ECtHR prioritizes ban on death penalty and protection against torture

In October and December 2015, the European Court of Human Rights (ECtHR) issued two principal decisions on legal appeals vs. Russia concerning unacceptability of extradition from Russia to Kyrgyzstan of the citizens of the latter country.

These legal cases were presented jointly by the Anti-Discrimination Center “Memorial”, “Migration and Law” network of the Human Rights Center “Memorial” and the Institute of Human Rights. ECtHR issued its rulings in legal cases on behalf of Botir Turgunov and Mirodil Tadzhibayev on October 22 and December 1, 2015 respectively.

Both men were charged in Kyrgyzstan with being involved in the violent events in Osh region back in June 2010, when a large-scale conflict between ethnic Uzbeks and Kyrgyzs broke out in the south of Kyrgyzstan. Kyrgyzstan authorities demanded that Russia extradited Turgunov and Tadzhibaev, who previously had fled from Kyrgyzstan, and the Russian Supreme Court decided in favor of this request.

Lawyers Olga Tseitlina and Yury Serov defended Turgunov and Tadzhibayev in Russian courts and later together with lawyer Sergei Golubkov made legal appeals on their behalf to the ECtHR. In their legal appeals they pointed out that it was unacceptable to extradite to Kyrgyzstan ethnic Uzbeks accused of involvement in the Osh events, because they were particularly vulnerable, belonging to a persecuted minority group in this country. Lawyers argued that, if extradited, the applicants were at risk of becoming victims of torture or inhuman treatment, which were prohibited by Article 3 of the European Convention on Human Rights.

ECtHR has confirmed its position on the situation of human rights and persecution of ethnic Uzbeks in Kyrgyzstan, which had been formulated earlier in its resolutions adopted in 2012. The court established that in 2015 in Kyrgyzstan it was difficult to expect a fair investigation and trial, and that ethnic Uzbeks were systematically tortured there. Based on this, ECtHR is of the opinion that ethnic Uzbeks should not be extradited to Kyrgyzstan on these charges.

ECtHR also noted that while the Russian courts had rejected the applicants’ asylum requests, the latter had not been examined properly as the courts had not taken into account important information contained in the reports of international and human rights organizations.

While demanding extradition of Turgunov and Tadzhibayev from Russia, Kyrgyzstan has given diplomatic assurances that they would not be subjected to torture or ill-treatment. ECtHR pointed out that proper diplomatic cooperation between the two countries had not been established and that the mechanisms for monitoring the situation in prisons in Kyrgyzstan had been lacking. ECtHR has not received evidence that the Russian diplomatic authorities would have access to the detainees in order to be allowed to talk to the latter without witnesses.

ECtHR’s resolutions on appeals made on behalf of Turgunov and Tadzhibayev confirmed that the court prioritized individual human rights and necessity of avoiding risk of ill treatment, prohibited types of treatment, while at the same time stressing the necessity of fulfilling obligations of the states in terms of extradition and other forms of international cooperation.

In this respect, another important ruling was issued by ECtHR on October 29, 2015 in the case of A.L. (№ 44095/14). This legal case was also presented by ADC “Memorial” and “Migration and Law” network of HRC “Memorial” in both Russian courts and ECtHR. The applicant in this case was wanted by the police in China and was accused of committing a crime there, for which the punishment by the laws of the country could be death penalty.

The Russian authorities ruled not to extradite the applicant, but instead ruled that his stay in Russia was undesirable and ordered him to leave the country within three days, while at the same time A.L. had no legal grounds for entry into any third country, which was safe for him.

ECtHR noted that it was not acceptable to extradite applicants from Russia to other countries, if they risked to actually face death penalty there.

The court noted that death penalty was not practiced in Russia, even though this country has not formally ratified Protocol №6 to the European Convention on Human Rights, and because of that applicants from Russia could not be involuntarily moved to different states, even outside of Europe, if they could actually face death penalty or the risk of its possible use.

The judges in Strasbourg highlighted the fact that the applicant had spent several months in solitary confinement in a detention center for foreign nationals in Krasnoye Selo near St. Petersburg. Referring to the recommendations of the European Committee for the Prevention of Torture and the European Prison Rules, the ECtHR stressed that solitary confinement must be accompanied by a regular monitoring system of physical and psychological condition of a prisoner and that solitary confinement should be used only in case there were sound reasons for it. On top of that, professional evaluation of physical and psychological human resistance of a person to long-term isolation should be carried out. In the case of A.L. those regulations have not been respected.

ECtHR found conditions of detention of A.L. in the Krasnoselsky district police department of St. Petersburg to be inhuman and degrading (A.L. had not been allowed to eat, drink or use toilet for two days).

ECHR has established that Russia had violated Article 2 (prohibition of death penalty) and Article 3 (prohibition of torture) of the European Convention. The applicant was ruled to receive monetary compensation of 5,000 euros. He was also awarded partial compensation of legal costs.

“These decisions of the European Court of Human Rights reiterated that in cases on extradition violation of Article 2 and a risk of the death penalty in the country, which requested extradition, plays a crucial role”, lawyer Olga Tseitlina said. She also stressed that “the court confirmed that Article 3 is of absolute importance, that torture and treatment, which violates human dignity, are not to be tolerated under any circumstances”.

This is particularly relevant in the context of the current debate in Russia on the possibility of restoring death penalty and the revision of obligations of the Russian Federation in terms of international cooperation, in which the rights and the lives of people can become of secondary importance. ECtHR stated that the right to life, prohibition of torture and inhuman treatment were inalienable human rights and that the states had direct responsibility for strict compliance with them, despite the new threats and challenges”.