ECtHR - Khamrakulov v. Russia, Application no. 68894/13, 16 April 2015
| Country of applicant: | Kyrgyzstan |
| Court name: | European Court of Human Rights, First Chamber |
| Date of decision: | 16-04-2015 |
| Citation: | Khamrakulov v. Russia (Application no. 68894/13), 16 April 2015 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
The European Court of Human Rights found that extraditing a Kyrgyz national of Uzbek ethnic origin from Russia to Kyrgyzstan would give rise to inhumane and degrading treatment prohibited by article 3 of the European Convention on Human Rights (ECHR). It was also found that the repeated delays by the Russian authorities in hearing the applicant’s appeals against his detention in Russia constituted a violation of his article 5 para 4 rights to a speedy judicial decision on the lawfulness of the applicant’s detention between January 2013 and January 2014.
Facts:
The applicant is a Kyrgyz national of Uzbek ethnic origin who left Kyrgyzstan for Russia and had been living there since 24 September 2010.
On 3 February 2010 he was charged by the Kyrgyz authorities with violent crimes committed in June’s 2010 inter-ethnic clashes in Kyrgyzstan, namely participation in mass rioting, kidnapping, destruction and damage of property and was subsequently put on a wanted list. On 25 January 2013 he was arrested in Russia, with Kyrgyz authorities confirming their intention to seek his extradition.
On 26 January 2013 the Babushkinskiy District Court of Moscow ordered the applicant’s detention until 24 March 2013 with a view to extradition. Before the end of the detention, the Court had repeatedly extended the applicant’s detention until 24 January 2014. He was finally released on 22 January. All of his appeals against the subsequent detention orders were dismissed.His application for refugee status was also rejected based on the argument that he had not provided the authorities with sufficient proof that he was at real risk of prosecution if removed to Kyrgyzstan on the grounds of his Uzbek origin and for a crime he had not committed.
The applicant alleged that his extradition to Kyrgyzstan would expose him to ill treatment in breach of article 3 of the Convention (prohibition of torture and inhuman or degrading treatment).
He further complained that the judicial review of his detention had been neither speedy nor effective, in violation of article 5 para 4 of the Convention.
Decision & reasoning:
Concerning first the admissibility of the case in which the Russian Government have stated that the applicant had not exhausted all domestic remedies, the Court reiterated that such exhaustion requires an applicant to have recourse to available and sufficient remedies within the national legal system. As for the Government’s argument that the applicant should have lodged cassation appeals, the Court cited its ruling in Gayratbek Saliyev v. Russia(Application no. 39093/13) that no such obligation exists. As for temporary asylum, the Court reiterated that such exhaustion requires an applicant to have recourse to available and sufficient remedies within the national legal system [61].
With regards to the merits of the case, the Court noted that the general human rights situation in Kyrgyzstan had not improved since the examination of Makhmudzhan Ergashev v. Russia ( Application no. 49747/11)as evidenced from reports of the UN Committee on the Elimination of Racial Discrimination and respected international NGOs, as well as the Court’s case law.
Taking cue from Saadi v. Italy (no. 37201/06), the Court reiterated that where an applicant alleges that he/she is a member of a group systematically exposed to a practice of ill-treatment, the protection of article 3 applies as long as the applicant establishes the existence of the practice in question as well as his/her membership of the group concerned.
Taking into account the widespread use of torture and ill-treatment of the Kyrgyz’s authorities to obtain confessions from ethnic Uzbeks charged with involvement in the riots of June 2010, the Court is satisfied that the applicant belongs to a particularly vulnerable group, systematically subjected to treatment proscribed by article 3 of the Convention.
Further, the assurances provided by the Kyrgyz authorities to the Russian Federation that the applicant would not be subjected to inhuman or degrading punishment and that Russian diplomatic staff would visit him in detention do not constitute an independent/reliable monitoring mechanism and therefore cannot be taken into account.
As regards the applicant’s complaint under article 5 para 4 of the Convention, the Court recognized that the amount of time it took the Moscow City Court to examine the applicant’s appeals against the first-instance detention orders in the present case was excessive and therefore not in compliance with article 5 para 4 of the Convention.
Outcome:
Violation of article 3 in the event of the implementation of the extradition orders against the applicant.
Violation of article 5 para 4on the account of the length of the proceedings in the applicant’s appeal against the detention orders.
Just satisfaction: The Court awarded the applicant EUR 5,000 in respect of non-pecuniary damage and EUR 3,100 in respect of costs and expenses.
Observations/comments:
Following a Rule 39 interim measure of the Court the applicant was released from custody on 22 January 2014
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Russia - Criminal Procedures Code |
Cited Cases:
| Cited Cases |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - Mooren v. Germany [GC], Application No. 11364/03 |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Baranowski v Poland, Application No. 28358/95 |
| ECtHR - Rehbock v. Slovenia, Application No. 29462/95 |
| ECtHR - Klein v. Russia, Application No. 24268/08 |
| ECtHR - Othman (Abu Qatada) v. the United Kingdom, Application No. 8139/09 |
| Decision of the Commission X. v. UK from 12 March 1981, application no 8160/78 |
| Makhmudzhan Ergashev v Russia (no. 49747/11) |
| Abdulkhakov v. Russia (no. 14743/11) |
| Gayratbek Saliyev v. Russia, (no. 39093/13) |
| Klein v. Russia, (no. 24268/08) |
| Umirov v. Russia (no. 17455/11) |
| Nizomkhon Dzhurayev v. Russia, (no. 31890/11) |
| Lebedev v. Russia, (no. 4493/04) |
| Jablonski v. Poland, (no. 33492/96) |
| Yefimova v. Russia, (no. 39786/09) |
| Fadeyeva v. Russia, (no. 55723/00) |
| Bakoyev v. Russia (no. 30225/11) |
Follower Cases:
Other sources:
Human Rights Watch: “World Report 2013: Kyrgyzstan”
Human Rights Watch: “Kyrgyzstan: 3 Years After Violence, a Mockery of Justice”
Human Rights Watch: “World Report 2014: Kyrgyzstan”
Concluding observations on the second periodic report on Kyrgyzstan, 20 December 2013