Lexploria

Information Note on the Court’s case-law 204

February 2017

Allanazarova v. Russia - 46721/15

Judgment 14.2.2017 [Section III]

Article 13

Effective remedy

Remedies in extradition cases not affording automatic suspensive effect or thorough assessment of risk of ill-treatment: violation

Article 3

Extradition

Risk of ill-treatment in and lack of reliability of assurances received from State requesting extraditi on: extradition would constitute a violation

Facts – The applicant, a Turkmen national, left Turkmenistan in 2012 to go and live in Russia. She was arrested there and taken into custody in July 2014 on the basis of an arrest warrant issued against her by th e Turkmen authorities on fraud charges.

In August 2014 the Prosecutor-General of Turkmenistan issued an extradition request to the Russian authorities, giving assurances about procedural safeguards including to the effect that the applicant would not be su bjected to torture or to inhuman or degrading treatment.

The applicant sought refugee status but it was denied. The extradition request was granted by Russia in May 2015. The applicant appealed in vain, and ultimately sought temporary asylum on humanitaria n grounds.

In September 2015, after the applicant had lodged an application with the Court, it granted her request for an interim measure (Rule 39 of the Rules of Court ), indicating to t he Russian authorities that her extradition had to be suspended. She was granted temporary asylum in October 2015.

Law – Article 3: The applicant had alleged that to return her to her country of origin, Turkmenistan, would expose her to ill-treatment.

(a) Existence of a real risk of ill-treatment – The Court had previously found a violation of Article 3 on account of such a risk in a certain number of cases where the applicant was to be returned to Turkmenistan, in particular when facing criminal proceedi ngs there, as various sources had shown that the general human rights situation in that country was alarming. The situation had hardly changed since.

In the knowledge that, in the present case, the applicant’s detention on her return had already been order ed and the charge identified in the extradition request carried a sentence of up to fifteen years’ imprisonment, the risk of ill-treatment in the event of her extradition was genuine.

(b) Whether the assurances given were reliable – A number of criteria had to be taken into account to assess the reliability of the assurances given by the Prosecutor-General of Turkmenistan:

– the existence of supervisory systems enabling objective verification of the assurances in practice;

– the capacity of the Turkmen prosecution service to commit Turkmenistan;

– whether previous assurances of the same kind had been respected.

The respondent Government had failed to adduce any evidence in that connection. The willingness of the Turkmen authorities to cooperate with i nternational supervisory mechanisms or with human rights NGOs had proven extremely limited. That reticence to cooperate could also be seen at a bilateral level.

Thus the assurances given by the department of the Turkmen Prosecutor-General were not reliable ; consequently, they did not remove any real risk of ill-treatment for the applicant in the event of her return to Turkmenistan.

Conclusion : violation in the event of extradition to Turkmenistan (unanimously).

Article 13 taken together with Article 3: The applicant had complained that the risk of ill-treatment in the event of her extradition to Turkmenistan, as she had claimed in all the relevant proceedings in Russia, had not been duly examined by the Russian authorities.

According to the Court’s case-law, where a risk of that nature was alleged arguably, a remedy would only be effective for the purposes of Article 13 if it fulfilled the following two criteria: it must have an automatic suspensive effect and entail independent and rigorous scrutiny of the r isk.

(a) Extradition procedure

(i) “Automatic suspensive effect” – This criterion was fulfilled: according to the Russian Code of Criminal Procedure, any decision by the Prosecutor-General or his deputy concerning the extradition of an individual could b e appealed against with automatic suspensive effect; and that suspension had been applied in the present case.

(ii) “Independent and rigorous scrutiny” – This criterion had not been fulfilled. Even though, according to Instruction no. 11 (2012) of the Rus sian Supreme Court on extradition, the courts were required to ascertain whether the person being extradited faced a risk of torture or inhuman or degrading treatment in the requesting State, that examination had not been rigorous enough in the present cas e.

Firstly, while the applicant had produced material to substantiate the alleged risks, her complaint had been dismissed as being based on “mere suppositions”. Such an approach did not fulfil the condition of a rigorous examination: the fact of demanding that a person provide “indisputable” evidence of a risk of ill-treatment in the destination country was tantamount to asking for proof of a future event, which was impossible, and this had imposed a disproportionate burden.

Secondly, the courts had taken n ote of the assurances received without examining them in the light of the relevant criteria, because they had not sought to ascertain whether the supervisory systems were sufficient for an objective verification of the fulfilment, in practice, of the assur ances given by the Prosecutor-General of Turkmenistan, or of whether the latter had the capacity to commit Turkmenistan, or of compliance by that country with similar assurances in the past.

(b) Other procedures

According to the case-law of the Supreme C ourt, the granting of refugee status or temporary asylum precluded extradition. As the applicant had had access to the relevant procedures, it was necessary to examine whether they could have remedied the shortcomings of the extradition procedure.

(i) Pro cedure for obtaining refugee status – As followed in practice by the national authorities, this procedure had not satisfied any of the criteria of effectiveness mentioned above.

(α) In accordance with the law, this procedure was supposed to establish, in respect of the person concerned, whether or not there was a “justified fear” of persecution in the country of his or her habitual residence or nationality, “on account of race, religion, nationality, ethnic origin, association with a social group or politi cal opinions”. However, the Court had already noted that the Russian authorities interpreted these provisions strictly, ruling out refugee status where the risk of ill-treatment was related to reasons other than those enumerated; they had followed this pra ctice in the present case.

Consequently, this procedure had not entailed a rigorous examination of the alleged risk, because that risk was not related to reasons of the type mentioned above but to the prospect of detention.

(β) The judicial review procedu re available to failed asylum seekers did not have an automatically suspensive effect either. For a remedy to be regarded as “automatically” suspensive, such effect had to be attached to it clearly and unequivocally in domestic law: it was not sufficient f or there merely to be a possible administrative or other practice consisting in suspending the extradition pending the outcome of an appeal against the rejection of refugee status.

(ii) Temporary asylum procedure – If refugee status was denied, it was sti ll possible to apply for temporary asylum on “humanitarian grounds”. However, even supposing that this procedure enabled thorough scrutiny and a rigorous examination of the risk of treatment in breach of Article 3, it nevertheless appeared to be devoid of automatic suspensive effect.

In the present case, it could be seen from the decision of the Russian authorities on temporary asylum that this asylum had been granted to the applicant not because of the request to that effect but following the indication b y the Court of the interim measure under Rule 39.

***

In conclusion, even combined with procedures for the granting of refugee status and then temporary asylum, the judicial review of the extradition decision had not constituted an “effective remedy” in r espect of the alleged risk of ill-treatment in Turkmenistan.

Conclusion : violation (unanimously).

Article 41: finding of a violation sufficient in itself for non-pecuniary damage.

(See also S.K. v. Russia , 52722/15, 14 February 2017, Information Note 204 , summary below)

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