On May, 12, 2010 in the European Court of Human Rights a decision on the case “Khodzhayev against Russia” was announced (application No 52466/08).

The European Court acknowledged the violation of Article 3 and paragraphs 1 and 4 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Russian Federation with respect to the applicant – a citizen of Tajikistan Zikrullokhon Ismatulloyevich Khodzhayev.

The case was led by the lawyers of HRC “Memorial”. The applicant’s interests on national level were represented by a lawyer Dionisiy Lomakin, the documents for the European Court were filed by Natalia Dorina and Grigor Avertisyan.

The applicant, a practicing Muslim, was groundlessly accused of being related to religious–political organization Hizb ut-TAhrir, which is banned in Russia and Central-Asian countries, in Tajikistan in 2000. Trying to escape the pursuit, he fled to Russia in 2001. On November, 28, 2007 Khodzhayev was arrested in Moscow region, and was not informed of the reasons for his arrest. In the course of two weeks he was deprived of access to a lawyer’s assistance. On November, 30, 2007 Odintsovo Town Court of the Moscow region concluded on the applicant’s placement in custody pending his extradition, while the period of custody was not specified. As a result, Khodzhayev was only released not long before the ECHR’s conclusion announcement – on April, 23, 2010.

In January, 2008, while staying in custody, Khodzhayev lodged a request to Moscow Department of the Federal Migration Service for political asylum, and turned to UNHCR as well. The UNHCR staff were not allowed to Khodzhayev’s insulator for a few months. In May, 2008, the migration service rejected his asylum request. He wasn’t successful in challenging this conclusion in court.

On June, 4, 2008, the Deputy Prosecutor General of Russia ordered the applicant’s extradition to Tajikistan to face criminal prosecution. The order stated that the applicant had been charged with membership of a proscribed religious-extremist organization and dissemination of material containing incitement to religious hatred. On August, 22, 2008, Moscow Town Court and on 28, October of the same year the Supreme Court of Russia supported this order. Khodzhayev’s lawyer was forced to turn to the European Court of Human Rights with a request to apply Rule 39. On October, 31, 2008 the Court imposed a ban on his extradition until final conclusion on his claim.

In the conclusion of the “Khodzhayev v. Russia” case the European Court indicated that the applicant’s statements that in case of his extradition to Tajikistan he, in the breach of Article 3 of the European Convention, could have become a victim of tortures or inhuman treatment, are supported by the evidence from objective sources: UN Committee Against Torture, Human Rights Watch, Amnesty International, US Department of State. The Court wasn’t convinced by the arguments of the Russian government that ratification of the main documents on human rights by Tajikistan eliminates the possibility of exercising tortures with regard to the applicant and that the Tajik Prosecutor General’s Office has supplied adequate guarantees.

The Court stated that cruel treatment of the detained has been a permanent problem of Tajikistan and that the Russian authorities have not implemented a proper investigation of the probable cruel treatment in the requesting country. As a result, the Court concluded that the extradition in respect of the applicant would entail the breach of Article 3 of the Convention.

The Court also concluded that the paragraphs 1 and 4 of Article 5 of European Convention had been violated with regard to the applicant, inasmuch as after 6 months from the date of his arrest the applicant had been kept in custody without any legal grounding, and in the whole course of detention he had no factual opportunity for a judicial inspection of his custody legitimacy.

The Court obliged the Russian Government to pay 15,000 EUR of compensation to the applicant.

The Russian Federation is entitled to submit a request for a reconsideration of the case in a three-month period to the Supreme Chamber of the European Court.

The Civic Assistance Committee is helping Zikrullokhon Ismatulloyevich Khodzhayev to receive a temporary asylum and to be placed in migration registry.

For further information: Memorial