Makhmudzhan Ergashev v. Russia (no. 49747/11) [Article 3 ECHR]

Friday, October 4, 2013

The applicant, Makhmudzhan Ergashev, is a Kyrgyzstani national who 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 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. 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. 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.

The Court ruled unanimously that there has been a violation of Art. 3 ECHR:

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.

For the full text of the judgment please visit: ECtHR: Makhmudzhan Ergashev v. Russia (no. 49747/11)

For the press release on the judgment please visit: ECtHR Press Room: Extradition of ethnic Uzbek from Russia to southern Kyrgyzstan would expose him to the risk of ill-treatment.

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Inhuman or degrading treatment or punishment
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