Defending potential victims of torture: UN Human Rights Committee’s ruling in case of Kesmatulla Khakdar

08.12.2014
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Joint press-release of ADC “Memorial” and “Migration and Law” Network

On October 17, 2014 the UN Human Rights Committee made a ruling in case of Kesmatulla Khakdar, a citizen of Afghanistan, who lived in Russia for a long time. The Committee stated that his deportation from the Russian Federation would be in violation of Article 7 (prevention of torture) of the International Covenant on Civil and Political Rights. This decision is of principal importance as it has considerably broadened the definition of “potential victim” of violation of the Covenant. This ruling will provide for better prevention of torture of other people who find themselves in a similar situation. The claimant in this case was represented by legal counselors Olga Tseitlina and Sergey Golubok, while the appeal was presented with the assistance of ADC “Memorial”.

The claimant, Kesmatulla Khakdar, in 1981-1985 fought against mujahideen in Afghanistan, was a member of the People’s Democratic Party, later was sent to the USSR to study journalism in 1989-1997 in the Leningrad State University. His wife and daughter are citizens of the Russian Federation. In 2003 a district court ruled him guilty of violation of the rules for stay of foreign citizens in Russia and obliged him to leave the country. The claimant could not return to Afghanistan due to risk of torture and ill-treatment and made a request to grant him temporary asylum status in the Russian Federation. In spite of the refusal of immigration authorities to do this, in 2006 he received asylum status based on a court ruling. However, in 2009 Federal Migration Service (FMS) refused to extend the period of his asylum status. Appealing this decision in courts of higher instances had no effect in spite of the fact that the claimant had his family in Russia or that he would face torture and ill-treatment in the country of origin. The claimant continued to live in Saint Petersburg with his family already in “illegal” status and could be deported from the Russian Federation any moment. He could not apply for a temporary residence permit because in order to do that he was obliged to leave the country, risking not to re-enter Russia again. The claimant had to address the UN Human Rights Committee, which undertook measures in order to prevent his deportation.

Importance of the ruling of the UN Human Rights Committee in the case of Kesmatulla Khakdar is due to two principal reasons. Firstly, the UN Human Rights Committee confirmed that the claimant was a victim of violation of the Covenant, although he had not been yet officially deported from the country and that he was a “potential victim”, because while being an illegal immigrant he was under constant threat of deportation. Russian FMS didn’t make any ruling on his deportation partly due to the fact that the UN Human Rights Committee had prohibited deportation of the claimant, while at the same time in the Russian legislation the procedure for effective suspension of the deportation procedure once it had been launched was absent. Secondly, according to the Russian State party, the claimant has not exhausted all available domestic remedies for his legal defense: he could request temporary asylum status based on his marriage to a Russian citizen, and in order to do that he should have left Russia and re-enter again. In response to that the Committee gave a detailed and useful clarification: “The Committee observes that, in the context of Article 7 of the Covenant, the principle of exhaustion of domestic remedies requires the author to use remedies that are directly related to assessing the risk of torture in the country to which he would be sent, not those that might allow him to remain where he is”.

UN Human Rights Committee admitted that the possible decision or execution of decision on deportation of the claimant would violate Article 7 of the Covenant. It obliged Russian Federation to provide the claimant with effective means for legal defense, which make it possible to completely reconsider his claims regarding the risk of torture, as well as to prevent similar risks against other persons. The Russian government is obliged to provide response to the UN Human Rights Committee within 180 days since this ruling.

Lawyer Sergey Golubok stated: “The Committee has absolutely correctly added to the definition of “effective means of legal defense”. This more detailed definition will not allow member states [of the Covenant] to use doubtful arguments, such as the proposal in our case to go to Afghanistan, where our claimant haven’t been for the last 20 years, and then re-enter Russia in order to further legalize himself there”.

Lawyer Olga Tseitlina noted that “the Committee made a decision of principal importance. In spite of dissenting opinions presented at the Committee’s session, the majority of the Committee’s members decided to considerably extend definition of the “victim of a violation”, thus establishing criteria of acceptability of claims by persons, in whose cases decisions on deportation were not to be adopted in spite of the fact that they lacked legal grounds for stay in a country. These persons don’t have to remain in custody in the detention centers now in order to be able to appeal to international bodies for legal assistance. Potential possibility of violation against them and their lack of a legal status are sufficient to launch protection mechanism provided by the Covenant. This position is aimed primarily at preventing human rights violations”.

 

UN Human Rights Committee’s communication (in English)