issued by the Registrar of the Court

ECHR 377 (2012)

16.10.2012

Extradition of ethnic Uzbek from Russia to southern Kyrgyzstan

would expose him to the risk of ill-treatment

In today’s Chamber judgment in the case of Makhmudzhan Ergashev v. Russia

(application no. 49747/11), which is not final¹, the European Court of Human Rights

held, unanimously, that if Mr Ergashev was extradited to Kyrgyzstan there would be:

a violation of Article 3 (prohibition of torture and of inhuman or degrading

treatment or punishment) of the European Convention on Human Rights.

The case concerned the Russian authorities’ decision to extradite a Kyrgyzstani national,

who is an ethnic Uzbek, to Kyrgyzstan.

The Court held that, at present, there was a real risk Mr Ergashev would be ill-treated if

extradited, in particular in view of the widespread use of torture against members of the

Uzbek minority in the southern part of Kyrgyzstan. Given the current situation, it was

doubtful that the local authorities could be expected to abide by the central

government’s assurances that he would not be ill-treated.

It was the first time the Court examined on the merits the risk of treatment proscribed

by Article 3 in Kyrgyzstan, where clashes between ethnic Kyrgyz and ethnic Uzbeks had

erupted in 2010.

Principal facts

The applicant, Makhmudzhan Ergashev, is a Kyrgyzstani national who was born in 1972

and has been living in St Petersburg (Russia) since July 2006. He is an ethnic Uzbek and

lived in the southern part of Kyrgyzstan before he left for Russia.

In 2007, criminal proceedings were brought against Mr Ergashev in Kyrgyzstan on

suspicion of embezzlement of State funds, allegedly committed in 2006-07. He was

charged in absentia, declared a wanted person and an order for him to be remanded in

custody was issued. In August 2010, he was arrested in Russia and detained with a view

to his extradition. His detention was extended a number of times until the maximum

time-limit for detention had been reached and he was released in August 2011.

A request from the Kyrgyzstani authorities for Mr Ergashev’s extradition to Kyrgyzstan

was approved by the Russian deputy Prosecutor General in March 2011. The decision

was preceded by assurances from the Kyrgyzstani authorities to the effect that the

extradition request was not related to clashes between ethnic Kyrgyz and ethnic Uzbeks

in southern Kyrgyzstan in June 2010 and to the effect that Mr Ergashev would not be

subjected to torture or other ill-treatment there. In his appeal against the decision, Mr

Ergashev submitted that, in view of the ethnic unrest in Kyrgyzstan, as an ethnic Uzbek

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

he would face a serious risk of torture if extradited. He referred to the findings of a

number of international bodies and organisations, in particular Human Rights Watch and

the Independent International Commission of Inquiry into the events in southern

Kyrgyzstan (KIC). The extradition decision was eventually upheld by the Russian

Supreme Court on 7 November 2011. Mr Ergashev’s request for refugee status in Russia

was rejected by the Russian migration service.

Complaints, procedure and composition of the Court

Mr Ergashev complained in particular that his extradition to Kyrgyzstan would be in

violation of Article 3, as, belonging to the Uzbek ethnic minority, he would be subjected

to torture or inhuman or degrading treatment in Kyrgyzstan. He further relied on Article

13 (right to an effective remedy) in conjunction with Article 3.

The application was lodged with the European Court of Human Rights on 10 August

2011. On 11 August 2011, the Court decided to apply Rules 39 (interim measures) and

41 (order of dealing with cases) of its Rules of Court, indicating to the Russian

Government that he should not be extradited to Kyrgyzstan until further notice and

granting priority treatment to the case.

Judgment was given by a Chamber of seven judges, composed as follows:

Nina Vajić (Croatia), President,

Anatoly Kovler (Russia),

Peer Lorenzen (Denmark),

Elisabeth Steiner (Austria),

Khanlar Hajiyev (Azerbaijan),

Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”),

Julia Laffranque (Estonia),

and also Søren Nielsen, Section Registrar.

Decision of the Court

Article 3

The Court observed that if the decision to extradite Mr Ergashev was to be enforced, he

would be taken to Jalal-Abad in the south of Kyrgyzstan, where he was wanted on

charges of embezzlement. In his appeal against that decision, Mr Ergashev had argued,

with reference to a number of international sources, that he would face a serious risk of

torture in that region, which had been the scene of violent inter-ethnic clashes in 2010.

The Court noted that the Russian courts had not had any regard to those sources.

Neither had they – or the migration service when assessing Mr Ergashev’s request for

refugee status – addressed in detail the risk of his ill-treatment by law-enforcement

authorities in Kyrgyzstan.

There had been a number of significant developments in Kyrgyzstan since the events of

2010, in particular the adoption of the new Constitution, the parliamentary and

presidential elections and a number of legal reforms to bring the legislation in line with

international human rights norms. However, the evidence before the Court showed that,

in the south of the country, torture and ill-treatment of ethnic Uzbeks by law-

enforcement officers had increased in the aftermath of those events and had remained

widespread. This problem, aggravated by the impunity of law-enforcement officers, had

to be seen against the background of growing inter-ethnic tensions between Kyrgyz and

Uzbeks, discrimination faced by Uzbeks and their under-representation in law-

enforcement bodies and the judiciary. While the central government had acknowledged

the problem, measures taken by the authorities had so far been insufficient to change

the situation, as evidenced in particular by the reports of KIC, Amnesty International,

Human Rights Watch and UN bodies. There appeared to be little commitment at local

level to prevent serious human rights violations.

It was true that the criminal proceedings against Mr Ergashev concerned an ordinary

offence which had no political or ethnic character and was unrelated to the violent

clashes in 2010. However, the Court underlined that the international reports had

observed that torture and ill-treatment of ethnic Uzbeks was not limited to the

prosecution of offences related to those events. The reports had further noted that

people returning to Kyrgyzstan from working in Russia were particularly vulnerable to

intimidation by law-enforcement officers.

In deciding on Mr Ergashev’s extradition, the Russian authorities had relied without

scrutiny on assurances from the Kyrgyz Prosecutor General. While those assurances

were formally binding, the Court had serious doubts, in view of the poor human rights

record of the south of the country, whether the local authorities there could be expected

to abide by them in practice. Moreover, the Russian Government’s reference to the

possibility of their monitoring the observance of the assurances was not supported by

any specific evidence.

For those reasons, the Court found it substantiated that Mr Ergashev would face a real

risk of ill-treatment if returned to Kyrgyzstan. The execution of his extradition order

would thus be in violation of Article 3.

The Court further held that there was no need to examine the complaint separately

under Article 13 in conjunction with Article 3.

Article 41 (just satisfaction)

The Court considered that its finding that Mr Ergashev’s extradition would be in violation

of Article 3 constituted sufficient just satisfaction. It further held that Russia was to pay

Mr Ergashev 7,500 euros (EUR) in respect of costs and expenses.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of

Europe Member States in 1959 to deal with alleged violations of the 1950 European

Convention on Human Rights.