DISSENTING OPINION OF JUDGE ELÓSEGUI

1. With all due respect for the judgment approved by the majority of my colleagues in the Chamber, I voted against the conclusion that there would be no violation of Article 3 of the Convention by the Russian Government. In my humble opinion, I cannot support with my vote any remote possibility or risk of someone being “subjected to torture or to inhuman or degrading treatment or punishment”, caused by an expulsion or an extradition. I will attempt to explain the reasons for my position in the present case.

2. In sum, it is not possible for me, as a matter of conscience, to contribute to such a possible danger. Going into the concrete facts of the case related to the situation of the ethnic Uzbeks in Kyrgyzstan, it can be seen that, according to the majority of the reports by international organisations, this minority is still suffering from discrimination. The judgment refers to United Nations human-rights bodies, such as a 2018 report of the UN Committee on the Elimination of Racial Discrimination (CERD); to the European Union’s Annual Reports on Human Rights and Democratisation of 2014, 2016, 2017 and 2018; to the OSCE Human Dimension Implementation Meeting of 2016; and also to international non ‑ governmental human rights organisations, such as Amnesty International’s report of 2015, which documented 79 cases of torture and other ill-treatment in the first half of 2015; and Human Rights Watch’s World Report of 2016. After considering all this evidence, the majority in the Chamber conclude that in the last four or five years there has been a significant and stable improvement in the human rights situation in Kyrgyzstan in general. In my view, there is a clear contradiction and a lack of legal reasoning in paragraphs 84 and 85, in relation to all the above ‑ mentioned sources. By contrast, I would refer to my concurring opinion in the case of Kislov v. Russia (no. 3598/10, 9 July 2019), where I readily accepted, based on the facts, that the applicant’s extradition to Belarus would not be in breach of Article 3 of the Convention.

3. I cannot share the affirmative conclusion of the judgment when the Court emphasises that it does not find that ethnic Uzbeks nowadays constitute a vulnerable group facing a specific targeted risk of ill-treatment (paragraph 87). It is for that reason that, again somewhat unusually, but being fully aware of the implications, I also voted differently on point 4 of the operative part. In my view the application of Rule 39 of the Rules of the Court has to be maintained even after the time at which the present judgment becomes final, because the expulsion of the two applicants would be incompatible with the Convention in any event. The purpose of Rule 39 in such cases is to indicate measures in order to avoid risks for life (Article 2) and risks of ill-treatment and torture (Article 3).

4. The Chamber may therefore consider that the judgment could have benefited from applying a methodology by which to assess the probative value of those reports. Where the Court has been confronted with similar situations in the past, it has articulated certain principles (most recently in J.K. and Others v. Sweden [GC], no. 59166/12, 23 August 2016, §§ 88-89):

“In assessing the weight to be attached to country material, the Court has found in its case-law that consideration must be given to the sources of such material, in particular its independence, 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 ... Considerations must be given to the presence and reporting capacities of the author of the material in the country in question. 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, in such cases, information provided by sources with first ‑ hand knowledge of the situation may have to be relied on”.

5. In the case of UNHCR reports, the Court has observed that these reports may be highly relevant given the possibilities for the UN agencies to have direct access to the authorities of the country of destination as well as their ability to carry out on-site inspections and assessments in a manner which States and non-governmental organisations may not be able to do (see NA. v. the United Kingdom , no. 25904/07, § 121, 17 July 2008, and Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07, § 231, 28 June 2011). Also in this connection, the Court has confirmed that greater importance is attached to reports which directly address the alleged risk of ill-treatment and are couched in terms similar to those of Article 3 of the Convention (see NA. v. the United Kingdom , cited above, § 122).

6. In the present situation, I do not see any serious reasons to depart from the former case-law of the Court related to the extradition of ethnic Uzbeks to Kyrgyzstan (see among other authorities those cited in paragraph 85 of the judgment: Makkmudzhan Ergashev v. Russia , no. 49747/11, §§ 69-73, 16 October 2012; Garyratbek Saliyev v. Russia , no. 39093/13, §§ 61-62, 17 April 2014; and Turgunov v. Russia , no. 15590/14, § 32, 22 October 2015).

7. In relation to the former principles of the case-law, I agree with the general idea that the assessment of Article 3 risks 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 F.G. v. Sweden [GC], no. 43611/11, § 114, 23 March 2016).

I also share the idea that a general situation in itself would only be of sufficient intensity to create such a risk “in the most extreme cases” where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on his or her return (see in the context of raging civil wars, Sufi and Elmi , cited above, §§ 216 and 218; and, among other authorities, L.M. and Others v. Russia , nos. 40081/14 and 2 others, § 108, 15 October 2015).

8. In fact, in the Third Section, the Chamber has examined cases related to extraditions from Russia to Uzbekistan. As I recalled in my concurring opinion in Kislov (cited above):

“More concretely, in the decision of the 3rd Section case B.T. v. Russia , no. 40755/16 (dec.), of 11 January 2019, the Court examined the general principles and applied them to the above concrete case. The application also concerned an order by the Russian authorities for the extradition of the applicant to Uzbekistan. In the case of B.T. v. Russia the Court concluded as follows: ‘... beyond a broad reference to ill ‑ treatment in the light of the general practice in the criminal justice system of Uzbekistan, the applicant, both at domestic level and in his submissions before the Court, failed to refer to any individual circumstances and to substantiate his fears of ill-treatment in the event of his extradition to Uzbekistan. He did not refer to any personal experience of ill ‑ treatment at the hands of the Uzbek law ‑ enforcement authorities, neither did he allege that members of his family had been politically or religiously active or persecuted’ (see B.T. v. Russia , cited above, § 29). See by contrast, Garayev v. Azerbaijan , no. 53688/08, § 71, 10 June 2010; Mamazhonov v. Russia no. 17239/13, § 141, 23 October 2014; and Ismoilov and Others v. Russia , no. 2947/06, § 121, 24 April 2008).”

9. Moreover, it is a clear principle that applicants must convincingly demonstrate to the Court that the combination of the general situation and the personal circumstances justify a conclusion that there is a real risk of ill ‑ treatment. As has been pointed out, the mere possibility of ill-treatment on account of the situation in the receiving country does not in itself give rise to a breach of Article 3. That is why the Court went on to examine the applicant’s specific allegations and the Russian domestic authorities’ responses to the latter. However, in my view, it is not only for the applicant to prove the allegations and for the Government to refute them, it is also the Court’s responsibility if the fact of sending a person to a given country is deemed to entail a risk of ill ‑ treatment or torture.

10. In relation to the facts of the present case, the judgment reflects several contradictions which have not been clarified enough for me to characterise the two applicants as presumed criminals, due to presumed crimes committed in Kyrgyzstan. In paragraph 11 it is said that the first applicant was charged in absentia with misappropriation of approximately 18,500 euros. Although I have asked for more information about this fact, I have not received any convincing proof that would justify the necessity of extradition. Of course, it is for the domestic Russian courts to look into this information. However, I do not see in the domestic legal reasoning or in the facts before the domestic courts any available material that would enable me to vote in favour of the extradition. There is even a lack of coherence between the findings of the different domestic courts. The applicant T.K. applied for refugee status, referring to risks of persecution in Kyrgyzstan on ethnic grounds, whilst the migration authorities and courts rejected the application (see paragraphs 22-24).

11. Furthermore, the narrative of the facts is full of contradictions between what the Russian Government said in their observations and what the applicants alleged. Concretely, in relation to the content of T.K.’s allegations, the applicant responded to the Government’s observations by saying that there was a strategy to take away the property of Uzbeks in the relevant area on the basis of false accusations. The domestic courts did not weigh up the concrete circumstances or address this argument in their reasoning. In relation to the second applicant S.R., the Chamber judgment also contains many contradictions. It is said that the applicant was charged in absentia with violent crimes related to the June 2010 events, including the murder of law-enforcement officers (paragraph 26). But later the Regional Court of Belgorod found that “in his statements to the migration authorities he had expressly stated that he had not taken part in any inter ‑ ethnic clashes in 2010 and that he had not been persecuted on political grounds” (see paragraph 31). That is what the Russian court said, but it contradicts what the applicant said in his observations before the Court, according to which he had been persecuted on account of belonging to an ethnic group and the discrimination against this group. On the other hand, the reason why the Kyrgyzstan Government applied for his extradition was indeed because he had participated in the events of 2010.

12. For me the principle of non-contradiction is a logical first premise. Contradictory propositions cannot both be true in the same sense at the same time. That is why the Court has to be clear about the party to which it should attribute credibility, but it is not logical to describe everything without a final evaluation of the real facts. Consequently, if we are not able to know the facts we cannot derive a conclusion of no violation. Even though we are not a fourth-instance court, we need to base our decisions on reliable evidence, established beyond reasonable doubt.

13. For these reasons I cannot follow the judgment’s proposal that there is a new era in Kyrgyzstan and that the present case bears no relation to the 2010 events. In fact for the Kyrgyzstan Government, in the case of the second applicant, the accusation is indeed related to the events of 2010.

14. In a different connection, the Court usually asks the authorities of the Contracting Parties for guarantees in each concrete case that respect for the Convention rights will be ensured, indicating to them not to remove persons to countries where there are real risks of ill-treatment. In relation to diplomatic assurances and the criteria of our case-law in Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, 17 January 2012), I find that in the case of Kyrgyzstan the relevant guarantees are not satisfied at all at present, more specifically under points (e), (f) and (g) in paragraph 100 of the judgment, which contains the following summary of the Othman case ‑ law in this connection:

“Generally, the Court will assess first the quality of assurances given and, secondly, whether, in the light of the receiving State’s practices, they can be relied upon. In its analysis the Court has previously had regard to various factors, including among many others the following: (a) whether the assurances are specific or are general and vague; (b) who has given the assurances and whether that person can bind the receiving State; (c) if the assurances have been issued by the central Government of the receiving State, whether local authorities can be expected to abide by them; (d) the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances; (e) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers; (f) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible; and (g) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State (see Othman (Abu Qatada) , cited above, § 189, with further references).”

Among the available material we have been able to read, the report of the third party ICJ (International Commission of Jurists), which has a serious and professional reputation, comments on the lack of real monitoring and submits that the domestic courts “relied on diplomatic assurances made by the requesting State, without scrutinising their adequacy”, also bearing in mind that Kyrgyzstan is not a party to the Convention (see paragraphs 74-75 and also the dissenting opinion of Judge Keller, paragraph 2).

15. On the basis of all these facts, in my view, there would be a violation of Article 3 of the Convention in the event of the applicants’ extradition to Kyrgyzstan.