CASE OF NABID ABDULLAYEV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
6. The applicant was born in 1961 and lives in the town of Artyom, in the Primorye Region. 7. The applicant is a Kyrgyz national of Uzbek ethnic origin. He originally lived in the town of Osh in Kyrgyzstan. 8. In June 2010, which was a time of mass disorders and interethnic clashes in the region, the applicant had been the head of the territorial board of a municipal authority in which most residents were ethnic Uzbeks. He was, according to him, considered as a leader of the local Uzbek community. 9. After the clashes, the applicant had repeatedly been invited by the Kyrgyz investigative bodies for questioning as a witness. 10. In June 2011 the applicant learned that criminal proceedings had been opened against him (see paragraph 12 below). The applicant submits that law-enforcement officers started to extort money from him, threatening him with imprisonment. Due to this he moved to a different city in Kyrgyzstan, to his sister’s home, where he stayed for several months. 11. Afterwards, in March 2012, the applicant left Kyrgyzstan for Russia. He settled in the Primorye Region, and after obtaining a work permit, worked as a sports instructor. 12. On 16 June 2011 the Kyrgyz authorities charged the applicant with the commission of violent crimes in June 2010 (attempted murder, participation in mass disorders and unlawful firearms trafficking) and ordered his arrest. It appears that when the authorities eventually tried to execute the arrest order, the applicant had left the country (see paragraphs 10 and 11 above). The applicant was therefore put on the international wanted list. 13. On 14 March 2013 the applicant was arrested in Russia and detained in custody pending extradition 14. On 5 April 2013 the Kyrgyz authorities lodged an extradition request with the Prosecutor General of Russia, asking that the applicant be extradited to Kyrgyzstan for prosecution and trial. 15. On 16 September 2013 the Russian Prosecutor General’s Office granted the extradition request and ordered the applicant’s extradition. 16. The applicant appealed, arguing that due to his Uzbek ethnic origin the aforementioned decision would expose him to a serious risk of torture. The applicant supported his appeal through reference, inter alia, to various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev (see Makhmudzhan Ergashev v. Russia, no. 49747/11, 16 October 2012). 17. On 1 November 2013 the Primorye Regional Court rejected the applicant’s appeal against the extradition order, giving the following reasoning: “The charges pressed against [the applicant] [by Kyrgyz authorities] are criminal offences liable to punishment in Russia ... They are not time-barred ... Pursuant to Article 464 § 1 (1) of the Russian Code of Criminal Procedure, an extradition request lodged by a foreign state in respect of a Russian citizen should be denied ... It is apparent from the conclusions of the Federal Migration Service (FMS) for the Primorye Region that [the applicant] is not a Russian citizen. ... He holds a Kyrgyz passport ... and is a Kyrgyz national. ... On 28 June 2013 the FMS for Prymorye Region rejected a request from [the applicant] for refugee status in Russia. [The applicant’s] allegations of persecution by the Kyrgyz authorities on false criminal charges on the basis of his [Uzbek] ethnic origin were addressed [within the refugee status procedure]. The lawfulness of the refusal [to grant the applicant refugee status in Russia] was confirmed by Russia’s FMS on 24 September 2013 ... [The applicant’s] argument [that] the decision to extradite him was taken before any judicial review of the refusal to grant him refugee status is groundless. It is apparent from the evidential material gathered during the extradition check that [the applicant] arrived in Russia ... for employment purposes and that he had not been persecuted in Kyrgyzstan on racial, national or religious grounds ... It is likewise apparent from the evidential material gathered during the extradition check that [the applicant] lodged his request for refugee status on 16 April 2013, while being held in custody following his arrest in Russia ... , [therefore] his appeal against the decision of the FMS did not prevent the Prosecutor General’s Office from taking a decision concerning extradition, in line with ruling no. 11 of 14 June 2012 of the Plenary Session of the Russian Supreme Court ... [The applicant] does not have immunity from prosecution [and] there are no grounds preventing his extradition. The Prosecutor General’s Office of Kyrgyzstan provided assurances that [in the event of extradition] [the applicant] would have the benefit of [legal assistance]; that he would not be extradited to a third State; that he would be prosecuted only for the offence for which he was being extradited; that [he] would not be subjected to torture, inhuman or degrading treatment or punishment; that he was being prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any grounds; that he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence; and that Russian diplomats would be allowed access to him. It is apparent from the above guarantees that [the applicant] is being prosecuted for ordinary criminal offences; his prosecution is not politically motivated and is not connected with his [ethnic origin]. [The applicant’s] allegations concerning his persecution on political grounds, lack of fair trial in Kyrgyzstan, and persecution of his family members by law-enforcement bodies in Kyrgyzstan are not supported by any objective data. The court has established that [the applicant’s] wife and daughter live in Kyrgyzstan, [that there is] no substantiated information concerning their alleged persecution by the Kyrgyz authorities, [and] that they do not travel outside the territory of the Kyrgyz Republic. [The applicant himself] did not apply for refugee status until his arrest. ... The Russian Ministry of Foreign Affairs does not have any information that would prevent [the applicant’s] extradition to Kyrgyzstan. Therefore, there are no grounds ... preventing [the applicant’s] extradition to Kyrgyzstan for criminal prosecution. The argument of [the applicant’s] lawyer referring to international sources (report of the United Nations Special Rapporteur on Torture, report of the United Nations High Commissioner for Human Rights on technical assistance and cooperation on human rights for Kyrgyzstan, report of the United Nations Committee on the Elimination of Racial Discrimination, International Crisis Group Kyrgyzstan report) to the effect that after the interethnic clashes in the south of Kyrgyzstan in June 2010 the lawenforcement bodies had subjected ethnic Uzbeks to torture and that there are grounds to believe that [the applicant] might be subjected to torture in the event of his extradition, is unsubstantiated. The aforementioned international documents describe the general human rights situation in Kyrgyzstan, are unspecific and unsupported by evidence, and are countered by the guarantees offered by Kyrgyz Republic, which relate directly to the applicant and are sufficient to eliminate the risk of [the applicant’s] being subjected to inhuman treatment. [As to] the reference by the defence to ... the judgment of the European Court of Human Rights in the case of Makhmudzhan Ergashev, [the case] has no connection with [the applicant’s] case and cannot be taken into consideration. ...” 18. The applicant appealed to the Supreme Court of Russia. 19. In the meantime, on 28 January 2014 the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court. 20. On 30 January 2014 the Supreme Court upheld the judgment of 1 November 2013 on appeal, endorsing the reasoning of the first-instance court: “The court has taken into consideration the arguments of the defence and the documents submitted, including the concluding observations of the UN Committee against Torture [dated December 2013] on Kyrgyzstan’s second periodic report, in which the Committee expressed its deep concern with regard to apparent impunity regarding widespread acts of torture and ill-treatment that remained uninvestigated by the authorities of the Kyrgyz Republic ... and the report that the investigations, persecutions, convictions and punishments in connection with the events of June 2010 are mainly directed at persons of Uzbek ethnic origin. At the same time, these circumstances cannot in themselves be considered to constitute sufficient grounds for refusing to extradite [the applicant] to the Kyrgyz Republic ... Pursuant to Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be at risk of being subjected to torture. For the purpose of determining whether such grounds exist, the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. ... The provisions of Article 3 of the Convention against Torture imply that it is necessary not only to verify the existence in the State concerned of gross and mass violations of human rights, but also the existence in that State of the likelihood that the individual concerned would personally be at risk of torture if returned to his or her country. That risk must be real, immediate and foreseeable. According to the legal position of the UN Committee against Torture as outlined in a number of its decisions (...), the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not of itself constitute sufficient grounds for determining whether the person in question would be at risk of being subjected to torture upon return to that country. Additional grounds must be adduced showing that the individual concerned would be personally at risk ... The Committee ... noted that it is necessary to establish the existence of substantial grounds for believing that the person would be at risk of torture if returned, and that such risk of torture must be assessed on grounds that go beyond mere theory or suspicion. The risk need not be highly probable, but it must be personal and present. In this regard the Committee has determined, in previous decisions, that the risk of torture must be foreseeable, real and personal. The evidential material submitted by the Prosecutor General’s Office – on the basis of which the decision to extradite [the applicant] was taken – does not contain any information demonstrating that [the latter] personally would be at risk of torture, inhuman or degrading treatment or punishment in the event of his extradition. [A long passage on the guarantees provided by the Kyrgyz authorities]. Neither [the applicant] nor his lawyers provided any substantial evidence showing that [the former] was at risk of being subjected to torture, inhuman or degrading treatment or punishment by the Kyrgyz authorities, or that he might be persecuted on grounds [such as] race, religion, national or social origin, or political opinion. ... [The applicant] does not belong to any political or other party, organisation or group that opposes [the present government of Kyrgyzstan]. While living in Kyrgyzstan [the applicant] was not subjected to any torture, inhuman or degrading treatment by the authorities; he arrived in Russia in March 2012, that is to say a year and nine months after the crimes of which he stands accused had been committed in June 2010. [The applicant’s] wife and daughter remain in the Kyrgyz Republic. No evidence has [therefore] been provided showing that [the applicant] or his relatives were persecuted by [the Kyrgyz] authorities. [The applicant’s] statement to the effect that he is a “leader of Uzbek diaspora” and belongs to the ethnic Uzbeks – which allegedly gives him reason to believe that he would be subjected to repressive criminal prosecution and unfair conviction – is an assumption unsupported by any evidence. It cannot therefore be considered to constitute sufficient grounds for concluding that he is personally at risk of being subjected to torture and other ill-treatment in the event of his extradition to Kyrgyzstan. ...” 21. On 16 March 2013 the Artyom Town Court in the Primorye Region ordered the applicant’s detention pending extradition until 23 April 2013. 22. On 22 April 2013 the same court extended the applicant’s detention until 14 September 2013. On the same day the applicant’s lawyer lodged an appeal against this decision. On 12 July 2013 the Primorye Regional Court upheld the extension order on appeal. 23. On 13 September 2013 the Leninskiy District Court of Vladivostok extended the applicant’s detention until 13 March 2014. On 19 September 2013 the applicant’s lawyer lodged an appeal against this decision. The appeal was dispatched by post on 20 September 2013. The Leninskiy District Court received the applicant’s appeal on 21 October 2013. On 23 October 2013 a copy of the appeal was forwarded to the applicant and the local prosecutor’s office, and the latter was invited to submit comments by 28 October 2013. On 31 October 2013 the Leninskiy District Court forwarded the case file to the Primorye Regional Court for examination. On 6 November 2013 an appeal hearing was scheduled for 7 November 2013 and the parties were informed accordingly. On 7 November 2013 the Primorye Regional Court upheld the extension order of 13 September 2013 on appeal. 24. On 7 March 2014 the deputy Prosecutor of the Primorye Region decided to release the applicant in the light of the decision of the Court to apply Rule 39 of the Rules of Court to the present case. The applicant was released on the same day. 25. On 16 April 2013 the applicant lodged a request for refugee status with Russia’s FMS, alleging persecution on the grounds of ethnic origin. 26. On 28 June 2013 the FMS for the Primorye Region rejected the applicant’s request, having found that the applicant had left his country of nationality for reasons falling outside the scope of section 1(1)(1) of the Refugee Act. 27. On 24 September 2013 Russia’s FMS upheld the refusal of 28 June 2013. 28. The applicant lodged an appeal against the above decision before the Basmanniy District Court of Moscow. In his appeal he referred to reports concerning the widespread ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev. 29. On 22 January 2014 the Basmanniy District Court of Moscow rejected the applicant’s appeal against the FMS’s decisions. The District Court considered that the applicant had failed to substantiate his fears of persecution in Kyrgyzstan and that his allegations that the criminal charges against him were unlawful fell outside the scope of the refugee status proceedings. The District Court pointed out that his application for refugee status contained no indications that he had been previously accused or convicted of a criminal offence, or that he had been a member of any political, religious or military organisations. It also took into account the fact that the applicant had not applied for refugee status until after his placement in detention. 30. In his appeal against the judgment of 22 January 2014 the applicant requested a rigorous examination of his arguments regarding the risk of illtreatment. He again referred to various reports by international organisations and reputable NGOs to support his position. 31. On 20 May 2014 the Moscow City Court upheld that decision on appeal, reiterating the conclusions of the migration authorities and the firstinstance court. 32. On 25 April 2014 the FMS for the Primorye Region issued a decision granting the applicant temporary asylum in the Russian Federation until 25 April 2015, referring to the existence of circumstances preventing the applicant’s extradition, namely the application of Rule 39 of the Rules of Court in the applicant’s case before the Court and the impossibility of foreseeing the duration of those proceedings. 33. On 10 April 2015 the FMS for the Primorye Region extended the term of the temporary asylum granted to the applicant until 25 April 2016, with reference to the same grounds.