CASE OF GAYRATBEK SALIYEV 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)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicant was born in 1988 and lives in the village of Suzak, situated in the Jalal-Abad Region of Kyrgyzstan. He is currently staying in Krasnoarmeysk, the Moscow Region, Russia, where he is subject to a measure of restraint applied in the course of extradition proceedings. 7. The applicant is an ethnic Uzbek. 8. In June 2010 inter-ethnic violence between Kyrgyz and Uzbek groups broke out in the southern areas of Kyrgyzstan, including the city of Osh and the Jalal-Abad Region. The applicant claimed not to have taken part in any violent actions. He left Kyrgyzstan for Russia, allegedly fleeing ethnically motivated violence. It appears that his next-of-kin remain in the country. 9. In July 2010 the applicant arrived in Russia. In 2010 and 2011 he did not lodge any applications for refugee status or temporary asylum. By a final judgment of 16 September 2011 the Moscow Meshchanskiy District Court (“the Meshchanskiy court”) convicted the applicant of robbery. The applicant served a prison term and was released on 19 January 2012. 10. In the meantime, on 24 August 2010 the Osh Region Prosecutor’s Office (Kyrgyzstan) charged the applicant in absentia with a number of serious violent offences committed in June 2010 in the course of interethnic rioting in the village of Suzak. 11. On 25 August 2010 the Suzak District Court, the Jalal-Abad Region of Kyrgyzstan, ordered the applicant’s remand in custody. On an unspecified date the applicant’s name was placed on an international wanted list. 12. On 25 March 2012 the applicant was arrested by the Russian police while he was travelling by train in the Moscow region, on the basis that he was wanted in Kyrgyzstan. 13. On 26 March 2012 the transport prosecutor’s office for the MoscowYaroslavl railway (“the transport prosecutor’s office”) ordered the applicant’s remand in custody pending receipt of an extradition request pursuant to Article 61 of the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 and on the basis of the Kyrgyz court’s decision of 25 August 2010. 14. On 18 April 2012 the Prosecutor General’s Office of Kyrgyzstan sent an official extradition request to their Russian counterparts. 15. On 25 April 2012 the transport prosecutor’s office again ordered the applicant’s remand in custody. 16. On 28 April 2012 the applicant sought refugee status in Russia. He claimed, among other things, that the criminal case against him had been opened exclusively because of his ethnic origin and that he would face a real risk of ill-treatment in Kyrgyzstan if returned there. He referred to reports by Human Rights Watch and Amnesty International. 17. On 10 May 2012 the applicant’s lawyer wrote to the Prosecutor General’s Office of Russia, indicating that extradition should be refused on account of the substantiated risk of ill-treatment in respect of the applicant in Kyrgyzstan. On 14 June 2012 the Prosecutor General’s Office of Russia replied that the above submissions would be taken into account in the decision-making process on the extradition request. 18. On 22 May 2012 the Meshchanskiy court extended the term of the applicant’s detention up to six months, that is to say, until 25 September 2012. On 4 June 2012 the Moscow City Court dismissed an appeal brought by the applicant and upheld the detention order. 19. By a decision of 21 August 2012 the Moscow Department of the Federal Migration Service of Russia (“Moscow migration authority”) refused to grant refugee status to the applicant. It held, in so far as relevant, as follows: “Mr Saliyev has based his refugee application in Russia on the allegations that in his country of nationality he would be persecuted by State agencies on [the basis of] fabricated criminal charges [brought] because of his ethnic origin. ... It is evident from the available materials that Mr Saliyev left his country of nationality for reasons which fall outside the scope of section 1(1)(1) of the Refugee Act, and that he does not wish to return to his country, fearing lawful prosecution for a criminal offence ... During his interview Mr Saliyev failed to refer to any facts capable of proving his persecution on the grounds of his ethnic origin. The Kyrgyz law-enforcement agencies ... do not have the specific purpose of persecuting Mr Saliyev because of his belonging to a particular social group, ethnic origin, religion or political views.” 20. On 21 September 2012 the Kyrgyz authorities issued an amended list of charges against the applicant, which included illegal use of firearms and other weapons, murder, robbery, destruction of property and involvement in rioting aggravated by ethnic hatred. 21. On 24 September 2012 the Meshchanskiy court extended the applicant’s detention until 25 December 2012 for the reason that an extradition check was underway. On 24 October 2012 the Moscow City Court dismissed the applicant’s appeal against the detention order of 24 September 2012. 22. On 4 October 2012 the Prosecutor General’s Office of Kyrgyzstan submitted a letter to their Russian counterparts, containing assurances that the applicant would benefit from legal assistance; would not be tortured or subjected to inhuman or degrading treatment; and the extradition request was related to ordinary criminal offences and was not aimed at persecuting the applicant on religious, political grounds or grounds relating to his ethnic origin. 23. On 22 October 2012 the Federal Migration Service of Russia (“FMS”) upheld the refusal to grant refugee status of 21 August 2012, without providing any detailed reasons. 24. On 25 December 2012 the Meshchanskiy court extended the applicant’s detention with a view to extradition until 25 March 2013. The applicant appealed on 27 December 2012. On the same date the case was transferred to the Moscow City Court, which received it on 25 January 2013. On 13 February 2013 the Moscow City Court upheld the detention order. 25. On 18 February 2013 the Moscow Basmannyy District Court (“the Basmannyy court”) upheld the FMS’s decision of 22 October 2012. The applicant appealed. 26. On 20 February 2013 the Deputy Prosecutor General of Kyrgyzstan amended the extradition request, stating that following the applicant’s extradition Russian diplomatic staff would be given an opportunity to visit him in the detention facility and that the applicant would not be subjected to torture, cruel, inhuman or degrading treatment or punishment, as prohibited by the 1984 UN Convention against Torture. 27. On 27 February 2013 the Deputy Prosecutor General of Russia granted the extradition request and ordered the applicant’s extradition, without making any findings on the issue of the risk of ill-treatment in the event of the applicant’s extradition. 28. The applicant appealed against the extradition order, claiming, in particular, that he would face risks of torture and ill-treatment since, according to various international reports, ethnic Uzbeks were a particularly vulnerable group following the June 2010 violence in the southern regions of Kyrgyzstan. 29. On 21 March 2013 the Moscow City Court examined the matter of the applicant’s continued detention and extended it until 25 September 2013. The applicant appealed on 25 March 2013. On the same date the case was transferred to the appeal section of the Moscow City Court, which received it on 29 April 2013. On 16 May 2013 the appeal section upheld the extension order. 30. In the meantime, on 28 March 2013 the Moscow City Court upheld the Basmannyy court’s judgment of 18 February 2013. 31. On 16 April 2013 the Moscow City Court examined the applicant’s appeal against the extradition order. The court heard Ms Ryabinina, the applicant’s representative before the Court, as a witness, and refused to examine a number of pieces of evidence adduced by the applicant in relation to his arguments regarding the risk of ill-treatment in Kyrgyzstan, in particular a number of reports from international organisations. By a judgment of the same date, the Moscow City Court upheld the extradition order in the following terms: “... The applicant’s arguments relating to persecution by the Kyrgyz authorities on the grounds of his nationality were examined and dismissed by the decision of 22 October 2012 concerning his application for refugee status. The above decision was upheld by the now final judgment of 18 February 2013 ... This court dismisses the argument concerning the issuing of the extradition order before the examination of the refusal to grant refugee status. As is clear from the materials concerning the extradition check procedure, [the applicant] lodged an application for refugee status after his arrest in Russia. Judicial review proceedings in respect of a refusal to grant such status do not impede the issuing of an extradition order ... The Prosecutor General’s Office of Kyrgyzstan guarantees that [the applicant] would be given all opportunities to defend himself, including legal assistance; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment... In addition, the requesting country guarantees that following [the applicant’s] extradition Russian diplomatic officers would be afforded an opportunity to visit him in the detention facility in order to be satisfied that his rights are being respected, [and] that the principles of the equality of arms and the adversarial nature of court proceedings are being respected... The court dismisses as unfounded the arguments relating to inability for [the applicant to undergo] a medical examination or [have] confidential meetings with diplomatic officers ... It follows from Ms Ryabinina’s witness statement that she has not visited Kyrgyzstan since 2006 and was not present during the events of June 2010. Her knowledge of the current situation in Central Asia is based on reports by foreign human-rights organisations describing an imprecise group of people. ... The court dismisses as unproven the references to the findings made by the Russian Supreme Court and the European Court in individual cases or the references to the reports of international organisations assessing the general human-rights situation in Kyrgyzstan. The above references are refuted by the real guarantees from the Kyrgyz authorities, such guarantees relating directly to [the applicant] and being sufficient to exclude the risk of cruel treatment in respect of him ...” 32. On 22 April 2013 the applicant appealed to the Supreme Court of Russia against the decision of 16 April 2013. 33. On 19 June 2013 the Supreme Court of Russia, sitting as an appeal court, examined the applicant’s appeal against the judgment of 16 April 2013 upholding the extradition order. The appeal court admitted to the file a number of documents, including international reports regarding Kyrgyzstan. By a judgment of the same date, the Supreme Court of Russia dismissed the appeal, endorsing the reasoning of the first-instance court. It held as follows: “... Judicial review proceedings in respect of a local migration authority’s refusal to grant refugee status do not impede the decision-making process in respect of an extradition request ... The available materials do not disclose that [the applicant] is being persecuted on political grounds by law enforcement agencies in Kyrgyzstan ... The prosecution against [the applicant] concerns ordinary criminal offences and does not contain indications of any political motivation or discrimination on the grounds of ... social origin, nationality or race ... The Kyrgyz Prosecutor General’s Office submitted guarantees that [the applicant] would be provided with all [necessary] facilities for [preparing] his defence, including legal assistance; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment ... Thus, the court accepts as correct the conclusion that the Republic of Kyrgyzstan has fully complied with the requirements of Article 462 § 3 of the Code of Criminal Procedure and Article 14 of the European Convention on Extradition, as regards the provision of the required guarantees ...” 34. The text of the appeal decision did not contain any reference to any avenues of further appeal. It appears that the extradition order became enforceable on 19 June 2013. 35. On 28 June 2013 the Moscow migration authority dismissed the applicant’s application for temporary asylum. The applicant appealed to the FMS, which informed him on 8 October 2013 that the decision of 28 June 2013 had been quashed and that his application would be re-examined. It remains unknown whether the re-examination in question has taken place. 36. On 4 September 2013 the transport prosecutor’s office ordered the applicant’s release from custody for the reason that the Court had applied interim measures pursuant to Rule 39 of the Rules of Court in respect of the applicant, and applied a different measure of restraint on the basis that the applicant’s lawyer, Ms Biryukova, had provided a personal guarantee that the applicant would be available for questioning and other actions related to the extradition check once released. 37. The applicant was then released from remand.