Committee against Torture

Communication No. 554/2013

Decision adopted by the Committee at its fifty-fifth session (27 July-14 August 2015)

Submitted by:	X. (represented by counsel, Yaroslav Ravdel)
Alleged victim:	The complainant
State party:	Kazakhstan
Date of complaint:	25 June 2013 (initial submission)
Date of present decision:	3 August 2015
Subject matter:	Extradition to the Russian Federation
Substantive issue:	Risk of torture and death upon return to the country of origin
Procedural issue s :	Exhaustion of domestic remedies, substantiation of the complaint
Article of the Convention :	3, 6, 7 and 22

Annex

Decision of the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (fifty fifth session)

concerning

Communication No. 554/2013 * , **

Submitted by:	X. (represented by counsel, Yaroslav Ravdel)
Alleged victim:	The complainant
State party:	Kazakhstan
Date of complaint:	25 June 2013 (initial submission)

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 3 August 2015,

Having concluded its consideration of complaint No. 554/2013, submitted to the Committee against Torture on behalf of X. under article 22 of the Convention,

Having taken into account all information made available to it by the complainant, his counsel and the State party,

Adopts the following:

Decision under article 22, paragraph 7, of the Convention against Torture

1.1The complainant is X., a citizen of the Russian Federation, born in 1981 in Grozny. He claims that his extradition to the Russian Federation would constitute a violation by Kazakhstan of articles 3 (1), 6 and 7 (3) of the Convention against Torture. The complainant is represented by counsel, Yaroslav Ravdel from the West Kazakhstan office of the civil organization “Kazakhstan International Bureau for Human Rights and Rule of Law”.

1.2On 28 June 2013, under rule 114 of its rules of procedure, the Committee requested the State party not to extradite the complainant to the Russian Federation while his communication was under consideration by the Committee. The request was reiterated on 9 July 2013, 24 March 2014 and 16 April 2014. Nevertheless, the complainant was extradited to the Russian Federation on 24 April 2014.

1.3On 16 April 2014, the Committee, acting through its Rapporteur on new complaints and interim measures, decided to examine the admissibility of the communication together with its merits.

The facts as presented by the complainant

2.1The complainant is a citizen of the Russian Federation. He resided in the city of Nazran. On 18 October 2012, he and his friend, A.Z., were abducted and detained by unknown people. While A.Z. was killed after one day in detention, the complainant was beaten by the kidnappers for 11 days. He was asked about names of individuals and shown photographs of people he did not know. On the basis of this and other things, he concluded that his kidnappers were representatives of law enforcement agencies. On the eighteenth day of his detention, he overheard a telephone conversation of one of his kidnappers, from which he understood that they planned to kill him. He managed to escape. After 28 days of wandering in the woods, he was able to return home with the help of a man he had met. Meanwhile, on 19 October 2012, the complainant’s brother reported his disappearance to the Ombudsman of Ingushetia. On 22 October 2012, the parents of the complainant and A.Z. requested the prosecutor’s office of Nazran district to find their sons, who had gone missing on 18 October 2012. On 1 November 2012, a criminal investigation was opened into the possible murder of the complainant and A.Z. On 3 November 2012, the complainant’s wife was recognized as a victim in the criminal proceedings connected to his disappearance. On an unspecified date, while the complainant was still missing, the authorities informed his mother of his death in a landmine explosion. The complainant’s mother refused to recognize the remains of the body shown to her as that of her son; the body was recognized by the parents of A.Z. as belonging to their son.

2.2On 14 March 2013, the complainant arrived in Kazakhstan, where his uncle resided, and registered with the immigration authorities in the city of Uralsk. On 7 March 2013, the complainant was registered by the Russian Federation as a wanted suspect in a criminal case concerning the activities of an organized armed group in the territory of Ingushetia. The relevant documentation was transmitted to the Kazakh authorities on 24 April 2013. An identical document dated 23 March 2013 was transmitted to the authorities of Kazakhstan on 14 May 2013. On 23 April 2013, the complainant was charged with criminal offences under the Russian Criminal Code, specifically under article 209, concerning banditry, and article 222, concerning the illegal acquisition, transfer, selling, storage, transportation and carrying of firearms. The relevant documentation was transmitted to the Kazakh authorities on 14 May 2013. On 23 April 2013, the complainant was registered on the international wanted list. On 25 April 2013, the Alania District Court in Northern Ossetia authorized the placement in custody of the complainant as a preventive measure.

2.3On 26 April 2013, the complainant was apprehended by officers of the West Kazakhstan Regional Department of the Interior. On 27 April 2013, his detention with the aim of extradition to the Russian Federation was authorized by the Prosecutor of Uralsk. This decision was maintained on 29 April 2013 by the City Court of Uralsk. The complainant appealed the decision on his detention to the West Kazakhstan Regional Court, arguing that the criminal charges against him had been fabricated, that he had been subjected to torture, the evidence of which were the marks on his body, and that he had intended to request asylum in Kazakhstan. On 8 May 2013, the Regional Court rejected his appeal, stating that the criminal charges against him had been confirmed by the documents provided by the Russian authorities. The duration of the complainant’s detention was extended by the City Court on 24 June 2013, 19 July 2013 and 21 January 2014. The complainant appealed the City Court decisions of 24 June and 19 July 2013 to the West Kazakhstan Regional Court, on the grounds that he had been abducted and tortured, allegedly by Russian law enforcement officials, and that he would be placed at risk of torture and possibly death if extradited. His appeals were rejected by the Regional Court on 14 June 2013 and 26 July 2013. A third appeal, filed on 26 June 2013, was pending before the Regional Court at the time of submission of the complaint.

2.4On 21 May 2013, the Prosecutor General’s Office of the Russian Federation formally requested the extradition of the complainant. By a resolution of 23 May 2013, the Deputy Prosecutor General of Kazakhstan granted the extradition request on the basis of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the Minsk Convention).

2.5On 20 June 2013, the complainant appealed the Deputy Prosecutor General’s decision to the Uralsk City Court, providing details of his previous torture and expressing his fear of torture or death in the event of his extradition. On 21 June 2013, the City Court rejected the appeal, having not found any grounds to overturn the extradition decision and stating, inter alia, that the complainant had not informed the police about his alleged torture, and had applied for asylum only after the extradition decision concerning him had been made. On 1 July 2013, the complainant appealed the decision of the City Court to the West Kazakhstan Regional Court. He provided details of his previous abduction and torture and stated that the marks of torture, including broken bones, were still visible on his body. He referred to article 532 (1) (5) of the Criminal Procedure Code of Kazakhstan, which prohibits the extradition of a person who faces a risk of being subjected to torture in the country where he is returned. He also reiterated that the criminal charges against him had been fabricated and referred in this regard to the different dates on two identical documents concerning his registration on a wanted list in the Russian Federation. He also claimed that the documents provided by the Russian authorities concerning his alleged criminal activities did not contain any concrete dates, names or details. He referred to the principle of non-refoulement in the Convention, claimed that the authorities had to take into account the existence of a pattern of gross, flagrant or mass violations of human rights in a country when making a decision on extradition, and provided the Court with articles confirming a practice of abductions and torture in Ingushetia. The complainant also referred to the request by the Committee not to extradite him while his case was pending before the Committee. His appeal was rejected on 9 July 2013.

2.6On 6 May 2013, 13 May 2013, 24 May 2013, 13 June 2013, and 24 June 2013, the complainant applied for asylum to the Immigration Police Service of the West Kazakhstan Regional Department of the Interior. His applications were rejected without being considered on the merits because they did not meet formal requirements, the copy of his passport was not readable and the complainant had not undertaken the necessary medical examination.

The complaint

3.When submitting the communication, the complainant claimed that his extradition to the Russian Federation would be in violation of articles 3 (1), 6 and 7 (3) of the Convention. He claimed that the situation in Ingushetia was unstable and that there was a practice of abductions, torture and fabrication of criminal charges. This practice, taken together with his previous abduction and torture, would put him at a risk of torture and death.

State party’s observations on admissibility

4.1On 28 August 2013, the State party challenged the admissibility of the complaint, noting that the complainant had not appealed against the rejection of his asylum request by the Immigration Police Service. It also stated that the complainant’s allegations about a risk of torture upon extradition had not been confirmed by the Prosecutor General’s Office of Kazakhstan and that the complainant had never raised claims of torture either at the time of apprehension or during his detention. He also had not complained about any health-related problems. Furthermore, the Russian Prosecutor General’s Office had provided diplomatic assurances that the complainant would be offered every opportunity to defend himself, including through legal assistance, and that he would not be subjected to torture or any cruel, inhuman and degrading treatment or punishment.

4.2The State party also informed the Committee that the extradition of the complainant to the Russian Federation had been postponed in accordance with the Committee’s request for interim protection measures.

Additional information by the complainant

5.On 3 March 2014, the complainant informed the Committee that he had filed an appeal against the rejection of his five requests for asylum by the Immigration Police Service. The appeal was lodged on 20 September 2013 with the Court No. 2 of Uralsk.

Additional information by the State party

6.1On 7 March 2014, the State party informed the Committee that, on 26 April 2014, the complainant’s detention would reach one year. Under national law, that is the maximum duration of extradition detention, after which a person must be either extradited or released. Taking into account the Committee’s request for interim protection measures and the subsequent suspension of extradition of the complainant, the State party asked the Committee for guidance on how to proceed.

6.2The State party notes that no reasons for refusing the extradition were found by the domestic authorities. It reiterates that the Russian Federation provided diplomatic assurances to the effect that the complainant would be prosecuted on the basis of criminal charges listed in the extradition request and that he would not be subjected to torture.

Complainant’s comments on the State party’s observations on admissibility

7.1On 12 April 2014, the complainant submitted his comments on the State party’s observations and additional submission, arguing that the domestic remedies requested by the State party were not effective as not a single case had existed in which the immigration authorities had granted asylum in an extradition case like his own.

7.2He adds that, on 1 November 2013, the Court No. 2 of Uralsk rejected his appeal against the rejection of his five asylum requests and, on 19 December 2013, the West Kazakhstan Regional Court maintained that decision. He also submitted another request for asylum on 23 December 2013, which was rejected on 13 March 2014 by the Immigration Police Service. The complainant appealed that decision to the Court No. 2 of Uralsk on an unspecified date.

7.3The complainant reiterates his claims that the criminal charges in the Russian Federation against him were fabricated. He refers to a letter from a lawyer hired by his family to represent him at all stages of investigation in the Russian Federation. According to the lawyer, his request for information addressed to the main investigator in the complainant’s case remained unanswered. This could mean that the complainant’s right to defence would be restricted upon his extradition and, in the absence of his lawyer, he would be coerced to confess guilt under duress.

7.4The complainant asked the Committee to reiterate its request for interim protection measures, taking into account that the asylum appeals proceedings have no suspensive effect.

Additional information by the State party

8.1On 25 April 2014, the State party informed the Committee that, owing to the expiration of the maximum one-year term of extradition detention, the General Prosecutor’s Office had decided to extradite the complainant to the Russian Federation. His further detention would have violated the Code of Criminal Procedure of Kazakhstan, while his release would have posed a threat to national security.

8.2The State party assured the Committee that there were no grounds to believe that the complainant would face a risk of torture or ill-treatment upon his extradition. It also pledged to monitor the complainant’s situation upon his return, in cooperation with the authorities of the Russian Federation, and to provide the Committee with updated information on a regular basis.

8.3The State party requested a meeting with the Committee members in order to share more detailed information on the case.

8.4On 24 June 2014, the State party reiterated the information contained in its note verbale of 25 April 2014.

Additional submissions by the parties

9.1On 18 August 2014, the State party submitted its observations on the merits of the complaint. It reiterated the information provided in its observations on admissibility and stated that the allegations of the complainant concerning a risk of torture upon extradition had not been corroborated by the Prosecutor General’s Office. The State party concluded that the complaint should be dismissed as insufficiently substantiated under article 5 (2) (b) of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

9.2Furthermore, the State party stated that the complainant’s extradition had been suspended for the maximum possible period, at the request of the Committee. However, in view of the expiration of the maximum extradition detention allowed under the law and the State party’s obligations under the Minsk Convention, the Prosecutor General’s Officer had decided to extradite the complainant.

9.3On 5 October 2014, the complainant’s counsel commented on the additional observations of the State party and informed the Committee that the complainant had been extradited on 24 April 2014, while an appeal in his asylum case was ongoing. That appeal, dated 11 April 2014, had been rejected by the Court No. 2 of Uralsk on 4 April 2014, then by the West Kazakhstan Regional Court, acting as the appeal court, on 24 June 2014, and finally by the West Kazakhstan Regional Court, acting as the court of cassation, on 4 September 2014.

9.4The complainant’s counsel claimed that the State party had failed to consider the complainant’s allegations of his previous abduction and torture, despite the evident marks on his body, and had ignored his claims concerning the fabrication of criminal charges. He also claimed that the State party had violated the non-refoulement principle and had not taken into account the practice of human rights violations in Ingushetia, when taking its decision to extradite the complainant. He further claimed that the State party had failed to provide arguments to its claims that the complainant would pose a security threat if released.

9.5The complainant’s counsel added that the State party had not provided any details of how it would monitor the complainant’s situation upon his extradition and expressed doubts about the possibility to conduct effective monitoring outside the State party’s jurisdiction.

9.6The complainant’s counsel claimed that, by extraditing the complainant, the State party had violated the Committee’s request for interim protection measures.

9.7On 19 February 2015, the State party contested the counsel’s claim about the violation of the Committee’s request for interim protection measures. It stated that the complainant’s detention had been extended by the domestic courts up to the maximum period possible in the light of the Committee’s request, and that the complainant had been extradited when his detention was no longer possible and in compliance with the State party’s international obligations, including under the Minsk Convention.

Issues and proceedings before the Committee

The State party’s failure to cooperate and to respect the Committee’s request for interim measures pursuant to rule 114 of its rules of procedures.

10.1The Committee notes that the adoption of interim measures pursuant to rule 114 of its rules of procedure, in accordance with article 22 of the Convention, is vital to the role entrusted to the Committee under that article. Failure to respect that provision, in particular through such irreparable action as extraditing an alleged victim, undermines the protection of the rights enshrined in the Convention.

10.2The Committee observes that any State party that has made a declaration under article 22 (1) of the Convention recognizes the competence of the Committee to receive and consider complaints from individuals who claim to be victims of violations of the provisions of the Convention. By making such a declaration, States parties implicitly undertake to cooperate with the Committee in good faith by providing it with the means to examine the complaints submitted to it and, after such examination, to communicate its comments to the State party and the complainant. By failing to respect the request for interim measures transmitted to the State party on 28 June 2013, and reiterated on three occasions, the State party seriously failed in its obligations under article 22 of the Convention because it prevented the Committee from fully examining a complaint relating to a violation of the Convention, rendering the action by the Committee futile and its findings without effect.

10.3The Committee takes note of the State party’s argument, in accordance with its submission of 7 March 2014 and its subsequent submissions, that the maximum period in which it could hold the complainant in extradition detention expired on 26 April 2014 and that, under domestic law, on this date the complainant should either have been released or extradited, and that, if released, he would have posed a threat to the national security. Therefore, a decision was taken to extradite the complainant to the Russian Federation in accordance with the existing mutual assistance treaty. The Committee recalls that the non-refoulement principle codified in article 3 of the Convention is absolute. The Committee refers to article 27 of the Vienna Convention on the Law of Treaties, according to which a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Consideration of admissibility

11.1Before considering any complaint submitted in a communication, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

11.2The Committee notes that the complainant does not provide any information concerning an alleged violation of articles 6 and 7 of the Convention. The Committee therefore finds that his claims under these two articles are not sufficiently substantiated for the purpose of admissibility.

11.3 As to the complainant’s remaining claims under article 3 of the Convention, the Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that, in the present case, the State party claims that the complainant has not appealed the refusal of the Immigration Police Service to consider his five asylum requests on the merits. It also notes the complainant’s allegations that such an appeal would not be effective as it would not suspend his extradition. It further notes that the complainant was extradited while the judicial proceedings on the appeal in his asylum case were ongoing. In the light of this, the Committee concludes that it is not precluded, for purposes of admissibility, by article 22 (5) (b) from examining the present case. As the Committee finds no further obstacles to admissibility, it declares the communication submitted under article 3 of the Convention admissible and proceeds with its examination on the merits.

Consideration of the merits

12.1The Committee has considered the communication in the light of all the information made available to it by the parties concerned, in accordance with article 22 (4) of the Convention.

12.2The issue before the Committee is whether the extradition of the complainant to the Russian Federation violates the State party’s obligations under article 3 (1) of the Convention not to expel or return an individual to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Committee’s decision on this issue is taken in the light of the information that the authorities of the State party had or should have had in their possession at the time of the extradition.

12.3In assessing whether the extradition of the complainant to the Russian Federationviolates the State party’s obligations under article 3 of the Convention, the Committee must take into account all relevant considerations, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The Committee reiterates that the existence of such violations in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

12.4The Committee recalls its general comment No. 1,that the risk of torture must be assessed on grounds that go beyond mere theory or suspicion;however, the risk does not have to meet the test of being highly probable, but it must be personal and present. In that regard, in previous decisions, the Committee has determined that the risk of torture must be foreseeable, real and personal.

12.5The Committee notes the complainant’s claim that the fabrication of criminal charges, abductions and use of torture and ill-treatment are widespread in Ingushetia. It also notes that the complainant provided to the State party’s authorities the details of his abduction and torture by, allegedly, law enforcement officials prior to his departure to Kazakhstan. The Committee takes note of the complainant’s argumentation that the authorities of the State party ignored his claims of previous abduction and torture, as well as his claims of the widespread and well-known practice and use of torture and ill-treatment in the Russian Federation. The Committee notes the State party’s assertion that there were no indications of a risk of torture upon the complainant’s review and takes due account of the State party’s statement about the assurances obtained from the Russian authorities that the complainant would not be subjected to torture, violence or inhuman or degrading treatment.

12.6With regard to the existence of a consistent pattern of gross, flagrant or mass human rights violations, the Committee recalls its concluding observations on the fifth periodic report of the Russian Federation, in which it expressed its concern about numerous, ongoing and consistent allegations of the use of torture and ill-treatment of detainees, including as a means to extract confessions,and about serious human rights abuses inflicted by or at the instigation or with the consent or acquiescence of public officials or other persons acting in official capacities in the northern Caucasus, including torture and ill-treatment, abductions, enforced disappearances and extrajudicial killings. Therefore, the Committee considers that, in the present case, the pattern of gross, flagrant or mass violations of human rights and the significant risk of torture or other cruel, inhuman or degrading treatment in the north Caucasus region of the Russian Federation has been sufficiently established.

12.7The Committee recalls that, under the terms of its general comment No. 1, it will give considerable weight to findings of fact that are made byorgans of the State party concerned, but that the Committee is not bound by such findings and has the power, provided by article 22 (4) of the Convention, of free assessment of the facts on the basis of the full set of circumstances in every case.In the present case, the Committee observes that the complainant claims to have been abducted and tortured in October 2012 and provides documents confirming the fact that a criminal investigation into his disappearance and possible murder was opened in November 2012 by the Prosecutor’s Office of Nazran District.In his appeal of 1 July 2013 to the West Kazakhstan Regional Court, the complainant explicitly mentioned numerous marks of torture on his body, including broken bones, butno examination was ordered to verify the veracity of these torture allegations. The Committee notes that the information provided by the complainant, viewed together with the practice of torture and ill-treatment of detained persons in the Russian Federation, as observed by the Committee in its concluding observations (see para. 12.6 above) sufficiently demonstratedthat a foreseeable, real and personal risk of torture had existed for the complainantupon extradition to the Russian Federation.In such circumstances, the courts of the State party were obliged to duly assess, under the provisions of article 532 (5) of the Criminal Procedure Code and article 3 of the Convention, the possible risk of torture run by the complainant in the event of his extradition. The Committee therefore concludes that the State party’s authorities failed in their duty to carry out a thorough and individualized risk assessmentbefore returning the complainant to the Russian Federation. Accordingly, the Committee concludes that the State party’s extradition of the complainant to the Russian Federationconstitutes a breach of article 3 of the Convention.

12.8Regarding the diplomatic assurances received by the State party from the Russian authorities as sufficient protection against this manifest risk, the Committee recalls that such assurances cannot be used as an instrument to avoid the application of the principle of non-refoulement. The Committee also notes that the State party has failed to provide any updates on the situation of the complainant after his extradition, as it pledged to do in its submissions.

13.The Committee against Torture, acting under article 22 (7) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, decides that the facts before it reveal a breach by the State party of articles 3 and 22 of the Convention.

14.In conformity with article 118 (5) of its rules of procedure, the Committee urges the State party to provide redress for the complainant, including his return to Kazakhstan, if necessary, orregular visits and effective monitoring if he is in detention, to ensure that he is not subjected to treatment contrary to article 3 of the Convention. The complainant is also entitled to an adequate compensation. The Committee wishes to be informed, within 90 days, of the steps taken by the State party to respond to the present Decision.

Appendix

Individual dissenting opinion of Committee member Alessio Bruni

1.It is my opinion that the words “the State party seriously failed in its obligations under article 22 of the Convention” appearing in paragraph 10.2 of the Committee’s decision should be replaced by the words “the State party raised serious doubts about its willingness to implement article 22 of the Convention in good faith”.

2.Consequently, the last sentence of paragraph 10.3 should be deleted because the State party’s failure concerned its compliance with the Committee’s request for interim measures pursuant to rule 114 of its rules of procedure and not the Convention.

3.In addition, paragraph 13 should be reformulated as follows:

The Committee against Torture, acting under article 22 (7) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, decides that the facts before it reveal a breach by the State party of article 3 of the Convention. In addition, the non-compliance by the State party with the Committee’s reiterated requests for interim measures pursuant to rule 114 of its rules of procedure caused a serious damage to the effectiveness of the Committee’s deliberations and raised a serious doubt about the willingness of the State party to implement article 22 of the Convention in good faith.

4.In the present case, in its information dated 26 April 2014, the State party explained that, under its national law, one year is the maximum duration of extradition detention, after which a person has to be extradited or released. Taking into account the Committee’s request for interim protection measures and subsequent suspension of extradition of the complainant, the State party asked the Committee for guidance on how to proceed. The Committee reiterated the interim measures without providing any guidance (see para. 6.1 of the Committee’s decision).

5.As a consequence, the State party gave priority to the respect of its national law and its obligations under the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the Minsk Convention) over one of the Committee’s rules of procedure (see para. 9.2 of the Committee’s decision).

6.In these circumstances, the Committee should not have decided that the facts before it reveal a breach by the State party of article 22 of the Convention, but should have blamed the State party for its lack of cooperation with the Committee in the present case, which undermined the Committee’s effectiveness of its mandate under article 22 of the Convention.