Постановление Европейского суда по правам человека от 21.10.2010 «Дело Гафоров (Gaforov) против России» [англ.]

n for his request was his fear of being sentenced to a lengthy term of imprisonment if extradited. It further noted that when questioned by FMS officials, the applicant submitted that he had been unlawfully arrested by the Tajikistani law enforcement officials and that he had fled from custody because he had been severely ill-treated. The FMS concluded that the grounds referred to by the applicant did not constitute well-founded fear of being persecuted in his home country.
46. On 13 January 2009 the applicant appealed to the Zamoskvoretskiy District Court of Moscow ("the Zamoskvoretskiy District Court") against the decision of 15 December 2008, submitting that the Tajik authorities were persecuting him on religious grounds in connection with his alleged membership of HT, a banned religious organisation. Referring to Article 3 of the Convention, he stressed that the migration authority had disregarded his consistent and convincing submissions in respect of the ill-treatment to which he had been subjected. Knowing that the Code of Civil Procedure made no provision for a detainee's transportation to court hearings concerning their civil claims, the applicant did not request the Zamoskvoretskiy District Court to secure his presence.
47. On 7 April 2009 the Zamoskvoretskiy District Court examined the applicant's complaint in the presence of his lawyer and dismissed it. The applicant was not brought to the hearing. The court found that in examining the applicant's application the Moscow FMS had obtained from the Russian Prosecutor General's Office and their Tajikistani counterpart materials concerning his criminal prosecution in Tajikistan. Those State bodies had not confirmed that the Tajikistani authorities were persecuting Tajikistani nationals because of their religious beliefs, or torturing them or treating them inhumanely in connection with criminal proceedings against them. Although the applicant had arrived in Russia in May 2007, he had applied for asylum only after his arrest with a view to extradition. In sum, the applicant had failed to adduce convincing reasons showing that he had well-founded fears of being persecuted in Tajikistan on political, racial, religious, national or ethnic grounds or because of his membership of a particular social group, and had only applied to the migration authorities because of his criminal prosecution.
48. On 20 April 2009 the applicant appealed against the decision of 7 April 2009, submitting that the Zamoskvoretskiy District Court had disregarded his detailed and consistent submissions concerning the ill-treatment to which he had been subjected while in custody in Tajikistan and his persecution on religious grounds. He also averred that the district court had disregarded a number of reports of UN bodies and NGOs attesting to the widespread practice of ill-treatment of detainees by law enforcement authorities in Tajikistan.
49. On 25 June 2009 the Moscow City Court set aside the decision of 7 April 2009 and remitted the case at first instance for fresh examination.
50. On 10 September 2009 the Zamoskvoretstkiy District Court upheld the migration authority's refusal to grant the applicant asylum, reproducing almost verbatim the reasoning of its decision of 7 April 2009. The court also noted that as the applicant only feared criminal prosecution and thus did not qualify for asylum it would not attach any weight to his submissions concerning the risk of ill-treatment in Tajikistan in the event of extradition and the general human rights situation in that country.
51. The applicant appealed against the decision. Referring to reports of various NGOs, he stressed that the problem of ill-treatment of detainees persisted in Tajikistan and that he feared his extradition not only because of the general situation in the country but also because of his own experience of ill-treatment at the hands of the Tajikistani



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