ECtHR - R. v. Russia (no. 11916/15), [Article 3, 5(1) & 5(4) ECHR], 26 January 2016

Tuesday, January 26, 2016
The case of R. v. Russia  relates to an ethnic Uzbek national of Kyrgyzstan who fled to Russia to avoid ethnically motivated violence. In 2012 he was charged by the Kyrgyz authorities with a number of crimes allegedly committed by him in inter-ethnic riots in June 2010, and his detention was ordered in absentia by a Kyrgyz district court.
In January 2015 he was arrested, detained in a facility for foreign nationals run by the Russian Federal Migration Authority, and convicted of an administrative offence as he was not carrying an identity document. He was sentenced by the Gagarinskiy District Court to a fine and administrative removal, with an order for his detention pending removal. He appealed against this decision arguing that as an ethnic Uzbek he would be subject to ill-treatment. He applied for refugee status alongside these proceedings. Interim measures were granted by the ECtHR to prevent his removal from Russia on 10 March 2015. Two days later, his application for refugee status was dismissed and the applicant was taken to the airport. His relatives were told that he would be expelled, but after his lawyer arrived at the airport, he was informed that he had been returned to the detention centre. On 20 March 2015 his appeal against administrative removal was rejected by the appellate court, which considered that he had not demonstrated a risk of ill-treatment.
The Court, in reliance on its previous case-law as well as reports on the country situation by NGOs found that the overall human rights situation in Kyrgyzstan remained highly problematic. It considered that the applicant was a member of a particular social group, namely ethnic Uzbeks, systematically exposed to a treatment contrary to Article 3 ECHR in Kyrgyzstan. The Court considered that the issue of the risk of ill-treatment was not subjected to rigorous scrutiny by the Russian authorities either in the asylum proceedings or the expulsion proceedings, and found that Russia would violate Article 3 by expelling the applicant to Kyrgyzstan.
The applicant claimed to have been badly beaten by police officers with rubber truncheons whilst in detention, in February 2015. He took photos of his injuries but the medical authorities refused to record these, and his requests for this incident to be investigation was not carried out. The Court considered that the account by the applicant of his alleged ill-treatment was detailed , specific and consistent with the photos raising prima facie evidence which should then shift the burden of proof to the government. It made a finding of fact that the applicant had been beaten by agents of the state in violation of Article 3. It also found that the Russian authorities had failed to carry out an effective investigation into this incident, violating the procedural limb of Article 3.
In relation to the applicant’s detention, in line with its other recent case law on this matter, the Court found that the applicant did not have at his disposal any domestic procedure by which to judicially review the lawfulness of his detention, in violation of Article 5(4) ECHR. This also contributed to a finding that his detention was arbitrary. Domestic law did not satisfy the principle of legal certainty given that there were no time limits set, and the applicant’s detention pending expulsion appeared to be punitive in nature with a lack of requisite safeguards, in violation of article 5(1) ECHR. 

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Effective access to procedures
Effective remedy (right to)
Inhuman or degrading treatment or punishment
Right to remain pending a decision (Suspensive effect)