Two recent cases against Russia illustrate neatly the way in which the European Court of Human Rights assesses claims that an applicant cannot be extradited to a third country because they would be at risk of torture.
In both cases, the applicant was an Uzbek national who was living in Russia and faced extradition back to Uzbekistan. In the first case, Rustam Zokhidov was wanted by Uzbek authorities in relation to his alleged membership in a banned religious organization and for allegedly making public appeals to overthrow the government. In the second, Bafokul Bakoyev was wanted in relation to fraud charges.
In both cases, the European Court noted that reports have painted an alarming picture of the human rights situation in Uzbekistan. However, general human rights problems are normally not enough to prevent extradition to face charges. And although the court has repeatedly found that extraditions to Uzbekistan would violate the prohibition on torture, it has also rejected the claim that the situation is so bad that any criminal suspect runs the risk of torture and therefore all extraditions must be banned (Elmuratov v. Russia).
Most of the cases where extradition to Uzbekistan has been deemed a violation against the prohibition on torture involved politically and/or religiously motivated criminal offences (e.g. Ismoilov and Others v Russia; Muminov v. Russia; and Yuldashev v. Russia). It made a similar finding in Mr. Zokhidov’s case. It pointed to the allegations of systematic torture made by detainees accused of membership of proscribed religious organizations. It recalled that when the applicant is a member of a particular group and reports by independent international human rights protection bodies or NGOs provide serious reasons to believe that that group is systematically ill-treated, then the applicant does not need to demonstrate that he is at specific risk of torture. Given the nature of the case against Mr. Zokhidov, the court found his extradition would violate the prohibition of torture in Article 3 of the ECHR.
In contrast, Mr. Bakoyev’s extradition was not sought for crimes related to politics or religion, but for a regular fraud case. This is a situation where the applicant would be expected to identify individual circumstances to substantiate his fears of ill-treatment. Mr. Bakoyev did not provide any. He did not claim that he had been persecuted or ill-treated in the past, he was not a member of any political or religious organization, nor was his family politically or religiously active or subject to persecution. Bakoyev did not explain how he was at risk and referred only to the broad practice of torture in Uzbekistan, which was considered in detail by the Russian courts. The European court found his extradition therefore would not violate the European Convention.
Torture of detainees is pervasive in Uzbekistan and many of the other Central Asian countries, including Kazakhstan and Kyrgyzstan where the Open Society Justice Initiative is seeking remedies for abuse. But these cases are a reminder that even where the practice is widespread, applicants seeking to avoid extradition must still draw a direct link between torture and their case—either by establishing their membership in a group which is systematically targeted, or through their individual circumstances and experience.
Unfortunately, these cases are also a reminder that a favorable judgment from a human rights court is not always the end of the story. Despite the fact that the court ruled that Mr. Zokhidov’s extradition would be a violation of Article 3, and that it had earlier issued an interim measure asking Russia not to extradite him, the victory rings hollow. Mr. Zokhidov had already been deported by the Russian authorities to Uzbekistan more than a year earlier, at the end of 2011 This continues a worrying pattern of Russian authorities transferring suspects to Central Asian states, often outside of regular extradition procedures (e.g. Iskandarov v. Russia), and sometimes even in violation of interim orders by the European Court (e.g. Abdulkhakov v. Russia).