CASE OF TADZHIBAYEV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Kyrgyzstan);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
6. The applicant is a Kyrgyz national of Uzbek ethnic origin. He was born on 1 September 1988 and resided in the town of Osh in Kyrgyzstan. After mass disorder and inter-ethnic clashes in the region in June 2010, he fled to Russia, together with many other ethnic Uzbeks, for fear of ethnicmotivated violence. It appears that his next of kin remain in Kyrgyzstan. 7. In August 2010 the applicant arrived in Russia and received a temporary residence permit for the period from 3 December 2010 to 3 December 2013. 8. After the applicant’s departure from Kyrgyzstan, on 25 June 2010 the Kyrgyz authorities charged him in absentia with involvement in riots accompanied by violence, inter-ethnic clashes, arson, use of firearms and destruction of property on 17 June 2010 in the city of Osh, Kyrgyz Republic. The applicant was also alleged to have kidnapped someone. 9. On an unspecified date in 2010 the applicant was put on a list of fugitives in Kyrgyzstan; on 12 February 2011 he was put on a list of fugitives in Russia as well. 10. On 29 October 2012, while travelling by train in Russia, the applicant was arrested by the transport police. He denied his involvement in the 2010 events. On 31 October 2012, the Krasnogvardeyskiy District Court of St Petersburg ordered the applicant’s detention for a month. His detention was subsequently extended numerous times. 11. The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition. On 23 November 2012, the Prosecutor General’s Office of the Russian Federation received a request from the Kyrgyz Republic seeking the applicant’s extradition. On 13 August 2013 it granted the request. 12. The applicant and his counsel appealed against the extradition order claiming, in particular, that he would face a risk of torture and illtreatment since ethnic Uzbeks were a particularly vulnerable group following the June 2010 violence in the southern regions of Kyrgyzstan. On 26 November 2013 the St Petersburg City Court quashed the extradition order, finding it unlawful, and released the applicant. It appears that the applicant is currently at large. 13. On 25 February 2014 the Supreme Court of Russia quashed the ruling of the St Petersburg City Court of 26 November 2013 and upheld the extradition order. In its decision of 25 February 2014 the Supreme Court held, in particular, as follows: “... the conclusion of the lower court that the prosecutor’s office failed to examine the question of the risk of unacceptable treatment in the Kyrgyz Republic in the event of [the applicant’s] extradition does not fit the case-file materials. The Prosecutor General’s office of the Kyrgyz Republic has given guarantees to the effect that [the applicant] would only be prosecuted in respect of the crimes indicated in the initial extradition request and the behaviour of a general criminal character. They guaranteed that he would not be prosecuted on the basis of political or discriminatory reasons, including motives based on his origins, social background, the office he may have occupied, the pecuniary situation, gender, race, ethnicity, language, convictions and relations to religion, that [the applicant] would be given all possibilities to defend himself, that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment, and that if he was convicted and after having served the sentence he would be able to leave the territory of the Kyrgyz Republic freely. The materials submitted by the defence ... do not undermine the real guarantees provided by the Kyrgyz Republic in respect of [the applicant] and are sufficient to exclude any risk of his cruel treatment ...” 14. According to the Russian Government, the Prosecutor General’s Office of the Kyrgyz Republic gave all necessary guarantees that the applicant’s criminal prosecution would be carried out in strict compliance with the national law and the international obligations of the Kyrgyz Republic. Among other things, it guaranteed that the applicant would not be subjected to torture or other cruel, humiliating or degrading treatment; he would be guaranteed the right to defence, and Russian diplomatic staff would be given an opportunity to visit him in the detention facility. 15. On 7 November 2012, while in detention, the applicant applied to the Federal Migration Service for refugee status. He claimed, among other things, that a criminal case had been opened against him exclusively because of his ethnic origin and that he would face a real risk of illtreatment if he were sent back to Kyrgyzstan. 16. Following the examination of the applicant’s asylum request, by its decision of 19 March 2013 the Department of the Federal Migration Service for St Petersburg and Leningrad region refused to grant refugee status to the applicant as he did not meet the necessary criteria defined by the national law. The Federal Migration Service of Russia took a final administrative decision on the matter on 7 October 2013, stating as follows: “... the basic criterion for granting a person temporary asylum is the presence of a well-founded suspicion that if returned to his/her home country, that person could become a victim of torture or other cruel, inhuman or degrading treatment or punishment. The analysis of the decision of the migration authorities in charge of St Petersburg and the Leningrad Region, the materials of the applicant’s personal case file, the information communicated by the applicant, as well as the available information from the Ministry of Foreign Affairs of Russian and the Federal Migration Service of Russia concerning the situation in Kyrgyzstan has shown that the migration authorities in charge of St Petersburg and the Leningrad Region have fully examined all the the applicant a possibility to remain temporarily on the territory of the Russian Federation. According to the information submitted by the Prosecutor General’s office, an agreement has now been reached with the Kyrgyz authorities which enables officials at the Embassy of the Russian Federation to monitor the compliance by the authorities of Kyrgyzstan with the standards of international law in respects of persons extradited to the Kyrgyz Republic. The monitoring has established that the decision of the UFMS in charge of St Petersburg and the Leningrad Region to refuse to grant the applicant temporary asylum on the territory of the Russian Federation did not breach the legislation on refugees. The decision ... is lawful, justified and should be upheld.” 17. The applicant’s representatives appealed against the decision of 7 October 2013. By a final decision of 28 July 2014 the Moscow City Court rejected the applicant’s appeal.