ECtHR - R v Russia, Application no 11916/15, 26 January 2016

Facts:

The case relates to an ethnic Uzbek national of Kyrgyzstan who fled to Russia to avoid ethnically motivated violence. In 2012 he was charged by the Kyrgyz authorities with a number of crimes allegedly committed by him in inter-ethnic riots in June 2010, and his detention was ordered in absentia by a Kyrgyz district court.

In January 2015 he was arrested, detained in a facility for foreign nationals run by the Russian Federal Migration Authority, and convicted of an administrative offence as he was not carrying an identity document. He was sentenced by the Gagarinskiy District Court to a fine and administrative removal, with an order for his detention pending removal.

He appealed against this decision arguing that as an ethnic Uzbek he would be subject to ill-treatment. He applied for refugee status alongside these proceedings. Interim measures were granted by the ECtHR to prevent his removal from Russia on 10 March 2015. Two days later, his application for refugee status was dismissed and the applicant was taken to the airport. His relatives were told that he would be expelled, but after his lawyer arrived at the airport, he was informed that he had been returned to the detention centre. On 20 March 2015 his appeal against administrative removal was rejected by the appellate court, which considered that he had not demonstrated a risk of ill-treatment.

Decision & reasoning:

The Court first considered the possible violation of Article 3 of the Convention in the event the expulsion to Kyrgyzstan is implemented. To determine whether there would be a risk of inhuman treatment on the applicant’s return, the Court highlights the general human rights situation in the country as well as the individual circumstances of the applicant which may put him at a higher risk of ill-treatment. Citing NGO reports from Human Rights Watch and Amnesty International, the Court determines that due to the presence of ethno-nationalism, systematic ill-treatment or torture of ethnic-Uzbeks, impunity of law enforcement officers and a lack of effective investigation into numerous allegations of abuse of Uzbeks, the overall human rights situation is deemed to be highly problematic in Kyrgyzstan. This general climate coupled with the individual circumstances of the applicant, being an ethnic Uzbek and thus belonging to a vulnerable group, as well as having a criminal conviction for which he would be arrested and detained, is sufficient for the Court to conclude that the applicant would likely be subjected to treatment prohibited by Article 3.

Additionally, the Court rules that these circumstances of high risk were not sufficiently scrutinised in the asylum determination or the administrative removal proceedings by the Russian courts. Thus the Court declares that the applicant’s expulsion would be in violation of Article 3.

Secondly the Court determines a violation of Article 3 regarding the ill-treatment of the applicant at the detention centre in February 2015 for which there was no substantial investigation. Regarding a violation of the substantive limb or Article 3, the Court emphasises the absolute nature of the right under Article 3 and through discussion of case law such as Bouyid v Belgium, highlights the difficulty in justifying such violations and the importance of applying scrutiny when assessing a possible violation. Regarding the burden of proof, the Court declares that the respondent government must show beyond reasonable doubt that the applicant did not suffer ill treatment, through the use of evidence and accounts. The Court also notes that although there is no medical certificate to account for the applicant’s injuries, this is likely due to the refusal by medical staff to record detainee injuries, thus the photographic evidence of injuries is deemed appropriate evidence. The Court also dismisses the Government’s argument of unaccountability for the actions of civilians rather than state employees. Hence the Court declares that there has been a violation of the substantive limb of Article 3. Regarding the procedural limb of Article 3 and the need for an effective investigation into an infringement of Article 3, the Court notes that the Government did not provide information on an actual investigation, nor an account of measures or endeavours  taken to investigate the matter. In addition to refusing to open a criminal investigation into the applicant’s allegations, these considerations amount to a failure to carry out an effective investigation which is in breach of the procedural limb of Article 3.   

Lastly, the Court considers whether there has been a violation of Article 5 (4) of the Convention. The Court highlights the importance of an effective remedy being made available to a detainee during the detention period as well as the importance of access to a speedy judicial review of the decision placing the detainee in the detention centre. It is also noted that the existence of the remedy must be sufficiently certain in practice and by citing the Kim case the Court declares the Russian authorities ought to have implemented a mechanism in the domestic legal order allowing the examination of proceedings prior to expulsion. This mechanism was not present and the applicant did not have access to a speedy judicial review process for establishing the lawfulness of the detention. Therefore, the Court found a violation of Article 5 (4).

Regarding Article 5 (1), the Court affirms that in order for a deprivation of liberty to be lawful, the procedure (the detention and expulsion) must have a legal basis in domestic law and this national law must be accessible, precise and foreseeable in its application to prevent the deprivation of liberty being arbitrary. It is noted that the Russian Administrative Codes do not contain any provisions on the length of detention pending removal, merely a maximum length of detention which in itself is deemed ambiguous due to the uncertainty of the process after detention. Thus the Court declares the ‘foreseeability’ element of Article 5 (1) had not been met due to the lack of a legal basis and certainty for the detention period.

Outcome:

The Court found a violation of Article 3 on the involuntary removal/expulsion of the applicant to Kyrgyzstan.

The Court found a violation of Article 3 of the Convention on account of the applicants’ ill-treatment.

The Court found a violation of Article 3 on the absence of an effective investigation into the mistreatment of the applicant.

The Court found a violation of Article 5 (4) of the Convention.

The Court found a violation of Article 5(1) of the Convention.

The Court ruled the applicant be paid 26,000€ in non-pecuniary damages and 5,300€ in costs and expenses.

Observations/comments:

This case summary was written by Tazkia Rahman, GDL student at BPP University. 

Other sources:

Amnesty International report 2014/15: The state of the World’s Human Rights, Kyrgyzstan Chapter  

World Report 2015, Kyrgyzstan Chapter