ECtHR - Tadzhibayev v. Russia, Application no. 17724/14, 1 December 2015
| Country of applicant: | Kyrgyzstan |
| Court name: | European Court of Human Rights |
| Date of decision: | 01-12-2015 |
| Citation: | Application no. 17724/14 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
The Court found that the applicant would face a real risk of ill-treatment contrary to Article 3 ECHR if extradited to Kyrgyzstan, having regard to the various reports from UN bodies and international NGOs assessing the situation in the country.
Facts:
The applicant, an Uzbek national of Kyrgyzstan, fled to Russia in June 2010 following violent inter-ethnic clashes in his country. He received a temporary residence permit for the period from 3 December 2010 to 3 December 2013. He was later placed on the Kyrgyz and Russian lists of fugitives for allegations of various crimes committed. He was arrested and detained by Russian authorities in 2012, who subsequently granted the extradition request submitted by Kyrgyzstan. He was released after successfully appealing the extradition order. However, this ruling was quashed by the Supreme Court of Russia on the basis that the Kyrgz authorities had provided diplomatic guarantees that the applicant would not be subject to ill-treatment. Enforcement of the order was suspended as the ECtHR indicated a Rule 39 measure to prevent his extradition. Whilst extradition proceedings were ongoing, the applicant claimed asylum, which was rejected at first instance and upon appeal, in a final decision of July 2014.
Decision & reasoning:
I. Article 3 ECHR
The Court recalled a previous case concerning an extradition to Kyrgyzstan were it had found that in 2012 the situation in the south of the country was characterized by torture and other ill-treatment of ethnic Uzbeks by law-enforcement officers. The Court held that the applicant belonged to a particularly vulnerable group, namely, ethnic Uzbeks, members of which were routinely subject to ill-treatment according to various reports by UN bodies and NGOs which state that the situation has not improved in Kyrgyzstan following the events of June 2010. The Court added that the applicant’s claim to be at risk of ill-treatment had not been correctly examined by the Russian courts and their refusal to take into account materials originating from reliable sources, such as reports by international NGOs. It noted that Kyrgyzstan is not a Contracting Party to the European Convention on Human Rights. The Court found that the applicant would face a real risk of ill-treatment if he were to be extradited to Kyrgyzstan.
II. Article 13 ECHR
The Court found that there was no need to consider Article 13 separately.
Outcome:
Violation of Article 3 ECHR.
Observations/comments:
This case summary was written by Clara Gautrais, GDL student at BPP University, UK.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Umirov v. Russia (no. 17455/11) |
| ECtHR - Mamatkulov and Askarov v. Turkey, Application Nos. 46827/99 and 46951/99, 4 February 2005 |
| ECtHR - Makhmudov v Russia, no. 35082/04, 26 July 2007 |
Follower Cases:
Other sources:
Kyrgyzstan’s second report on implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, for the period from 1999 to 2011.
The UN Committee on the Elimination of Racial Discrimination considered the fifth to seventh periodic reports of Kyrgyzstan, February 2013.
The UN Committee against Torture report December 2013.
Kyrgyzstan chapter of the 2013 Annual Report by Amnesty International.
Human Rights Watch’s “World Report 2013: Kyrgyzstan”.
Human Rights Watch “Kyrgyzstan: 3 Years After Violence, a Mockery of Justice”, June 2013.
Kyrgyzstan chapter of the 2014 World Report by Human Rights Watch.