ECtHR – U.N v. Russia, Application No. 14348/15, 28 November 2016

Facts:

The applicant is a Kyrgyzstan national, born in 1991 and is an ethnic Uzbek. In June 2010, due to the inter-ethnic clashes in his country, the applicant left Kyrgyzstan for Russia.

On 9 July 2010 the Kyrgyz authorities charged the applicant in absentia with violent crimes related to the clashes, including the kidnapping and murder of two law-enforcement officers.

Later on 12 July 2010 the applicant’s name was put on a national wanted list and on 16 September 2010 on an international wanted list.

On 23 January 2014, the applicant was apprehended in Vladivostok, Russia and placed in detention.

During his detention, the applicant admitted having participated in the beating of one of the law-enforcement officers in June 2010 but denied his involvement in other crimes for which he was to be prosecuted in Kyrgyzstan. Moreover, he informed that his father had been sentenced to life imprisonment for the murder of the same law-enforcement officers and suspected that he was himself also wanted by the Kyrgyz authorities.

On 24 January 2014, the District Court of Vladivostok decided to maintain the applicant in custody. His detention was subsequently extended several times until 23 July 2015.

On 29 January 2014 the Russian Prosecutor’s Office informed the Kyrgyz authorities about the applicant’s arrest.

Considering the possibility of being returned to Kyrgyzstan, on 7 February 2014 the applicant submitted his application for asylum to the Russian Region Department of the Federal Migration Service.

While the authorities were investigating the applicant in relation to his alleged crimes, on 11 February 2014 the Kyrgyz General Prosecutor’s Office requested the applicant’s extradition. Such request was accompanied by assurances that the applicant would not be subjected to torture or inhuman treatment and that Russian diplomats would be granted the opportunity to visit him.

On 23 April 2014 the Russian Immigration Authorities refused the asylum application arguing that despite the inter-ethnic conflicts existing in Kyrgyzstan, the applicant’s arrival to Russia was motivated by unemployment situation existing in his country of origin rather than his wish to escape from criminal prosecution.

After reviewing the request from the Kyrgyz authorities, on 17 October 2014 the Russian Deputy Prosecutor General granted the extradition request. The applicant appealed against this decision which was later rejected by a Regional Court in light of the diplomatic assurances given by the Kyrgyz authorities and the improvement of the situation in Kyrgyztan.

 This decision was later upheld by the Supreme Court who also added that

the Russian Consulate in such country was able to monitor the situation of persons already extradited.

However, the Russian Supreme Court recognised that the applicant belonged to a vulnerable group whose members were at risk of being subjected to torture by the law-enforcement agencies, according to international reports. Nevertheless, in absence of specific evidence submitted by the applicant that he would personally be subjected to torture or inhuman and degrading treatment, such circumstances were not enough to reject an extradition request.

On 27 July 2015 the applicant was released.

Decision & reasoning:

Decision:

The ECtHR declared that the applicant’s extradition to Kyrgyzstan would amount to a violation of Article 3 of the ECHR.

Reasoning:

a. Alleged Violation of Article 3 of the ECHR

The ECtHR noted that it has already examined on several occasions the situation of ethnic Uzbeks whose extradition was sought by the Kyrgyz authorities in relation to a number of serious offences they allegedly committed in the course of the violent inter-ethnic clashes between Kyrgyz and Uzbek nationals in June 2010.

In those cases (which are similar to this case) the ECtHR consistently held that, given the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in respect of members of the Uzbek community, the impunity of law-enforcement officers, and the absence of sufficient safeguards for the applicants in the requesting country, there were substantial grounds for believing that the applicants would face a real risk of exposure to treatment proscribed by Article 3 ECHR if returned to Kyrgyzstan.

In spite of this, Russian Authorities argued that the applicants could not demonstrate those circumstances to the Russian authorities neither during the extradition process nor during the refugee proceedings. Moreover, the authorities stated that the extradition was sought for the ordinary criminal offences that the applicant confessed.

However, considering the arguments of the Russian authorities and provided that the applicant belongs to a vulnerable group, the ECtHR argued that no matter how undesirable or dangerous the applicant’s conduct might have been, it cannot overturn the absolute prohibition of ill-treatment under Article 3 of the Convention.

Therefore, according to the aforementioned the ECtHR finds that the applicant’s forced return to his home country would be in violation of Article 3 ECHR.

b. Alleged violation of Article 5.4 ECHR

The ECtHR stated that there is a violation of Article 5.4 ECHR where an applicant was not able to bring about a judicial review of the lawfulness of his detention during a fixed period of detention. In this case, the applicant’s detention was authorised for a fixed period from 16 January 2015 to 23 July 2015. The changed circumstances which might have had an impact on the lawfulness of the detention were the ECtHR interim measure on 24 March 2015 and the extradition order becoming final on 25 March 2015.

There was therefore a period of four months during which it was not open to the applicant to bring about a judicial review of the lawfulness of his detention and therefore a violation to article 5.4 ECHR.

Outcome:

The Court found, unanimously, that the enforcement of the expulsion measure against the applicant would be a violation of the article 3 of the ECHR and order the Russian government not to expel him.

Moreover, the ECtHR hold that there was a violation of Article 5.4 of the ECHR.

Regarding damage, the Court considered that due to the violation of Article 5.4 ECHR, the Russian government should pay the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

With regards of costs and expenses, the applicant claimed a refund for the amount of EUR 4,600. The Court grant the applicant’s claim and ordered the Russian Government to pay the applicant the said amount within three months from the date on which the judgement becomes final.

Observations/comments:

The summary was written by Oscar Pajuelo, LLM student of Queen Mary University of London.