CASE OF MAMADALIYEV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
6. The applicant was born in 1989 and lives in Grozny. 7. The applicant is an ethnic Uzbek. He was born and lived in JalalAbad in the south of Kyrgyzstan. In 2004 he and his family moved to Dagestan and, three years later, to Grozny where the applicant worked at a telephone repair service. In October 2011 the applicant went to Jalal-Abad to attend his sister’s wedding. On 7 November 2011 he was carrying several passengers of Kyrgyz ethnic origin in his car. Afterwards one of them, a Mr M., was found dead. 8. On 10 November 2011 the applicant returned to Grozny. 9. On 9 November 2011 the Jalal-Abad regional police department brought criminal proceedings against the applicant and four other individuals on suspicion of having murdered Mr M. On 12 November 2011 the applicant was charged in absentia and on 15 November 2011 the JalalAbad Town Court ordered his remand in custody, allegedly in the absence of his lawyer. On 3 February 2012 the applicant was placed on the international wanted list. 10. According to the applicant and as confirmed by a lawyer of a local human rights organisation (see paragraph 22 below), several Kyrgyz lawenforcement officers had demanded 6,000 United States dollars from his mother in return for dropping the criminal charges against him. Apparently she did not comply with their demand. 11. On 26 June 2012 the Suzakskiy District Court of the Jalal-Abad Region convicted Mr U. of Mr M.’s murder and six more individuals of misprision and disorderly conduct. The applicant is mentioned in the judgment as the driver of the car transporting the defendants and the victim on the night of the murder. It does not follow from the judgment that the applicant had been involved in Mr M.’s murder, which had apparently been committed by Mr U. alone. 12. On 27 July 2012 the Jalal-Abad Regional Court of Kyrgyzstan altered the judgment of the trial court by reducing the term of Mr U.’s imprisonment from nineteen to twelve years. 13. On 23 April 2012 the applicant was arrested in Grozny. 14. On 24 April 2012 the prosecutor of the Leninskiy District of Grozny issued an order for the applicant to be remanded in custody for a period of two months. 15. On 18 June 2012 the Leninskiy District Court of Grozny extended the applicant’s detention until 24 October 2012. The applicant neither objected at the hearing nor appealed against that decision. 16. On 19 October 2012 the District Court extended the applicant’s detention until 24 January 2013, reasoning that extradition proceedings were pending and that the applicant might abscond. 17. On 22 October 2012 the applicant appealed against that decision to the Supreme Court of the Republic of Chechnya. He argued that the court had failed to duly reason the risk of his absconding, that the period of his detention was excessive, and that the court had not considered less stringent preventive measures, in breach of paragraph 16 of Directive Decision no. 22 adopted by the Plenary Session of the Russian Supreme Court on 14 June 2012. 18. By a final decision of 22 November 2012 the Supreme Court of the Republic of Chechnya rejected the appeal and upheld the lower court’s ruling. 19. On 24 January 2013 the District Court extended the applicant’s period of detention until 24 April 2013. On 11 March 2013 the Supreme Court of the Republic of Chechnya dismissed an appeal lodged by the applicant and upheld that decision. 20. On 19 April 2013 the Deputy Prosecutor of the Republic of Chechnya noted the interim measure indicated by the Court and ordered the applicant’s release on condition that he did not leave his place of residence without permission and behaved properly (подписка о невыезде и надлежащем поведении). 21. On 21 May 2012 the Deputy Prosecutor General of Kyrgyzstan lodged an extradition request with the Deputy Prosecutor General of the Russian Federation seeking to extradite the applicant to Kyrgyzstan for prosecution on charges of murder (see paragraph 9 above). The request stated, inter alia, that the applicant would not be extradited to any other State without the Russian Prosecutor General’s consent, that he would be prosecuted only for the offence which was the subject of the extradition request and which was not of a political nature, that in the event of conviction the applicant would be free to leave the territory of Kyrgyzstan after serving his sentence, and that he would not be subjected to any form of discrimination on any ground, including his nationality. The request also stated that the applicant would not be subjected to torture, inhuman or degrading treatment or punishment prohibited by the United Nations Convention against Torture. 22. On an unspecified date, at the request of the applicant’s mother, a lawyer from a Kyrgyz human-rights NGO, Mr Mamatislamov, wrote a letter to the head of the extradition department of the Prosecutor General’s Office of the Russian Federation. In the letter Mr Mamatislamov argued that the applicant’s criminal prosecution was arbitrary. He confirmed that police officers had demanded money from the applicant’s mother in exchange for dropping the criminal charges against the applicant. He stated that the Kyrgyz authorities had been showing the applicant’s photo to victims of the events of June 2010 to make them remember him with a view to charging him with the killings of ethnic Kyrgyz after his extradition. He also gave details of several criminal cases initiated against ethnic Uzbeks who had allegedly been tortured and/or killed by the Kyrgyz police. In support of his statements Mr Mamatislamov referred to the opinion of the UN Special Rapporteur on Torture who had concluded after his visit to Kyrgyzstan that many ethnic Uzbeks had been arbitrarily convicted in Kyrgyzstan in recent years. 23. On 6 June 2012 the Prosecutor General’s Office of the Russian Federation made enquiries with the Russian Ministry of Foreign Affairs on the issue of the applicant’s extradition to Kyrgyzstan. On 21 June 2012 the Ministry of Foreign Affairs replied as follows: “... the Ministry of Foreign Affairs has no information which prevents the extradition of the Kyrgyz national U.M. Mamadaliyev to the law-enforcement authorities of the Kyrgyz Republic. U.M. Mamadaliyev is of Uzbek ethnic origin, he does not belong to the titular ethnic group in Kyrgyzstan, which makes it possible for the Kyrgyz authorities to hear his case in an arbitrary manner.” 24. On 20 September 2012 the Deputy Prosecutor General of the Russian Federation granted the request for the applicant’s extradition. 25. On 11 October 2012 the applicant lodged a court appeal against the extradition decision. He pointed out that by the judgment of the Suzakskiy District Court of the Jalal-Abad Region of 26 June 2012, Mr U. had been found guilty of the murder of Mr M. with which the applicant had been charged. It followed from that judgment that nobody had been charged with complicity in that murder. The applicant further noted that the lawenforcement officers had attempted to extort money from his mother in exchange for dropping the criminal charges against him. He argued that the accusation of murder against him was baseless as he had not committed that crime. Besides, as a member of the ethnic Uzbek community, which was being persecuted and discriminated against, he would, if extradited, be subjected to torture or degrading treatment. The applicant’s lawyer gave several examples of such illtreatment suffered by ethnic Uzbeks in Kyrgyzstan. 26. On 12 November 2012 the Supreme Court of the Republic of Chechnya rejected the applicant’s appeal. In its decision the Supreme Court relied, inter alia, on the following: (a) the assurances by the Kyrgyz Republic Prosecutor General’s Office, in particular that the applicant would not be subjected to torture and other forms of ill-treatment – the court stated that it had no reasons to doubt that they would be observed; (b) the Russian authorities’ rejection of the applicant’s request for refugee status; and (c) the fact that the extradition request had not been made for the purpose of prosecuting or punishing the applicant on account of his race, religion, nationality or political opinion. 27. On 17 November 2012 the applicant appealed against that decision to the Supreme Court of the Russian Federation. In addition to the arguments put forward before the Supreme Court of the Republic of Chechnya, his lawyer referred to information on the widespread practice of ill-treatment of detainees in Kyrgyzstan, as confirmed by the UN High Commissioner on Human Rights, the UN Special Rapporteur on Torture, Human Rights Watch and Amnesty International. 28. On 23 January 2013 by a final decision the Supreme Court of the Russian Federation rejected the applicant’s appeal against the decision of the Supreme Court of the Republic of Chechnya of 12 November 2012. It endorsed the lower court’s reasoning without commenting on the applicant’s reference to the international sources regarding the risk of illtreatment. 29. On 25 June 2012 the applicant submitted a request for refugee status before the Federal Migration Service of the Russian Federation (“the FMS”). On 2 August 2012 his application was rejected as ill-founded. In its decision the Department of the FMS in the Republic of Chechnya pointed out that the applicant had submitted his request after the beginning of the extradition proceedings. They also mentioned that such requests often served the purpose of revoking decisions to extradite. 30. The applicant appealed against that decision before the Leninskiy District Court of Grozny. In his appeal he referred to information on the widespread practice of ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by the UN High Commissioner on Human Rights, the UN Special Rapporteur on Torture, Human Rights Watch and Amnesty International. 31. On 22 November 2012 the District Court dismissed the appeal and upheld the FMS’s decision. The court did not address the applicant’s arguments concerning the risk of ill-treatment and found that the reason for the applicant’s request for refugee status was his fear of criminal prosecution. It held that there was therefore no legal basis for granting the request. 32. On 20 December 2012 the applicant lodged an appeal against that decision before the Supreme Court of the Republic of Chechnya. He pointed out, inter alia, that the District Court had ignored his reference to information on the practice of ill-treatment confirmed by international human-rights organisations. 33. On 5 March 2013 the Supreme Court of the Republic of Chechnya dismissed the applicant’s appeal. It did not analyse his arguments concerning the risk of ill-treatment in Kyrgyzstan. 34. On an unspecified date the applicant requested the Department of the FMS in the Republic of Chechnya to grant him temporary asylum in Russia. On 15 August 2013 that request was granted and the applicant was provided with temporary asylum until 15 August 2014.