CASE OF TURGUNOV v. RUSSIA

FIRST SECTION

CASE OF TURGUNOV v. RUSSIA

(Application no. 15590/14)

JUDGMENT

STRASBOURG

22 October 2015

FINAL

14/03/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Turgunov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

András Sajó, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 29 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15590/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Kyrghyzstan, Mr Botir Turdivayevich Turgunov (“the applicant”), on 20 February 2014.

2. The applicant was represented by Ms O. Tseytlina and Mr Y. Serov, lawyers practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that his extradition to the Kyrgyz Republic would subject him to the risk of ill-treatment and that he had had no effective domestic remedy in respect of this complaint.

4. On 24 February 2014 the Court applied an interim measure pursuant to Rule 39 of the Rules of Court and indicated to the Government that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court. The Court also required the Russian Government to put in place an appropriate mechanism tasked with both preventative and protective functions, in order to ensure that the applicant benefited (in particular following his release from detention) from immediate and effective protection against unlawful or irregular removal from the territory of Russia and the jurisdiction of the Russian courts.

5. On 17 April 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1979 in the town of Osh, Kyrgyzstan, and lives in St Petersburg.

A. Criminal proceedings against the applicant in Kyrgyzstan and his arrest and detention in Russia

7. The applicant is an ethnic Uzbek. In June 2010 ethnic violence erupted in the town of Osh, where the applicant lived at the material time, during which around 400 people were killed.

8. On 15 July 2010 the applicant came to Russia, and has not returned to Kyrgyzstan since.

9. On 9 April 2012 the police of the town of Osh charged the applicant in absentia with participation in the mass riots and several other offences.

10. On 10 April 2012 the Osh Town Court issued an arrest warrant against the applicant, and on 20 April 2012 his name was put on the cross‑border wanted list.

11. On 23 January 2013 the applicant was arrested in St Petersburg and remanded in custody two days later by a court order. His detention was extended several times.

12. On 7 March 2014 the St Petersburg transport prosecutor noted the interim measure indicated by the Court and ordered the applicant’s release from detention under the personal guarantee of his lawyer.

B. Extradition proceedings

13. On 11 February 2013 the Kyrgyzstan Prosecutor General’s Office requested the applicant’s extradition for prosecution for participation in mass riots in June 2010, intentional infliction of grievous bodily injury and use of violence against a police officer, car-jacking, and intentional destruction of property.

14. On 24 May 2013 the applicant’s lawyer submitted to the Prosecutor General of Russia a letter referring to reports of international organisations and the Court’s case-law evidencing that there was a high risk that the applicant would be subjected to inhuman treatment if he were extradited.

15. On 24 July 2013 a deputy Prosecutor General of the Russian Federation granted the request of the Kyrgyzstan Prosecutor General’s Office for the applicant’s extradition. He held that there were no grounds in Russian or international law for refusing to extradite the applicant.

16. The applicant appealed, maintaining that, as a member of the ethnic Uzbek community which was being persecuted and discriminated against, he ran a serious and real risk of being subjected to torture in detention.

17. On 6 November 2013 the St Petersburg City Court rejected that appeal, finding as follows:

“Taking into account the materials submitted, there are no grounds under Article 464 of the Criminal Procedure Code of Russia that exclude the possibility of extraditing an individual ...

The applicant’s argument that the extradition is unlawful because he has refugee proceedings pending is untenable, and the arguments about his possible persecution by the law-enforcement authorities of Kyrgyzstan because of his ethnic origin are unsubstantiated and do not constitute a ground to refuse the extradition. The information of [the Ministry for Foreign Affairs of Russia] according to which the examination of the criminal case against [the applicant] by the authorities of Kyrgyzstan might be biased, is conjecture and is not based on any proof ...

The Prosecutor General of Kyrgyzstan has provided assurances that, according to the standards of international law and the criminal law of Kyrgyzstan, [the applicant] would be afforded all means of defence, including legal assistance, would not be handed to a third country without the approval of the Russian Prosecutor General, or charged with and convicted of any offence committed before the extradition and for which he was not extradited. He would not be subjected to torture or to cruel, inhuman and degrading treatment or punishment ...

Furthermore, the requesting party provided assurances that, after [the applicant’s] extradition to the Republic of Kyrgyzstan, Russian diplomats would be allowed to visit [the applicant] in remand prisons to ensure respect for his rights ...

The evidence submitted by the defence, according to which persecution of ethnic Uzbeks in connection with the events of 2010 continues in Kyrgyzstan, concerns isolated cases and cannot be regarded as evidence that [the applicant] will be subjected to cruel treatment, bearing in mind that he is accused of an offence which is not political in nature; there are currently measures put in place by the authorities of the Republic of Kyrgyzstan to remedy the violations of human rights disclosed by international organisations ... furthermore, the requesting party provided sufficient and real assurances that [the applicant’s] right to a fair trial would be respected and that he would not be subjected to ill-treatment. The general situation in the Republic of Kyrgyzstan was thoroughly analysed in the decision refusing [the applicant] refugee status by the St Petersburg Regional Office of the Federal Migration Service.”

18. The applicant’s lawyers appealed against that decision, arguing that the first-instance court had failed to address their arguments concerning the risk that the applicant would be subjected to inhuman treatment if extradited.

19. By its final decision of 25 February 2014 the Supreme Court of the Russian Federation, having endorsed the lower court’s reasoning, rejected the appeal.

C. Refugee status proceedings

20. On 6 February 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to grant him refugee status. He pointed out that he feared returning to Kyrgyzstan, where he would face arbitrary prosecution and inhuman treatment.

21. On 29 May 2013 the St Petersburg Regional Office of the Federal Migration Service refused the above request for lack of reasons which would justify the applicant’s allegations. In particular, it found that the latter had referred to the events of 2010 as a pretext to avoid criminal prosecution. The Regional Office further analysed the situation in Kyrgyzstan on the basis of several news items of mainly Kyrgyz and Russian newspapers and information agencies. Referring to these items, it stated that “... the situation in Kyrgyzstan had substantially changed, the inter-ethnic clashes had ceased, and the government was taking enhanced measures to protect citizens and to improve the social and economic situation in the country”.

22. On 23 August 2013 the Federal Migration Service of the Russian Federation upheld this decision. The applicant complained before the Moscow Basmanniy District Court.

23. On 3 December 2013 the Basmanniy District Court dismissed the complaint. It endorsed the findings of the migration authorities and noted that the applicant was not a member of any political, religious, military or non-governmental organisations. Neither had he been persecuted or threatened by the authorities. Therefore, there was neither a threat to the applicant’s life nor any medical indications indicating a need for urgent medical intervention.

24. On 20 May 2014 the Moscow City Court upheld the decision of 3 December 2013 on appeal.

D. Temporary asylum proceedings

25. On 20 September 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to provide him with temporary asylum in the Russian Federation.

26. On 26 November 2013 his request was refused. According to the applicant, he was not informed of this decision.

27. On 5 May 2014 the applicant lodged a new application for temporary asylum, which was dismissed on 1 August 2014.

28. On 1 October 2014 the applicant’s lawyer lodged an appeal against the decision of 1 August 2014. However, the outcome of the appeal remains unknown.

II. RELEVANT DOMESTIC LAW AND PRACTICE

29. For a summary of relevant domestic law and practice see Abdulkhakov v. Russia (no. 14743/11, §§ 71‑78, 83‑93, and 95‑98, 2 October 2012).

III. RELEVANT INTERNATIONAL DOCUMENTS AND MATERIAL CONCERNING KYRGYZSTAN

30. For relevant international documents see Abdulkhakov v. Russia (cited above, §§ 79‑82 and 94).

31. For a number of relevant reports and items of information concerning Kyrgyzstan, see Khamrakulov v. Russia (no. 68894/13, §§ 38‑45, 16 April 2015, with further references).

32. The Kyrgyzstan chapter of the 2015 World Report published by Human Rights Watch reads, in so far as relevant, as follows:

“Since the outbreak of ethnic violence in June 2010, Kyrgyzstan’s flawed justice process has produced long prison sentences for mostly ethnic Uzbeks after convictions marred by torture-tainted confessions and other due process violations. Seven further cases related to crimes committed during the violence are pending, including that of a man detained in July 2014. All defendants are ethnic Uzbeks, reinforcing concerns of judicial bias.

Impunity for violent physical and verbal attacks at some hearings continued in 2014, undermining defendants’ fair trial rights. After a January hearing in the case of Mahamad Bizurukov, an ethnic Uzbek defendant standing trial for June 2010-related crimes, the United States embassy issued a statement expressing deep concern. ...

Although the government acknowledges that torture occurs in Kyrgyzstan, impunity for torture remains the norm. Criminal cases into allegations of ill-treatment or torture are rare, and investigations and trials are delayed or ineffective.

In its June concluding observations, the UN Committee on the Rights of the Child (CRC) expressed concern about “widespread torture and ill-treatment of children” in detention and closed institutions and called for prompt and effective independent investigations.

According to statistics provided by the Prosecutor General’s Office to Golos Svobody, a local anti-torture group, authorities declined to open criminal investigations into 100 of 109 registered complaints of torture in the first half of 2014.

Monitors from the National Center for the Prevention of Torture encountered some problems accessing places of detention. After one incident in March, the center filed a complaint against the director of the Issyk Kul region temporary detention facility for refusing the monitors entry, but at time of writing the director had not been held accountable.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

33. The applicant complained that if extradited to Kyrgyzstan he would be subjected to torture or inhuman or degrading treatment or punishment because he belonged to the Uzbek ethnic minority. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. Submissions by the parties

34. The Government pleaded that the applicant had failed to exhaust available effective domestic remedies in respect of his complaint under Article 3 of the Convention. In particular, they submitted that the applicant had failed to appeal against the refusal to grant him temporary asylum of 26 November 2013. If the applicant had been granted temporary asylum, his extradition would have been suspended or even rescinded. The Government also submitted that the applicant had failed to lodge a cassation appeal under Chapter 48.1 of the Russian Code of Criminal Procedure (“the CCrP”) against the Supreme Court’s appeal judgment of 25 February 2014 upholding the extradition order.

35. The applicant submitted that he had exhausted all effective domestic remedies. In addition to challenging the extradition order, he had applied for refugee status, even though in practice such applications did not impede the enforcement of extradition orders. The applicant further submitted that an application for temporary asylum was not an effective remedy on account of its discretionary and temporary nature.

2. The Court’s assessment

36. As for the Government’s argument that the applicant should have lodged cassation appeals pursuant to Chapters 48.1 of the CCrP, the Court observes that they have previously accepted that such appeals did not have “automatic suspensive effect”, and thus there was no obligation to use that remedy (see Gayratbek Saliyev v. Russia, no. 39093/13, §§ 49 and 58, 17 April 2014). As for temporary asylum, the Court reiterates that the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged. Even if such an application were granted, the remedy would be only temporary, and thus could not afford redress in respect of the applicant’s complaint under Article 3 of the Convention. Having regard to the above, the Court rejects the Government’s objection.

37. The Court furthermore finds that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

38. The Government contested the applicant’s allegations. They argued that the general human rights situation in Kyrgyzstan had improved since the events of June 2010. The Government referred to the work of the Independent International Commission of Inquiry into the events in Southern Kyrgyzstan in June 2010.

39. According to the Government, Kyrgyzstan had enhanced its cooperation with the UN and other international organisations, and had ratified all fundamental international conventions on human rights. The Kyrgyz Republic also reformed its legislation, including the Constitution, to ensure respect for human rights and protection from discrimination. Kyrgyzstan abolished the death penalty and introduced the prohibition of torture and ill-treatment into its Constitution and Criminal Code.

40. In the Government’s view, even if some international reports still voiced concerns as to the human rights situation in Kyrgyzstan, reference to a general problem concerning human rights observance in a particular country could not alone serve as a basis for refusing extradition in accordance with the Court’s case-law.

41. The Government further indicated that the Prosecutor General’s Office of the Kyrgyz Republic had provided the applicant with adequate assurances against the risk of ill-treatment. The Government also referred to additional assurances developed by the Russian and Kyrgyz authorities which would allow Russian diplomatic staff visiting the place of the applicant’s detention to make sure that his rights were being respected. The Government referred in this respect to a letter of 30 July 2013 sent by the Kyrgyz authorities to the Russian Foreign Ministry.

42. In the Government’s view, there were no reasons to doubt the assurances provided by the Prosecutor General’s Office of the Kyrgyz Republic, as it had been acting within its competence and the relations between the two countries were based on long and stable cooperation.

43. The Government pointed out that in the course of their cooperation on extradition matters there had been no instances of violations of the assurances provided by Kyrgyzstan. They referred to information from the Kyrgyz Republic regarding the outcomes of criminal prosecution of extradited persons. The Government cited examples of three individuals of Uzbek ethnic origin who had variously received a suspended sentence, been released on parole, and whose criminal case had been dismissed.

44. The Government claimed that the applicant had failed to provide substantial evidence that he would risk ill-treatment if extradited to Kyrgyzstan. They submitted that the domestic authorities and courts had thoroughly examined his allegations concerning the risk of ill-treatment in Kyrgyzstan in the course of the refugee status and extradition proceedings. The applicant had been able to attend those proceedings and to present his position, and had used his right of appeal against the judgments.

45. The applicant maintained that he was still at serious and real risk of ill-treatment in Kyrgyzstan. He claimed that the general human rights situation in Kyrgyzstan had not improved since the examination of the Makhmudzhan Ergashev case (see Makhmudzhan Ergashev v. Russia, no. 49747/11, 16 October 2012), referring to reports by the UN bodies and reputable international NGOs, as well as to the Court’s case-law.

46. In the applicant’s view, the diplomatic assurances relied on by the Government could not suffice to protect him against the risks of ill‑treatment in the light of the criteria established in the case of Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, § 189, ECHR 2012 (extracts)). There was no evidence that Russian diplomatic staff actually visited individuals extradited to Kyrgyzstan. Moreover, no monitoring procedure by an independent body had been set up, and Russian diplomatic staff could not be considered sufficiently independent to ensure effective follow-up of Kyrgyzstan’s compliance with their undertakings. The applicant submitted that the Government’s example of three individuals of Uzbek ethnic origin released after their extradition to Kyrgyzstan was not indicative, as none of those individuals had been accused of crimes related to the events of June 2010. He further submitted that Government failed to adduce a copy of the letter of 30 July 2013, concerning the assurances given to the Russian Foreign Ministry, to which they referred in their observations.

47. The applicant pointed out that the Russian authorities had failed to assess the risks of ill-treatment in the course of the extradition and refugee status proceedings. In the domestic proceedings he had relied on reports by UN bodies and reputable international NGOs, which had demonstrated that in Kyrgyzstan ethnic Uzbeks who, like him, were suspected of involvement in the violence of June 2010 in Osh, were at increased risk of ill-treatment while detained, and that it was common practice not to investigate instances of torture or inhuman treatment in the requesting country. The applicant claimed that the migration authorities and domestic courts either examined such reports only formally or failed to address them at all.

2. The Court’s assessment

48. The Court will examine the merits of this part of the applicant’s complaint under Article 3 in the light of the applicable general principles set out in, among other cases, Umirov v. Russia (no. 17455/11, §§ 92‑100, 18 September 2012, with further references).

49. The Court observes that the Russian authorities ordered the applicant’s extradition to Kyrgyzstan. The extradition order has not been enforced as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court. The Court will therefore assess whether the applicant faces a risk of treatment contrary to Article 3 in the event of his extradition to Kyrgyzstan – the material date for the assessment of that risk being that of the Court’s consideration of the case – taking into account the assessment made by the domestic courts (see, mutatis mutandis, Bakoyev v. Russia, no. 30225/11, § 113, 5 February 2013).

50. Turning to the general human rights climate in the requesting country, the Court makes the following observations. In a number of previous cases concerning extradition to Kyrgyzstan it found that the situation in the south of the country was characterised by torture and other ill‑treatment of ethnic Uzbeks by law-enforcement officers (see Khamrakulov v. Russia, cited above, § 65; Mamadaliyev v. Russia, no. 5614/13, § 60, 24 July 2014; Kadirzhanov and Mamashev v. Russia, nos. 42351/13 and 47823/13, § 91, 17 July 2014; Gayratbek Saliyev v. Russia, cited above, § 61; and Makhmudzhan Ergashev v. Russia, cited above, §§ 71-73). Such incidents had increased in the aftermath of the events of June 2010 and remained widespread and rampant, being aggravated by the impunity of law‑enforcement officers. Moreover, the Court established that the issue ought to be seen in the context of the rise of ethnic nationalism in the politics of Kyrgyzstan, particularly in the south, the growing inter-ethnic tensions between Kyrgyz and Uzbeks, continuing discriminatory practices faced by Uzbeks at the institutional level, and the under‑representation of Uzbeks in, amongst others, law-enforcement bodies and the judiciary (see Makhmudzhan Ergashev, cited above, § 72). As is clear from reports by UN bodies and reputable NGOs, in 2012-14 the situation in the southern part of Kyrgyzstan had not improved. In particular, various reports are consistently in agreement when describing biased attitudes based on ethnicity in investigations, prosecutions, condemnations and sanctions imposed on ethnic Uzbeks charged and convicted in relation to the events in the Osh Region. They also agree about the lack of full and effective investigations into the numerous allegations of torture and ill‑treatment imputable to Kyrgyz law-enforcement agencies, arbitrary detention and excessive use of force against Uzbeks allegedly involved in the events of June 2010 (see Khamrakulov, cited above, §§ 40-45). Accordingly, the Court concludes that the current overall human rights situation in Kyrgyzstan remains highly problematic (see, mutatis mutandis, Klein v. Russia, no. 24268/08, § 51, 1 April 2010).

51. The Court will now examine whether there are any individual circumstances substantiating the applicant’s fears of ill-treatment (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I). It reiterates in this connection that where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the protection of Article 3 enters into play when the applicant establishes, where necessary on the basis of information contained in recent reports by independent international human rights protection bodies or NGOs, that there is serious reason to believe in the existence of the practice in question and his or her membership of the group concerned. In those circumstances, the Court will not then insist that the applicant show the existence of further special distinguishing features (see Saadi v. Italy [GC], no. 37201/06, § 132, ECHR 2008, and NA. v. the United Kingdom, no. 25904/07, § 116, 17 July 2008). The Court considers that this reasoning is of particular relevance in the present case, where the applicant, an ethnic Uzbek, is charged with a number of serious offences allegedly committed in the course of the violence of June 2010 (see, by contrast, Makhmudzhan Ergashev, cited above, § 73). Given the widespread use by the Kyrgyz authorities of torture and ill-treatment to obtain confessions from ethnic Uzbeks charged with involvement in the inter-ethnic riots in Southern Kyrgyzstan, which has been reported both by UN bodies and reputable NGOs (see paragraphs 31 and 32 above), the Court is satisfied that the applicant belongs to a particularly vulnerable group, whose members are routinely subjected to treatment proscribed by Article 3 of the Convention in the requesting country.

52. The Court further observes that the above circumstances were brought to the attention of the Russian authorities (see paragraphs 14, 16, 18 and 20 above). The applicant’s refugee application was rejected as inadmissible by the migration authorities, which found – and their finding was subsequently confirmed by the domestic courts – that the applicant was not eligible for refugee status because there was no evidence that he was being persecuted on the grounds of his ethnic origin. The migration authorities considered that the situation in Kyrgyzstan in the aftermath of the June 2010 events had significantly changed, and referred to a number of sources in this regard (see paragraph 21 above). However, the Court considers that the sources relied on by the migration authorities – mainly news items from newspapers and information agencies – should be treated with greater circumspection than reports by international organisations and reputable NGOs specialising in human rights issues. The information analysed was not comprehensive, as it had not addressed the thrust of the applicant’s arguments about the risk of ill-treatment by the law-enforcement authorities in Kyrgyzstan.

53. As for the extradition proceedings, the Court notes the summary reasoning put forward by the domestic courts in respect of materials originating from the sources that the Court considers reliable, such as reports by international organisations and reputable NGOs (see paragraphs 17 and 19 above). Both the St Petersburg City Court and the Supreme Court of Russia, as far as the situation in Kyrgyzstan was concerned, referred to the decision of 29 May 2013 of the migration authorities, which had clearly failed to touch upon the issue of the risk of ill‑treatment.

54. In such circumstances, the Court is not convinced that the issue of the risk of ill-treatment was subjected to a rigorous scrutiny in the refugee status or extradition proceedings (see Abdulkhakov v. Russia, cited above, § 148).

55. It remains to be considered whether the risk to which the applicant would have been exposed if extradited had been alleviated by the diplomatic assurances provided by the Kyrgyz authorities to the Russian Federation. According to the assurances given, the applicant would not be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and Russian diplomatic staff would be given an opportunity to visit him in the detention facility (see paragraph 17 above).

56. Even accepting for the sake of argument that the assurances in question were not couched in general terms, the Court observes that Kyrgyzstan is not a Contracting State to the Convention, nor have its authorities demonstrated the existence of an effective system of legal protection against torture that could act as an equivalent to the system required of the Contracting States. Moreover, it has not been demonstrated before the Court that Kyrgyzstan’s commitment to guaranteeing access to the applicant by Russian diplomatic staff would lead to effective protection against proscribed ill-treatment in practical terms, as it has not been shown that the aforementioned staff would be in possession of the expertise required for effective follow-up of the Kyrgyz authorities’ compliance with their undertakings. Nor was there any guarantee that they would be able to speak to the applicant without witnesses. In addition, their potential involvement was not supported by any practical mechanism setting out, for instance, a procedure by which the applicant could lodge complaints with them or for their unfettered access to detention facilities (see, mutatis mutandis, Nizomkhon Dzhurayev v. Russia, no. 31890/11, §§ 132-33, 3 October 2013). There is no evidence that Russian diplomatic staff have visited any individuals in Kyrgyzstan after their extradition. Therefore the assurances provided cannot be considered as an illustration of the existence of a monitoring mechanism in the requesting country (see, by contrast, Othman (Abu Qatada), cited above, §§ 203-04).

57. In view of the above considerations, the Court cannot accept the Government’s assertion that the assurances provided by the Kyrgyz authorities were sufficient to exclude the risk of his exposure to ill-treatment in the requesting country.

58. Considering the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the south of Kyrgyzstan in respect of members of the Uzbek community, to which the applicant belongs, and the absence of sufficient safeguards for the applicant in the requesting country, the Court finds it substantiated that the applicant would face a real risk of treatment proscribed by Article 3 if returned to Kyrgyzstan.

59. Accordingly, the Court finds that the applicant’s extradition to Kyrgyzstan would, if executed, give rise to a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

60. The applicant contended that he had had no effective remedies in respect of his complaint under Articles 3 of the Convention, in breach of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] 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.”

61. The Court considers that the gist of the applicant’s claim under Article 13, which it finds admissible, is that the domestic authorities failed to carry out a rigorous scrutiny of the risk of ill-treatment the applicant would face in the event of his extradition to Kyrgyzstan. The Court has already examined that submission in the context of Article 3 of the Convention. Having regard to its findings above, the Court considers that there is no need to examine this complaint separately on its merits (see, for a similar approach, Mukhitdinov v. Russia, no. 20999/14, § 79, 21 May 2015).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

63. The applicant asked the Court to determine the amount.

64. The Government considered that a finding of a violation in itself would constitute sufficient just satisfaction.

65. The Court considers that its finding that the applicant’s extradition, if carried out, would breach Article 3 of the Convention constitutes sufficient just satisfaction.

B. Costs and expenses

66. The applicant also claimed 140,000 roubles (RUB) and 600 euros (EUR) for the costs and expenses incurred before the domestic courts and before the Court. He enclosed a number of legal-services contracts between his representatives in the domestic and Strasbourg proceedings, on the one hand, and the non-governmental organisations Human Rights Institute (Moscow) and Memorial (Brussels), on the other hand.

67. The Government pointed out that the applicant did not produce any time-sheets and that his legal expenses had been paid for by third parties.

68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. It transpires from the applicant’s documents that the legal costs in the domestic and Strasbourg proceedings were paid for by two non‑governmental organisations. It has not been shown that the applicant himself incurred any costs or is liable to reimburse the amounts paid by the non-governmental organisations. That being so, the Court rejects his claims (see Voskuil v. the Netherlands, no. 64752/01, § 92, 22 November 2007, and Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 22 in fine, Series A no. 59).

IV. RULE 39 OF THE RULES OF COURT

69. In accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.

70. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above paragraph 4) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that the applicant’s extradition to Kyrgyzstan would amount to a violation of Article 3 of the Convention;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

4. Holds that its finding made under Article 3 of the Convention constitutes sufficient just satisfaction as regards the claim for compensation for non‑pecuniary damage;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

6. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to extradite the applicant until such time as the present judgment becomes final or until further order.

Done in English, and notified in writing on 22 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenAndrás Sajó
RegistrarPresident

 

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