CASE OF TURGUNOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
6. The applicant was born in 1979 in the town of Osh, Kyrgyzstan, and lives in St Petersburg. 7. The applicant is an ethnic Uzbek. In June 2010 ethnic violence erupted in the town of Osh, where the applicant lived at the material time, during which around 400 people were killed. 8. On 15 July 2010 the applicant came to Russia, and has not returned to Kyrgyzstan since. 9. On 9 April 2012 the police of the town of Osh charged the applicant in absentia with participation in the mass riots and several other offences. 10. On 10 April 2012 the Osh Town Court issued an arrest warrant against the applicant, and on 20 April 2012 his name was put on the crossborder wanted list. 11. On 23 January 2013 the applicant was arrested in St Petersburg and remanded in custody two days later by a court order. His detention was extended several times. 12. On 7 March 2014 the St Petersburg transport prosecutor noted the interim measure indicated by the Court and ordered the applicant’s release from detention under the personal guarantee of his lawyer. 13. On 11 February 2013 the Kyrgyzstan Prosecutor General’s Office requested the applicant’s extradition for prosecution for participation in mass riots in June 2010, intentional infliction of grievous bodily injury and use of violence against a police officer, car-jacking, and intentional destruction of property. 14. On 24 May 2013 the applicant’s lawyer submitted to the Prosecutor General of Russia a letter referring to reports of international organisations and the Court’s case-law evidencing that there was a high risk that the applicant would be subjected to inhuman treatment if he were extradited. 15. On 24 July 2013 a deputy Prosecutor General of the Russian Federation granted the request of the Kyrgyzstan Prosecutor General’s Office for the applicant’s extradition. He held that there were no grounds in Russian or international law for refusing to extradite the applicant. 16. The applicant appealed, maintaining that, as a member of the ethnic Uzbek community which was being persecuted and discriminated against, he ran a serious and real risk of being subjected to torture in detention. 17. On 6 November 2013 the St Petersburg City Court rejected that appeal, finding as follows: “Taking into account the materials submitted, there are no grounds under Article 464 of the Criminal Procedure Code of Russia that exclude the possibility of extraditing an individual ... The applicant’s argument that the extradition is unlawful because he has refugee proceedings pending is untenable, and the arguments about his possible persecution by the law-enforcement authorities of Kyrgyzstan because of his ethnic origin are unsubstantiated and do not constitute a ground to refuse the extradition. The information of [the Ministry for Foreign Affairs of Russia] according to which the examination of the criminal case against [the applicant] by the authorities of Kyrgyzstan might be biased, is conjecture and is not based on any proof ... The Prosecutor General of Kyrgyzstan has provided assurances that, according to the standards of international law and the criminal law of Kyrgyzstan, [the applicant] would be afforded all means of defence, including legal assistance, would not be handed to a third country without the approval of the Russian Prosecutor General, or charged with and convicted of any offence committed before the extradition and for which he was not extradited. He would not be subjected to torture or to cruel, inhuman and degrading treatment or punishment ... Furthermore, the requesting party provided assurances that, after [the applicant’s] extradition to the Republic of Kyrgyzstan, Russian diplomats would be allowed to visit [the applicant] in remand prisons to ensure respect for his rights ... The evidence submitted by the defence, according to which persecution of ethnic Uzbeks in connection with the events of 2010 continues in Kyrgyzstan, concerns isolated cases and cannot be regarded as evidence that [the applicant] will be subjected to cruel treatment, bearing in mind that he is accused of an offence which is not political in nature; there are currently measures put in place by the authorities of the Republic of Kyrgyzstan to remedy the violations of human rights disclosed by international organisations ... furthermore, the requesting party provided sufficient and real assurances that [the applicant’s] right to a fair trial would be respected and that he would not be subjected to ill-treatment. The general situation in the Republic of Kyrgyzstan was thoroughly analysed in the decision refusing [the applicant] refugee status by the St Petersburg Regional Office of the Federal Migration Service.” 18. The applicant’s lawyers appealed against that decision, arguing that the first-instance court had failed to address their arguments concerning the risk that the applicant would be subjected to inhuman treatment if extradited. 19. By its final decision of 25 February 2014 the Supreme Court of the Russian Federation, having endorsed the lower court’s reasoning, rejected the appeal. 20. On 6 February 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to grant him refugee status. He pointed out that he feared returning to Kyrgyzstan, where he would face arbitrary prosecution and inhuman treatment. 21. On 29 May 2013 the St Petersburg Regional Office of the Federal Migration Service refused the above request for lack of reasons which would justify the applicant’s allegations. In particular, it found that the latter had referred to the events of 2010 as a pretext to avoid criminal prosecution. The Regional Office further analysed the situation in Kyrgyzstan on the basis of several news items of mainly Kyrgyz and Russian newspapers and information agencies. Referring to these items, it stated that “... the situation in Kyrgyzstan had substantially changed, the inter-ethnic clashes had ceased, and the government was taking enhanced measures to protect citizens and to improve the social and economic situation in the country”. 22. On 23 August 2013 the Federal Migration Service of the Russian Federation upheld this decision. The applicant complained before the Moscow Basmanniy District Court. 23. On 3 December 2013 the Basmanniy District Court dismissed the complaint. It endorsed the findings of the migration authorities and noted that the applicant was not a member of any political, religious, military or non-governmental organisations. Neither had he been persecuted or threatened by the authorities. Therefore, there was neither a threat to the applicant’s life nor any medical indications indicating a need for urgent medical intervention. 24. On 20 May 2014 the Moscow City Court upheld the decision of 3 December 2013 on appeal. 25. On 20 September 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to provide him with temporary asylum in the Russian Federation. 26. On 26 November 2013 his request was refused. According to the applicant, he was not informed of this decision. 27. On 5 May 2014 the applicant lodged a new application for temporary asylum, which was dismissed on 1 August 2014. 28. On 1 October 2014 the applicant’s lawyer lodged an appeal against the decision of 1 August 2014. However, the outcome of the appeal remains unknown.