EHRM, 29-04-2022, nr. 28492/15, nr. 49975/15

The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 113, ECHR 2012; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). However, the removal of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would face a real risk of being subjected to treatment contrary to Article 3 in the destination country; in these circumstances, Article 3 implies an obligation not to remove the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008).

In the case of an extradition, a Contracting State finds itself under an obligation to cooperate in international criminal matters. However, that obligation is subject to the same State's obligation to respect the absolute nature of the prohibition under Article 3 of the Convention. Therefore, any claim of a real risk of treatment contrary to Article 3 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.

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 (see, for example, Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007, and Vilvarajah and Others v. the United Kingdom, 30 October 1991, §§ 107-08, Series A no. 215). It must be considered whether, having regard to all the circumstances of the case, 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 of the Convention. If the existence of such a risk is established, the applicant's removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two (see F.G. v. Sweden [GC], no. 43611/11, § 116, 23 March 2016).

The starting-point for the assessment should be the examination of the general situation in the destination country. In this connection, and where it is relevant to do so, regard must be had to whether there is a general situation of violence existing in the country of destination (see Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 216, 28 June 2011). However, a general situation of violence will 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 is sufficient to conclude that any removal to that country would necessarily breach Article 3 of the Convention. The Court would adopt such an approach only in the most extreme cases, where there is a real risk of ill-treatment simply by virtue of the individual concerned being exposed to such violence on returning to the country in question (see Sufi and Elmi, cited above, § 218, and NA. v. the United Kingdom, no. 25904/07, § 115, 17 July 2008).

In cases where an applicant alleges that he or she is a member of a group systematically exposed to ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the available sources, that there are serious reasons to believe in the existence of the practice in question and in his or her membership of the group concerned (see F.G. v. Sweden, cited above, § 120).

The assessment of such claims is 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 first step of this assessment should be the examination of whether the existence of a group systematically exposed to ill-treatment, falling under the ‘general situation’ part of the risk assessment, has 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 claim to be members. As a next step, they should establish their individual membership of the group concerned, without having to demonstrate any further individual circumstances or distinguishing features (see J.K. and Others v. Sweden [GC], no. 59166/12, §§ 103-05, 23 August 2016).

In cases where despite a possible well-founded fear of persecution in relation to certain risk-enhancing circumstances, it cannot be established that a group is systematically exposed to ill-treatment, the applicants are under an obligation 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 of the Convention (see, for example, A.S.N. and Others v. the Netherlands, nos. 68377/17 and 530/18, 25 February 2020, in respect of Sikhs in Afghanistan; A.S. v. France, no. 46240/15, 19 April 2018, in respect of persons linked to terrorism in Algeria; and A. v. Switzerland, no. 60342/16, 19 December 2017, in respect of Christians in Iran).

In cases where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3, the Court has then examined whether the assurances obtained in the particular case were sufficient to remove any real risk of ill-treatment (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 192, ECHR 2012). However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (ibid., § 187).

The Court's concern in the present case is to avoid the applicants being exposed to ill-treatment prohibited by Article 3 in the event of their extradition to Kyrgyzstan. By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 286-87, ECHR 2011).

The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials, as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see, among other authorities, NA. v. the United Kingdom, cited above, § 119).

Moreover, where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, ECHR 2011; Nizomkhon Dzhurayev v. Russia, no. 31890/11, § 113, 3 October 2013; and Savriddin Dzhurayev, cited above, § 155). This should not lead, however, to an abdication of the Court's responsibility and a renunciation of all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance. In accordance with Article 19 of the Convention, the Court's duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention (see Nizomkhon Dzhurayev, cited above, § 113).

As a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses, since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned. Their assessment, however, is also subject to the Court's scrutiny (see, for example, R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010).

If the applicant has not already been deported, the material point in time for the assessment must be that of the Court's consideration of the case (see Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V). A full and ex nunc evaluation is required where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken (see, for example, Maslov v. Austria [GC], no. 1638/03, §§ 87-95, ECHR 2008, and Sufi and Elmi, cited above, § 215). Since the nature of the Contracting States' responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must 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 (see Saadi, cited above, § 133). This proviso demonstrates that the primary purpose of the ex nunc principle is to serve as a safeguard in cases where a significant amount of time has passed between the adoption of the domestic decision and the consideration of the 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.

The Court would emphasise that 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, is in its very essence a factual ex nunc assessment made by the Court on the basis of the material at hand.

In some Chamber judgments the Court had to examine whether or not the general situation in the destination country regarding the risk of ill-treatment has improved since it delivered previous judgments in which it found the risk established (see, for example, A.M. v. France, no. 12148/18, §§ 120-26, 29 April 2019; X v. Sweden, no. 36417/16, §§ 26-31, 52, 9 January 2018; and Dzhaksybergenov v. Ukraine, no. 12343/10, § 37 10 February 2011). In so doing, the Court has not regarded an ‘improvement’ as an extra element or criterion to be met in the assessment of the general situation but has used that notion only to describe developments in the countries concerned (Algeria, Morocco and Kazakhstan respectively in the cases cited). The Court has proceeded in the same way in cases where it found the improvement of the general situation in a particular country to be insufficient (see, for example, Chahal, cited above, §§ 101-03, and Salah Sheekh, cited above, § 139). Accordingly, any examination of whether there has been an improvement or a deterioration in the general situation in a particular country amounts to a factual assessment and it is amenable to revision by the Court in the light of changing circumstances. There is 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.

The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal, cited above, § 96, and Saadi, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see, for example, Saadi, cited above, § 129, and N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence has been adduced, it is for the Government to dispel any doubts raised by it (see F.G. v. Sweden, cited above, § 120).

In relation to claims based on an individual real risk, it is incumbent on persons who allege that their removal would amount to a breach of Article 3 to adduce, to the greatest extent practically possible, material and information allowing the authorities of the Contracting State concerned, as well as the Court, to assess the risk a removal may entail (see Said v. the Netherlands, no. 2345/02, § 49, ECHR 2005-VI). While a number of individual factors may not, when considered separately, constitute a real risk, the same factors may give rise to a real risk when taken cumulatively and when considered in a situation of general violence and heightened security (see NA. v. the United Kingdom, cited above, § 130).

Similarly, when an applicant argues that the general situation in the country is such as to preclude all removals, it is in principle for him or her to adduce the requisite evidence. However, for claims based on a well-known general risk, when information regarding such a risk is freely ascertainable from a wide range of sources, the obligations incumbent on States under Articles 2 and 3 of the Convention mean that the authorities should carry out an assessment of that risk of their own motion (see F.G. v. Sweden, cited above, §§ 126-27 with further references).

The same principles apply to claims based on belonging to a vulnerable group, which require proof of systematic ill-treatment, as an element of the general situation in a country, and of the applicant's membership of that group (see paragraph 99 above).

With regard to the assessment of evidence, it is well established in the Court's case-law that ‘the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion’ (ibid., § 115). The Contracting State has the obligation to take into account not only the evidence submitted by the applicant but also all other facts which are relevant in the case under examination.

In assessing the weight to be attached to country material, the Court has found that consideration must be given to the source of such material, in particular its reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (see Saadi, cited above, § 143).

The Court also recognises that consideration must be given to the presence and reporting capacities of the author of the material in the country in question (see Sufi and Elmi, cited above, § 231). The Court appreciates the many difficulties faced by governments and NGOs gathering information in dangerous and volatile situations. It accepts that it will not always be possible for investigations to be carried out in the immediate vicinity of a conflict and that, in such cases, information provided by sources with first-hand knowledge of the situation may have to be relied on (ibid., § 232).

In assessing the risk alleged, the Court may obtain relevant materials proprio motu. This principle has been firmly established in the Court's case-law (see H.L.R. v. France, 29 April 1997, § 37, Reports 1997-III; Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II; and Hirsi Jamaa and Others, cited above, § 116), and it would be too narrow an approach under Article 3 in cases concerning aliens facing expulsion or extradition if the Court, as an international human rights court, were only to take into account materials made available by the domestic authorities of the Contracting State concerned, without comparing them with materials from other reliable and objective sources (see Salah Sheekh, cited above, § 136).

The Court notes that almost six years have passed since the adoption of the final domestic judgments in the applicants' cases. Therefore, in accordance with the ex nunc principle, the Grand Chamber must assess the existence of a real risk at the time of its consideration of the case.

The Court reiterates at the outset that despite expressing concern about repeated incidents of ill-treatment in Kyrgyzstan, it has never found a sufficient basis to conclude that the general situation was such as to preclude all removals to that country (see, for example, Makhmudzhan Ergashev; Gayratbek Saliyev; and Tadzhibayev, all cited above).

The available reports of the UN human rights bodies and of international, regional and national NGOs describing the present-day situation in Kyrgyzstan continue to indicate that incidents of torture and ill-treatment, a lack of effective investigations, and recurrent impunity are still major concerns for Kyrgyzstan (see, for example, paragraphs 56 and 59–63 above).

In this connection, the Court observes that the Kyrgyz authorities (see paragraph 57 above), in their third periodic report submitted to the Human Rights Committee on 25 February 2020, while indicating that torture was prohibited at constitutional and legislative level and supplying statistical data showing a slight decrease in reported incidents of torture, acknowledged that between 2014 and 2018 criminal proceedings had been instituted upon only 3% of complaints addressed to the national preventive mechanism, and that between 2012 and 2018 the courts had found only eighteen officials guilty of torture in criminal cases. The European Union, in its 2019 Annual Report on Human Rights and Democracy, noted, on the one hand, the Kyrgyz government's commitment to its human rights agenda, the implementation of a reform of the judiciary and the adoption of five new codes with a view to reducing arbitrary decisions, and, on the other hand, continued impunity for the use of torture, widespread corruption, the lack of independence and professionalism of the judicial system and the general weakness of the rule of law.

The Court also takes note of the fact that Amnesty International, in its 2019 report (see paragraph 59 above), highlighted the fact that the newly adopted Criminal Code and Code of Criminal Procedure reinforced guarantees against torture and other ill-treatment by expressly outlawing torture and excluding as inadmissible any evidence obtained through it, by ensuring that detainees had the right to a lawyer from the actual moment of their arrest and by requiring that medical evidence be collected once a complaint about torture had been made. At the same time, it reported that NGOs continued to receive reports of torture and other ill-treatment and ethnic profiling by the police. The 2020 report by Human Rights Watch (see paragraph 60 above) also emphasised, with reference to government statistics, that impunity for torture persisted in Kyrgyzstan, but that the amendments to the Criminal Code helped to strengthen the legal protection against torture and increase punishments for perpetrators. Freedom House, in its 2020 report, indicated that there were credible reports of torture during arrest and interrogation, in addition to physical abuse in prisons, and that most such reports did not lead to investigations and convictions (see paragraph 61 above).

The Coalition Against Torture in Kyrgyzstan mentioned in its submissions of July 2019 to the UPR Working Group that 30% of the persons detained in remand facilities alleged that they had been subjected to unjustified physical force or torture by law-enforcement bodies and that in the absolute majority of cases (94%), torture was used by operative officers of the internal affairs bodies in order to extract confessions. While the number of torture allegations registered by both the authorities and NGOs had decreased by about 10% in the period from 2016 to 2018, it remained unclear whether this was the result of the effective steps taken in the fight against torture or an indication of the lack of trust in existing complaint mechanisms of legal protection and fear of subsequent reprisals (see paragraph 62 above).

The international reports on the functioning of the national preventive mechanism are mixed. For example, while the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, following its 2018 visit, commended the mechanism for its will and its dedication to the goal of preventing torture, it noted that the Kyrgyz Parliament lacked interest in considering the mechanism's reports and that the recommendations were generally taken lightly by high-ranking governmental authorities, but nonetheless bore some weight at the operational level (see paragraph 40 of the Chamber judgment). In July 2019 the Coalition Against Torture in Kyrgyzstan mentioned in its submission to the UPR Working Group that the Kyrgyz Parliament was sabotaging the activities of the national preventive mechanism and that the latter had no capability to operate properly because of insufficient funding (see paragraph 63 above).

Irrespective of the above-mentioned legal and institutional changes, the Court notes that international sources continue to voice concerns about insufficient action by the Kyrgyz authorities to prevent torture and other ill-treatment in practice, and about the prevalence of impunity. However, the available international material does not support a finding that the general situation in the country has either deteriorated as compared to the previous assessments, which did not lead the Court to reach findings precluding all removals to Kyrgyzstan (see paragraph 118 above), or has reached a level calling for a total ban on extraditions to that country (compare Sufi and Elmi, cited above, § 216, and Dzhaksybergenov, cited above, § 37).

The applicants consistently argued in their submissions before the domestic authorities and the Court that their Uzbek ethnicity placed them in a vulnerable group facing a risk of ill-treatment in the event of their extradition to Kyrgyzstan. Such claims combine elements relating to the general situation in the country concerned and to individual circumstances. Accordingly, they require reliable and objective proof, in terms of the general situation, that the group in question is systematically exposed to ill-treatment and, in terms of the individual circumstances, that the applicants belong to that group (see paragraphs 99, 111 and 112 above).

The applicants' ethnicity is not a point of disagreement between the parties to the present case. It is not disputed that the applicants are Kyrgyz nationals of ethnic Uzbek origin. Accordingly, the Court will now examine whether ethnic Uzbeks are a group which is systematically exposed to ill-treatment in Kyrgyzstan.

As has been indicated above, the Court has 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 (see, for example, Makhmudzhan Ergashev, and R. v. Russia, both cited above). Whether ethnic Uzbeks continue to run a heightened risk of ill-treatment as compared to other persons in Kyrgyzstan is the major point of disagreement between the parties.

Accordingly, the Court will focus its scrutiny on the specific allegation that ethnic Uzbeks run a heightened risk of ill-treatment. In doing so, it will take into account in its assessment 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 (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 337, ECHR 2005-III).

In this connection, it should be noted that the Court's previous findings that ethnic Uzbeks in Kyrgyzstan constituted a vulnerable group for the purposes of Article 3 of the Convention were based on specific reports describing a targeted and systematic practice of ill-treatment against that group at the relevant time (see the references in paragraph 118 above, and most recently R. v. Russia, cited above, § 62).

As regards the current situation, the Court notes 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 marginalisation (see paragraphs 55 and 59–60 above). While in the aftermath of the ethnic clashes of June 2010 there was specific evidence indicating that ethnic Uzbeks were at a heightened risk of ill-treatment, the above-mentioned recent reports (see paragraphs 55–64 above) no longer contain such indications. Consequently, the Court has no basis for reaching a conclusion that ethnic Uzbeks constitute a group which is still systematically exposed to ill-treatment. It will therefore now turn to the applicants' individual circumstances.

The first applicant was charged in Kyrgyzstan with aggravated misappropriation, whereas the second applicant was charged with several counts of aggravated violent crimes (see paragraphs 15 and 33–34 above). As regards the nature of those charges, the applicants highlighted in their submissions the alleged ethnic component of the charges against both of them. They contested the Chamber's characterisation of the charges as being of a ‘common criminal nature’ and ‘not prima facie related to the applicants’ Uzbek ethnic origin or political persecution on that ground' (see paragraph 93 of the Chamber judgment).

As regards the misappropriation charges brought against the first applicant, the Grand Chamber observes that no solid evidence has been presented in support of the alleged ethnic bias underlying them. The first applicant, for his part, argued that the criminal proceedings had not been initiated against him until 2010 and were in fact a strategy used against ethnic Uzbeks in order to force them to pay bribes and to extort their property. However, those assertions are not supported by any specific and concrete facts, apart from the reference to the time of the opening of the criminal investigation and the inference the Court is being invited to draw therefrom. Although the first applicant contended that the charges against him were neither detailed nor supported by evidence and that this proved that his prosecution was ethnically motivated, the Court observes that the charges against him were sufficiently detailed, mentioning both the victims and the sums allegedly misappropriated by him (see paragraph 15 above). Given that none of his own assertions are supported by any evidence and do not reach beyond the level of speculation, no existence of a real individual risk of ill-treatment can be reliably demonstrated in his case.

In respect of the second applicant, the Court notes that the charges against him concern aggravated violent crimes motivated by ethnic hatred in the course of the June 2010 events. However, the mere fact that the applicant has been prosecuted for allegedly ethnically profiling his victims and exerting violence against persons of Kyrgyz ethnicity in the context of inter-ethnic clashes does not automatically mean that he is himself a victim of ethnic persecution or bias. His assertion that the criminal case against him was fabricated or that the accusation of ethnic hatred towards the Kyrgyz part of the population exposed him to prejudice capable of turning into ill-treatment requires separate and proper substantiation. Given that the second applicant has failed to substantiate his allegations beyond ascertaining that he had been charged with hate crimes against ethnic Kyrgyz or to reasonably account for his repeated travel to and from Kyrgyzstan after June 2010 and his obtaining a new passport there several months after arriving in Russia (see paragraph 43 above), no existence of a real individual risk of ill-treatment can be reliably demonstrated in his case.

The Court reiterates that as far as individual circumstances are concerned, the burden of proof lies on the applicant to adduce, to the greatest extent practically possible, material and information allowing the authorities of the Contracting State concerned, as well as the Court, to assess the risk his or her removal may entail (see paragraph 110 above). The Court observes that the Russian courts had had engaged with their Convention obligations by carefully and appropriately examining the existence of the individual risks capable of preventing the applicants' extradition. Both of the applicants in the present case have 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.

Although an issue may arise under Article 3 in extradition and expulsion cases where substantial grounds have been shown for believing that the person in question would face a real risk of being subjected to treatment contrary to Article 3 in the destination country, in the absence of any demonstration of such substantial grounds this threshold has not been met by the applicants in the present case.

The Grand Chamber takes note of the respondent State's undertaking that, following their extradition, the applicants will benefit from the assurances provided by the Kyrgyz authorities, including monitoring visits by the Russian diplomatic services in Kyrgyzstan (see paragraphs 44 and 88 above). However, in the light of the above findings (see paragraph 137 above), the Court does not deem it warranted to rule on these assurances in the applicants' cases (see paragraph 101 above).

Accordingly, there would be no violation of Article 3 of the Convention in the event of the applicants' extradition from Russia to Kyrgyzstan.