviet Union in the CIS and Europe first published in 2014^[2].

According to the well-established case law of the European Court of Human Rights the obligation of non-refoulement to face a real risk of torture, inhuman or degrading treatment is absolute and cannot be overridden by considerations of public interest^[3]. Thus, the issue of availability of effective remedies against the violation of human rights is crucial, especially in the removal cases where the potential harm is of irreversible nature. Such remedies must ensure the rigorous scrutiny of the claims to be subjected to prohibited treatment in a country of destination and have a suspensive effect on the execution of a removal order. The requirements to an effective remedy in a case of extradition or expulsion were formulated in the jurisprudence of the European Court of Human Rights^[4] and can also be found in the practice of the UN Human Rights Committee. According to the latter ‘a remedy which is said to subsist after the event which the interim measures sought to prevent occurred is by definition ineffective, as the irreparable harm cannot be reversed by a subsequent finding in the author’s favour by the domestic remedies considering the case’^[5].

As the European Court recently noted, ‘the Russian legal system – in theory, at least – offers several avenues whereby the applicant’s removal … could be prevented, given the risk of ill-treatment he faces [in the destination country]’^[6]. However, most of the Russian cases before the Court have demonstrated that the claims under Article 3 (prohibition of torture) of the European Convention on Human Rights and Fundamental Freedoms are not adequately considered in the domestic extradition, administrative removal (as penalty for violation of migration rules) and asylum proceedings^[7].

Additionally, some of the cases have shown that a person wanted by law-enforcement authorities of the CIS countries could be deliberately stripped of any guarantees and denied any remedies by use of a speedy deportation procedure whereby the time and effort consuming extradition procedure is often replaced.

Extradition: ineffective remedies

On 10 January 2017 the European Court of Human Rights delivered a judgement in I.U. v. Russia^[8] where it found a would-be violation of Article 3 of the European Convention if the applicant were to be returned to Uzbekistan. This is the first extradition case against Russia considered by the Court sitting as a Committee composed of three judges. Thus, the answer to the question of whether a forced return to Uzbekistan of a person charged there with extremist crimes constitutes a violation of Article 3 is now the subject of well-established case law of the Court.

Though the Court tends not to examine the complaints concerning the risk of torture under Article 13 (right to an effective remedy), this judgement, as many others before and after, spotted a well-known problem of ineffectiveness of the remedies against violation of rights guaranteed by Article 3.

The Court found that in the extradition proceedings the Russian domestic authorities did not carry out a rigorous scrutiny of the applicant’s claim that he faced a risk of ill-treatment in his home country. The Court came to this conclusion having considered the national courts’ ‘simplistic rejection – without reference to evidentiary material – of the applicant’s claims as hypothetical and lacking specific indications as to the level of risk, together with the comment that the situation in a requesting state might change over time’. The Court also noted and called tenuous the domestic courts’ ‘unquestioning reliance on the assurances of the Uzbek authorities, despite their formulation in standard terms’. It was stressed with references to Abdulkhakov v. Russia^[9] and Tadzhibayev v. Russia^[10] that the Court had consistently considered similar assurances unsatisfactory.

Thus, despite the Court’s extensive jurisprudence, findings and criticism that are repeated in case after case, the Russian law-enforcement authorities and courts do not protect Article 3 rights in the vast majority of cases where a person is wanted by another CIS member country^[11]. The authorities continue to dismiss claims under Article 3 in a summary fashion and to rely on assurances of the country requesting extradition, though they do not even come close to satisfying the Othman^[12] test.

The possible underlying reason is that the Russian authorities accord priority to their obligations under the Minsk Convention^[13] over the absolute obligation of non-refoulement to face a real risk of torture, inhuman or degrading treatment.

Extradition in disguise: no remedies at all

On 2 September 2017, Mr. Boltayev^[14], a Tajikistani national and an asylum seeker whose extradition had been sought by Tajikistan, was released from the pre-trial detention facility in Moscow as the maximum term provided by law for the detention pending extradition had elapsed. He was immediately rearrested and then deported to Tajikistan within 48 hours due to an undesirability decision^[15] of the Federal Security Service of Russia. He and his lawyers were not informed of the deportation order until Mr. Boltayev was brought to the airport; so he had no chance of lodging an appeal against the order or asking to suspend its execution. In fact he was unable even to call his relatives and representatives as his cell phone and other belongings were not returned to him by the pre-trial detention facility. At the same time the police and migration authority were giving misleading information to Mr. Boltayev’s relatives and lawyers concerning his whereabouts and the proceedings that were going to take place.

Mr. Boltayev had requested refugee status in early June 2017 by a letter to the Moscow migration authority while in detention. However, according to the regulations, the applicant is considered as an asylum seeker only after an official interview conducted by a migration authority officer. Mr. Boltayev had not been visited by a migration authority officer to complete the procedure for over two months until his actual removal. Thus, the migration authority deliberately exempted him from the protection against non-refoulement afforded to asylum seekers by law, and ordered his deportation.

Regrettably it is a common practice of the Russian authorities to deny access to the asylum proceedings and to substitute extradition, if it fails, with administrative expulsion (a penalty imposed on a foreigner by a court at the request of police or migration authorities for violation of migration rules) or deportation proceedings. The recent tendency to resort to deportation is very alarming. While administrative expulsion proceedings have at least the potential of eventually becoming an effective remedy against violation of the right not to be subjected to prohibited treatment in case of removal (according to the Code of Administrative Offences the decision is taken by a court after hearing the defendant, and an appeal has a suspensive effect on the execution thereof), the deportation proceedings provide no room for guarantees whatsoever.

A migration authority makes a deportation order automatically if a foreigner does not leave Russia voluntarily within three days of the adoption of the undesirability decision in his or her respect^[16]. The latter might be based on the conclusion by the security services that a specific person poses a threat to national security and public order. In this case the particular grounds to believe, and evidence proving, that a person is threatening security are normally classified and thus not disclosed to him or her (or even to the court if a person brings an action against the decision). The threat to public order is presumed if a person had been imprisoned in Russia, and in this case the Ministry of Justice takes a decision following the person’s conviction to imprisonment. The law directly specifies that foreigners who have served a criminal sentence in a Russian prison are to be deported immediately after being released and thus, foreigners of this category are deprived of any chance to leave the country voluntarily before the adoption of a deportation order by force of law (paragraphs 11 and 12 of Article 31 of the Federal Law on the Legal Status of Foreign Citizens in the Russian Federation).

It is obvious from the above that an undesirability decision is adopted without any involvement of the person concerned. Thus, a foreigner cannot refute the findings leading to undesirability and advance arguments against his or her forced removal. This is important given that forced removal is practically unavoidable if an undesired alien does not leave Russia.

Further, there exists no special appeal procedure and the decision can be appealed against in accordance with general rules of the new Code for Administrative Procedure (CAP) that entered into force in September 2015 (Chapter 22, challenging decisions of officials and public bodies). However, filing such an appeal does not anyhow prolong the three-day period during which a foreigner must leave Russia and does not prevent the adoption of a deportation order. Moreover, the case of Mr. Boltayev shows that sometimes the authorities do not give a foreigner any time at all to leave the country voluntarily. Thus, after the maximum term of detention of Mr. Boltayev pending extradition elapsed, he was arrested again and detained at the police station until the very moment the deportation order was issued in his respect. In other words, he was not given any chance to depart voluntarily. In this regard it is also important to note that the Russian laws regulating deportation^[17] do not stipulate that a foreigner should have any real ability to leave Russia voluntarily within the three-day period provided by these laws.

In addition, the deportation procedure does not provide for any time-lapse between notification of the deportation order and its enforcement; therefore a person can be, and in practice often is, deported immediately after the deportation order is issued.

Again, the law does not provide for a specific appeal procedure (Article 31 of the Law on the Legal Status of Foreign Citizens in the Russian Federation), and a deportation order, as with an undesirability decision, may be challenged in accordance with general rules of the Chapter 22 of the CAP.

However, lodging an appeal does not automatically suspend the execution of a deportation order. According to the CAP (Articles 85-87), upon a request for application of provisional measures, a judge may suspend execution of the decision and must take the decision within one day. Lodging such request does not suspend the enforcement of a deportation order. Granting such provisional measures, in theory, does suspend the enforcement of the deportation order; however the lawyers of the Institute for Human Rights, who represent Mr. Boltayev and many other applicants to the ECtHR, have not had a chance to observe this mechanism being effectively applied in practice so far.

For example, the applicant in O.O. v. Russia (application no. 36321/16, case pending before the European Court) was denied application of the provisional measures under Article 85 of the CAP with reference to public order and public interest in executing the deportation order, which predominated, in the Russian court’s view, over his claims. In case of S.S. v. Russia (application no. 2236/16, case pending before the European Court) multiple requests for application of the provisional measures were never considered by a court.

Finally, it should be pointed out that the authorities do not analyse on their own initiative any potential harm that might be inflicted upon the deported person by execution of the deportation decision. They do not tend to do so either even if requested by a person who seeks asylum or supposes that deportation order might be taken in his or her respect and submits arguments to prevent it (e.g. an alien who is about to complete his or her sentence in a Russian prison and fears to be returned to home country due to persecution).

Asylum: failed remedy

Though in many cases before the European Court the Russian Government claims that the asylum proceedings (refugee status and temporary asylum proceedings regulated by the Law on Refugees) afford effective protection from removal, in fact they do not. In many cases including the above-mentioned cases of Mr. Boltayev and O.O. v. Russia deportation orders were issued after the applicants applied for refugee status and before the decisions on their applications were adopted. They and many other persons in detention were denied access to the proceedings having their applications simply ignored or not considered on the merits. The access to the asylum proceedings has been denied in most cases of detained seekers whose interests the authors have represented since the Federal Migration Service was dissolved in April 2016 and its functions including the consideration of asylum requests were taken over by the Ministry of Interior.

In case of U.A. v. Russia (application no. 12018/16, case pending before the European Court) the deportation order was issued by the same regional office of the migration authority, as the one examining the applicant’s request for refugee status and temporary asylum. Thus, it was for the same officers to decide when to schedule the date of interview and when to issue the deportation order.

The Law on Refugees expressly guaranties non-refoulement only to those who have been recognised as refugees or granted temporary asylum and seekers of refugee status^[18].

Those who applied for temporary asylum are not protected pending the final decision. But even seekers of refugee status are considered by law enforcement as protected from refoulement only until the federal migration authority dismisses their applications. The subsequent judicial proceedings are often ignored and thus do not protect from removal.

Therefore, having examined the law and its application in practice, the European Court found in the recent case of Allanazarova v. Russia^[19] that refuge or temporary asylum procedures do not in practice provide an opportunity of rigorous scrutiny of claims under Article 3, do not have suspensive effect and therefore are not effective remedies in respect of such claims.

The above analysis shows that although the Russian legal system provides certain remedies in theory, they do not work in practice in the majority of expulsion cases. Despite the European Court’s repeated criticism in case after case, the Russian authorities and courts fail to protect the rights guaranteed by Article 3 of the Convention. The use of the deportation procedure instead of the extradition or the administrative expulsion procedures in several recent cases is particularly alarming as deportation proceedings hardly provide any legal guarantees for a foreigner at all. The situation is further aggravated by the ineffectiveness of asylum proceedings.

Thus, a number of steps should be taken to improve the current situation.

First of all, the regulation must be amended to oblige the migration authorities to consider the potential harm that could be inflicted upon a foreigner by return to the country of origin when adopting a deportation order. Further, the law should specify a period for a deportation order to enter into force and stipulate that challenging of an order has a suspensive effect on its execution.

As regards the asylum proceedings it must be ensured that the migration authorities provide access to the asylum procedure as soon as practicable. Additionally, the Law on Refugees should be amended so as to expressly protect from refoulement seekers of temporary asylum and those who are challenging the refusal to grant a refugee status or temporary asylum before the courts of first and second instances.

[1] The ‘Right to Asylum’ project was launched in 2010 by Elena Ryabinina, a prominent human rights activist, in the Russian non-governmental organization ‘Institute for Human Rights’. It has its headquarters in Moscow and works in cooperation with lawyers from all over Russia. The principal partner and sponsor of the project is the Russian Office of the UNHCR. The aim of the ‘Right to Asylum’ project is to effectively protect asylum seekers from forcible removal to their country of origin where they are persecuted on political, religious or ethnic grounds or where they will be subjected to treatment incompatible with human rights standards (torture, arbitrary detention, flagrant denial of justice and so on). The project operates all over Russia providing legal assistance to asylum seekers who try to get access to the Russian territory and to those who are to be extradited, deported or in other way forcibly removed from Russia. The lawyers of the project represent the applicants before the national authorities and at the European Court of Human Rights or the UN Human Rights Committee. There are constantly more than 50 pending cases within the frame of the project concerning removals to Uzbekistan, Tajikistan, Kyrgyzstan, Azerbaijan, Syria, Iraq, Somalia and South Sudan at various national and international stages of the proceedings. Every year the lawyers of the project provide legal assistance to over a hundred asylum seekers.

Since its foundation, the project has protected a great number of applicants and the European Court of Human Rights has delivered over 40 judgments on the project’s cases finding violations of Article 3 (prohibition of torture), Article 5 (right to liberty and security) and Article 6 (2) (presumption of innocence) of the European Convention on Human Rights. Among the judgments are those of precedent-setting significance (Savriddin Dzhurayev v. Russia, Azimov v. Russia, Kholmurodov v. Russia, I.U. v. Russia and other).

[2] Daria Trenina in Adam Hug ed., Shelter from the storm? The asylum, refuge and extradition situation facing activists from the former Soviet Union in the CIS and Europe, Foreign Policy Centre, April 2014, http://fpc.org.uk/publications/shelter-from-the-storm

[3] ECtHR. Saadi v. Italy, Application no. 37201/06, GC, §138, 28 February 2008.

[4] ECtHR. Yuldashev v. Russia, Application no. 1248/09, §§ 110-111, 8 July 2010.

[5]HRC, Sholam Weiss v. Austria, Communication No. 1086/2002, U.N.Doc. CCPR/C/77/ D/1086/2002, 3 April 2003, § 8.2.

[6] ECtHR. I.U. v. Russia. Application no. 48917/15, § 32, 10 January 2017.

[7] The cases concerning the extraction of ethnic Uzbeks to Kyrgyzstan, whose extradition have been recently denied or annulled by the courts with references to Article 3 of the Convention, are an exception.

[8] ECtHR. I.U. v. Russia. Application no. 48917/15, 10 January 2017.

[9] ECtHR. Abdulkhakov v. Russia. Application no. 14743/11, §§ 149-50, 2 October 2012.

[10] ECtHR. Tadzhibayev v. Russia. Application no. 17724/14, § 46, 1 December 2015.

[11] The exemption is extradition of ethnic Uzbeks to Kyrgyzstan that is often denied or prevented by courts quashing extradition orders with references to persecution on ethnic grounds and the risk of torture.

[12] ECtHR. Othman (Abu Qatada) v. UK. Application no. 8139/09, 17 January 2012. For explanation of the test see ‘Shelter from the storm? The asylum, refuge and extradition situation facing activists from the former Soviet Union in the CIS and Europe’/ Edited by Adam Hug/First published in April 2014 by the Foreign Policy Centre at http://fpc.org.uk/publications/shelter-from-the-storm

[13] Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, 1993. In force between: Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Turkmenistan, Tajikistan, Ukraine, Uzbekistan.

[14] Daria Trenina supervises the work of lawyers who represent Mr. Boltayev before the domestic authorities, both authors represent him before the ECtHR.

[15] A formal decision adopted by the Ministry of Justice of Russia, Federal Security Service of Russia or some other executive bodies in respect of a foreigner illegally residing in Russia or a foreigner who is prohibited from entering Russia or in regard to a foreigner legally staying in Russia if such foreigner was found to pose a threat to national security, public order or public health (Article 25.10 of the Law on the Procedure of Exit from the Russian Federation and Entry into the Russian Federation of 15.08.1996 (No. 114-FZ)).

[16] A deportation order may be also issued in some other cases that are beyond the scope of this article.

[17] Law on the Procedure of Exit from the Russian Federation and Entry into the Russian Federation and Law on the Legal Status of Foreign Citizens in the Russian Federation.

[18] Paragraph 1 of Article 10 and paragraph 4 of Article 12 of the Law on Refugees of 19.02.1993 (No. 4528-I).

[19] ECtHR. Allanazarova v. Russia, Application no. 46721/15, §§ 111, 114, 115, 14 February 2017.