CASE OF U.N. 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 - Take proceedings)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
6. The applicant was born in 1991 and lives in Vladivostok. 7. The applicant is an ethnic Uzbek. He lived in the town of Osh in Kyrgyzstan. After the mass disorders and inter-ethnic clashes in the region in June 2010, he left Kyrgyzstan for Russia. 8. On 4 July 2010 the applicant arrived in Russia. 9. On 9 July 2010 the Kyrgyz authorities charged the applicant in absentia with violent crimes related to these clashes, including the kidnapping and murder of two law-enforcement officers. 10. On 10 July 2010 they ordered the applicant’s arrest. 11. On 12 July 2010 the applicant’s name was put on a national wanted list, and on 16 September 2010 on an international wanted list. 12. On 23 January 2014 the applicant was apprehended in Vladivostok, Primorsk Region, and placed in detention. 13. Shortly after his arrest, the applicant gave an explanation (объяснение) in which he admitted having participated in the beating of one of the law-enforcement officers in June 2010 but denied his involvement in other crimes for which he was to be prosecuted in Kyrgyzstan. He also indicated that although he had not been directly informed about the charges being brought against him in Kyrgyzstan, he knew that his father had been sentenced to life imprisonment for the murder of the same law-enforcement officers and suspected that he was himself also wanted by the Kyrgyz authorities. 14. On 24 January 2014 the Frunzenskiy District Court of Vladivostok decided to remand the applicant in custody. His detention was subsequently extended several times. 15. On 29 January 2014 the Russian Prosecutor’s Office informed the Kyrgyz authorities about the applicant’s arrest. 16. On 16 January 2015 a judge of the Primorsk Regional Court extended the applicant’s detention until 23 July 2015. The applicant’s lawyer appealed, arguing that the applicant would be deprived of judicial review of his detention for a long period of time. 17. On 11 February 2015 the Primorsk Regional Court upheld the extension order on appeal. It did not address the applicant’s argument that he would be deprived of judicial review of his detention for a long period of time. 18. On 27 July 2015 the applicant was released. It appears that the applicant is currently at large. 19. On 11 February 2014 the Kyrgyz General Prosecutor’s Office requested the applicant’s extradition. The request was accompanied by assurances that the applicant would not be subjected to torture or inhuman treatment and that Russian diplomats would be granted the opportunity to visit him. 20. On 17 October 2014 the Deputy Prosecutor General granted the extradition request submitted by the Kyrgyz authorities. 21. On 6 November 2014 the applicant appealed, arguing that as an ethnic Uzbek charged with serious crimes in relation to the mass disorders of June 2010 he would face a serious risk of torture and ill-treatment if extradited. He also referred to the principle of nonrefoulement of asylum seekers pending the examination of his application for refugee status. 22. On 12 December 2014 the Primorsk Regional Court rejected his appeal in the light of the diplomatic assurances given by the Kyrgyz authorities and the improvement of the situation in Kyrgyzstan. As to the nonrefoulement principle, the Regional Court noted that the applicant’s application for refugee status had been refused by the migration authority. 23. On 25 March 2015 the Supreme Court rejected the applicant’s appeal and the extradition order became final. It noted in particular that in addition to the diplomatic assurances provided in writing by the Kyrgyz authorities, the representatives of the General Consulate of the Russian Federation in this country were able to monitor the situation of persons already extradited to Kyrgyzstan, including those held in relation to the mass disorders. For instance, on 30 and 31 July 2014 Russian diplomats had visited some such detainees, who had made no complaints in relation to their transfer, detention, prosecution or treatment. In the Supreme Court’s view, such a monitoring mechanism was effective in observing compliance by the Kyrgyz authorities with their obligations to ensure the rights of the extradited persons, including the right not to be subjected to torture and inhuman treatment. 24. The Supreme Court noted that the applicant belonged to a vulnerable group whose members were at risk of being subjected to torture by the lawenforcement agencies, according to international reports. It considered, however, that in the absence of specific evidence submitted by the applicant that he would personally be subjected to torture or inhuman and degrading treatment, these circumstances were not in themselves enough to reject an extradition request, since he had been charged with ordinary criminal offences to some of which he had confessed on 23 January 2014. 25. On 7 February 2014 the applicant applied to the Primorsk Region Department of the Federal Migration Service (Управление Федеральной миграционной службы по Приморскому краю) (hereinafter the “Primorsk Region FMS”) seeking refugee status. 26. On 23 April 2014 the Primorsk Region FMS refused the applicant’s application for refugee status. Although it referred in its decision to interethnic conflicts existing in Kyrgyzstan, it considered that the applicant’s arrival in Russia had rather been motivated by the unemployment situation existing in his country of origin and his wish to escape from criminal prosecution. 27. The applicant appealed to the Federal Migration Authority, (Федеральная миграционная служба (ФМС)) (hereinafter the “FMS”). He claimed that he was being persecuted on the grounds of his ethnic origin and, if extradited, would be subjected to torture. 28. On 18 July 2014 the FMS dismissed his appeal on account of his prolonged failure to apply for refugee status and in view of the opportunity offered to the Russian diplomats to monitor the compliance by the Kyrgyz authorities with international standards as regards persons extradited from Russia. 29. On 13 November 2014 the Basmannyy District Court of Moscow upheld the refusal of the FMS to grant the applicant refugee status, referring in particular to his protracted failure to apply for refugee status. It also indicated that the applicant was not a member of any political, religious, military or public organisation, had neither served in the army nor taken part in any military activities, had never been prosecuted or threatened by the authorities, and had not been involved in any violent incidents. 30. On 8 April 2015 the Moscow City Court upheld this judgment on appeal. The City Court endorsed the reasoning of the District Court, referring in addition to several international sources demonstrating positive developments in the human rights situation in Kyrgyzstan during the period 2011-2012.