Last Updated on April 29, 2022 by LawEuro
Information Note on the Court’s case-law 261
April 2022
Khasanov and Rakhmanov v. Russia [GC] – 28492/15 and 49975/15
Judgment 29.4.2022 [GC]
Article 3
Extradition
No real individual risk of ill-treatment in case of extradition of ethnic Uzbeks to Kyrgyzstan: extradition would not entail a violation
Facts – The applicants, both nationals of Kyrgyzstan, faced extradition to that country where they were wanted on charges of aggravated misappropriation (first applicant) and several counts of aggravated robbery, destruction of property and murder (second applicant). In the proceedings concerning their extradition and their requests for refugee status, their allegations that they were at risk of persecution and ill-treatment in Kyrgyzstan because they belonged to a vulnerable ethnic group were dismissed. The applicants’ extradition was stayed on 16 June and 12 October 2015, respectively, on the basis of an interim measure granted by the Court under Rule 39 of the Rules of Court, which indicated to the Russian Government that they should not be removed for the duration of the proceedings before it. The applicants were released from detention in 2014 and 2015 respectively.
The applicants complain that in the event of their extradition to Kyrgyzstan they would face a real risk of ill-treatment contrary to Article 3 because they belonged to the Uzbek ethnic minority. In a judgment of 19 November 2019, a Chamber of the Court found, by five votes to two, that there would be no violation of Article 3 if the applicants were extradited. On 15 April 2020 the case was referred to the Grand Chamber at the applicants’ request.
Law –
Article 3:
(a) General principles established in the Court’s case-law –
(i) Prohibition on exposing aliens facing removal to a risk of ill-treatment – In extradition cases, a Contracting State’s obligation to cooperate in international criminal matters was subject to the same State’s obligation to respect the absolute nature of the prohibition under Article 3. Therefore, any claim of a real risk of treatment contrary to that provision in the event of extradition to a certain country must be subjected to the same level of scrutiny regardless of the legal basis for the removal.
(ii) Scope of the assessment: general situation and individual circumstances – The risk assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances. If substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3, the applicant’s removal would necessarily breach that article, regardless of whether the risk emanated from a general situation of violence, a personal characteristic of the applicant, or a combination of the two.
In cases such as the present one a three-tier assessment had to be carried out.
– First, the general situation in the destination country had to be examined and, where relevant, whether there was a general situation of violence existing in that country. The existence of the latter would not normally in itself entail a violation of Article 3 in the event of an expulsion to the country in question, unless the level of intensity of the violence, was sufficient to conclude that any removal to that country would necessarily breach that provision.
– Second, the assessment of a claim concerning systematic ill-treatment of a member of a group was different from the assessment relating to the general situation of violence in a particular country, on the one hand, and to individual circumstances, on the other. The Court in such cases had to examine whether the existence of a group systematically exposed to ill-treatment, falling under the “general situation” part of the risk assessment, had been established. Applicants belonging to an allegedly targeted vulnerable group should not describe the general situation but the existence of a practice or of a heightened risk of ill-treatment for the group of which they claimed to be members. They then had to establish their individual membership of the group concerned, without having to demonstrate any further individual circumstances or distinguishing features.
– Third, when it could not be established that a group was systematically exposed to ill-treatment, despite a possible well-founded fear of persecution in relation to certain risk-enhancing circumstances, the applicants had to demonstrate the existence of further special distinguishing features which would place them at a real risk of ill‑treatment. Failure to demonstrate such individual circumstances would lead the Court to find no violation of Article 3.
(iii) Nature of the Court’s assessment– The material point in time for the assessment must be that of the Court’s consideration of the case. A full and ex nunc evaluation was required where it was necessary to take into account information that had come to light after the final decision by the domestic authorities was taken. The existence of the risk had to be assessed primarily with reference to those facts which were known or ought to have been known by the Contracting State at the time of the expulsion. This proviso demonstrated that the primary purpose of the ex nunc principle was to serve as a safeguard in cases where a significant amount of time had passed between the adoption of the domestic decision and the consideration of an applicant’s Article 3 complaint by the Court, and therefore where the situation in the receiving State might have developed, that is to say, deteriorated or improved. Any finding in such cases regarding the general situation in a given country and its dynamic as well as the finding as to the existence of a particular vulnerable group, was in its very essence a factual ex nunc assessment made by the Court on the basis of the material at hand. Accordingly, any examination of whether there had been an improvement or a deterioration in the general situation in a particular country amounted to a factual assessment and was amenable to revision by the Court in the light of changing circumstances. There was therefore nothing to preclude such a re-examination of the general situation from being carried out by a Chamber in a judgment dealing with an individual case.
(b) Application of the general principles established to the instant case – Between 2012 and 2016 the Court had examined nine cases concerning extraditions of ethnic Uzbeks from Russia to Kyrgyzstan in which it had found that they continued to run a real risk of ill‑treatment. While it had not considered the general human rights situation, though highly problematic, to be such as to prevent any extradition, it had established that specific reports described a targeted and systematic practice of ill-treatment against ethnic Uzbeks at the relevant time. The Court had to now ascertain whether the currently available information and material still supported a similar finding in respect of the applicants in the present case, such that their membership of that group sufficed to demonstrate the real risk alleged.
(i) The circumstances of the applicants’ cases – As almost six years had passed since the adoption of the final domestic judgments in the applicants’ cases, in accordance with the ex nunc principle, the Grand Chamber had to assess the existence of a real risk at the time of its consideration of the case.
(ii) General situation in Kyrgyzstan – The available reports of the United Nations human rights bodies and of international, regional and national NGOs describing the present-day situation in Kyrgyzstan continued to indicate that incidents of torture and ill‑treatment, a lack of effective investigations, and recurrent impunity were still major concerns for Kyrgyzstan and that, despite legal and institutional changes in that country, insufficient action had been taken by the Kyrgyz authorities to prevent torture and other ill‑treatment in practice. However, this material did not support a finding that the general situation in the country had either deteriorated as compared to the previous assessments, which had not led the Court to reach findings precluding all removals to Kyrgyzstan, or that it had reached a level calling for a total ban on extraditions to that country.
(iii) The situation of ethnic Uzbeks in Kyrgyzstan – The applicants’ claims combined elements relating to the general situation in Kyrgyzstan and to individual circumstances. As it had not been disputed that they were Kyrgyz nationals of ethnic Uzbek origin, the issue was whether there was reliable and objective proof that ethnic Uzbeks were a group which was systematically exposed to ill‑treatment in Kyrgyzstan. The Court had concluded in a number of judgments concerning the extradition to Kyrgyzstan of ethnic Uzbeks that they faced a real risk of ill-treatment as a consequence of their ethnic origin. In the instant case the Court had to focus its scrutiny as to whether they continued to run a heightened risk of ill‑treatment as compared to other persons in that country, this being the main point of disagreement between the parties.
In making its assessment, the Court took into account any indications of an improvement or worsening in the human rights situation in general or in respect of a particular group or area that might be relevant to the applicants’ circumstances. The Court’s previous findings that ethnic Uzbeks in Kyrgyzstan constituted a vulnerable group for the purposes of Article 3 had been based on specific reports describing a targeted and systematic practice of ill-treatment against that group at the relevant time. As regards the current situation, the Court noted the absence of specific reporting on ethnicity-based torture of ethnic Uzbeks, as opposed to other ethnicity-based risks, such as insecurity, discrimination with respect to economic and security matters, ethnic profiling and political. While in the aftermath of the ethnic clashes of June 2010 there had been specific evidence indicating that ethnic Uzbeks had been at a heightened risk of ill-treatment, the above-mentioned UN, international, regional and national reports no longer contained such indications. Consequently, there was no basis for reaching a conclusion that ethnic Uzbeks constituted a group which was still systematically exposed to ill‑treatment.
(iv) The applicants’ individual circumstances – The Russian courts had engaged with their Convention obligations by carefully and appropriately examining the existence of the individual risks capable of preventing the applicants’ extradition. Both applicants had failed to demonstrate to the domestic courts, the Chamber or the Grand Chamber the existence of ulterior political or ethnic motives behind their prosecution in Kyrgyzstan or further special distinguishing features which would expose them to a real risk of ill-treatment. In the absence of any demonstration of the existence of substantial grounds for believing that they would face a real risk of being subjected to treatment contrary to Article 3, this threshold had not been met by the applicants in the present case.
In view of the above findings, the Court did not deem it warranted to rule on the assurances provided by the Kyrgyz authorities in the applicants’ cases.
Conclusion: Extradition would not constitute a violation (unanimously)
Accordingly, the interim measures previously indicated to the respondent Government under Rule 39 of the Rules of Court came to an end.
(See also Makhmudzhan Ergashev v. Russia, 49747/11, 16 October 2012; Gayratbek Saliyev v. Russia, 39093/13, 17 April 2014; Kadirzhanov and Mamashev v. Russia, 42351/13, 17 July 2014; Mamadaliyev v. Russia, 5614/13, 24 July 2014; Khamrakulov v. Russia, 68894/13, 16 April 2015; Nabid Abdullayev v. Russia, 8474/14, 15 October 2015; Turgunov v. Russia, 15590/14, 22 October 2015; Tadzhibayev v. Russia, 17724/14, 1 December 2015; and R. v. Russia, 11916/15, 26 January 2016)
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