ECtHR - Zarmayev v. Belgium, Application no. 35/10

Facts:

The applicant, Arbi Zarmayev, is a Russian national of Chechen origin who was born in 1972 and lives in Brussels.

Mr Zarmayev arrived in Belgium in 2002 and obtained political asylum there in 2005 under a false identity. In 2009 he was arrested for participating in a number of offences, including robbery. After weapons were found in his house, Mr Zarmayev was questioned by the criminal investigation department  and interviewed by the office of the Commissioner General for Refugees and Stateless Persons (CGRS), which withdrew his refugee status. Between 2009 and 2013, Mr Zarmayev unsuccessfully lodged four successive asylum applications.

In the meantime, the Russian authorities requested his extradition to Russia, where he was charged for aiding and abetting a murder. Having been found guilty on the charges brought against him in Belgium, Mr Zarmayev was sentenced to 18 months’ imprisonment. After serving the sentence, he was kept in custody pending a decision concerning his extradition. In 2011 the Belgian authorities took the decision to extradite Mr Zarmayev. All his appeals against extradition in Belgium were dismissed. On request by Mr Zarmayev, the European Court of Human Rights applied an interim measure in 2011 and asked the Belgian authorities not to extradite him to Russia. In his reply to the Government’s observations, Mr Zarmayev provided new information on events that he alleged to have experienced as a combatant in the Chechen wars. He also stated that he had fled his country because he was being actively pursued by the Russian army and his family were being persecuted.

Mr Zarmayev alleges that his extradition to the Russian Federation would entail a violation of Article 3 (prohibition of inhuman or degrading treatment) and would deprive him of the guarantees enshrined in Article 6 § 1 (right to a fair hearing). Under Articles 3 and 5 § 1 (right to liberty and security), he further complains that he was ill-treated during his detention in Belgium and that the decision to detain him was arbitrary.

Decision & reasoning:

The European Court of Human Rights, after noting that the situation in Chechnya is not serious enough to warrant a general prohibition of returns on Article 3 grounds, ruled that the applicant’s personal circumstances did not justify finding a violation if he is extradited.

The Court’s reasoning was based on internal inconsistencies in the applicant’s version of events, unexplained additions to his account, and the unreliability of the letters of support produced by the applicant. The Court further noted that the applicant is at no risk of life imprisonment, and diplomatic assurances indicate that the applicant, if convicted, will be detained in a Convention-compliant institution. The Belgian embassy will be permitted to visit the applicant and talk with him unsupervised.

The Court reiterated that Belgian authorities carried out a careful and diligent examination of the diplomatic assurances provided by the Russian government and attached particular importance to the fact that these assurances were submitted by a State Party to the Convention committed to respect the rights guaranteed therein.

In relation to the allegation that the Russian authorities could prosecute and convict the applicant for reasons other than those provided in for the extradition request, the Court noted that he will be protected by the rule of specialty enshrined in Article 14 of the European Convention on Extradition.  This provision enshrines that he could not be prosecuted or sentenced or detained for any offence committed prior to his surrender other than that for which he was extradited.

The Court concluded that the applicant's extradition to the Russian Federation does not violate Article 3 of the Convention. The applicant’s complaints under Articles 5 and 6 were summarily ruled inadmissible by the Court.

Outcome:

No violation of Article 3;

Complaints under Articles 5 and 6 were summarily ruled inadmissible by the Court.

Observations/comments:

The Russian government fully supported the argumentation of the Belgian government in relation to extradition arrangements. It confirmed that the applicant is wanted by Russia for a non-political crime and that diplomatic assurances provided to the Belgian authorities will be respected.

Dissenting opinion of Judge Power-Forde

Judge Power-Forde noted that, in principle, it is doubtful that diplomatic assurances may provide sufficient and compelling guarantees against torture and other forms of ill-treatment. At the very least, an essential criterion in order to accept such assurances must be a guarantee that the agents of the requesting state do not inflict torture or ill-treatment on persons under their jurisdiction, or do not otherwise participate in serious human rights violations. Even in the case of Othman, the Court confirmed that the quality of assurances and practices should be considered in the light of the host country record.

The judge continued that it is clear from the ECtHR case law that the membership of the Council of Europe does not in itself guarantee that fundamental rights are respected by the contracting parties. What matters is the record of a state. She highlighted that neither in this case nor in Gasayev v Russia did the Court mention in how many instances it have condemned Russia for its repeated violations of human rights, particularly in relation to Chechens. According to her, the Court omits any reference to its conclusion in the judgment of Shamayev that Russia had violated the Convention by failing to comply with its previous assurances while, according to Othman judgment, "the past actions of the country is an important factor that the Court must take into account”.

She maintained that by failing to take into account these issues of obvious importance in assessing the facts of the case, the majority leaves unanswered the most critical question: If a country fails to meet its obligations under international human rights treaties it has ratified, why should we be sure it will comply with the assurances given on a bilateral basis in a particular case?

The Judge recommends the referral of this case to the Grand Chamber. 

Other sources:

Penal Code of the Russian Federation

Belgian Extradition Law of 15 March 1874

The European Convention on Extradition, 13 December  1957

ECRE’s Chechen Guidelines, 2011

World Report 2013, Human Rights Watch