Views of the Human Rights Committee of July 27, 2018 in the case of F.A. v. the Russian Federation (communication No. 2189/2012).
In 2012, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Russian Federation.
Subject of the message: extradition to Uzbekistan.
Substantive issues: prohibition of torture, arbitrary detention.
Legal positions of the Committee: The Committee refers to paragraph 12 of its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise expel a person from its territory, when there are serious grounds to believe that there is a real risk of causing irreparable harm, such as provided for in articles 6 and 7 of the Covenant. The Committee also indicated that such a danger should be personal (See H. Denmark (CCPR/C/110/D/2007/2010), paragraph 9.2.) and that there is a high threshold for presenting serious grounds for determining whether there is a real risk of irreparable harm (See X. v. Denmark, paragraph 9.2, and X. Sweden (CCPR/C/103/D/1833/2008), paragraph 5.18.). In assessing the existing danger, all relevant facts and circumstances, including the general human rights situation in the author's country of origin, must be taken into account. The Committee further refers to its jurisprudence, according to which weight should be given to the assessment carried out by the State party (See Lin v. Australia (CCPR/C/107/D/1957/2010), paragraph 9.3, and E.P. and F.P. Denmark (CCPR/C/115/D/2344/2014), para. 8.4.), and notes that, as a general rule, it is for the courts of the States parties to the Covenant to assess the facts and evidence or to ensure the application of domestic law in a particular case, except if it can be proved, that such an assessment or application was clearly arbitrary or amounted to an obvious error or denial of justice (paragraph 9.3 of the Considerations) (See E.P. and F.P. v. Denmark, paragraph 8.4.).
The Committee refers to its general comment No. 35 on the right to liberty and security of person, in which it recalls that article 9 of the Covenant requires that the procedure for the exercise of lawful deprivation of liberty also be established in accordance with the law, and States parties should ensure compliance with such procedures prescribed by law (paragraph 23) (paragraph 9.6 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that his extradition from the Russian Federation to Uzbekistan would put him at risk of being subjected to torture, which is contrary to article 7 of the Covenant (paragraph 9.2 of the Views).
The Committee notes that the author's allegations that he would be subjected to torture if extradited to Uzbekistan were examined by the Federal Migration Service of the State party during the refugee status determination procedure and by the courts of the State party during the consideration of the decision on his extradition, which found that in both cases he did not substantiate his claim of He is in real, foreseeable and personal danger of being subjected to torture if returned to Uzbekistan. The Committee also notes that the author's fear of being subjected to torture is related to the alleged threats against his brother for criticizing the Uzbek authorities in 2009 and 2011 and to the general human rights situation in the country of origin, and not to his specific case. The Committee notes that the author does not dispute the fact that prior to his detention in Moscow in 2011 in connection with an extradition request, he freely visited Uzbekistan several times and returned back to the Russian Federation without any problems with the Uzbek authorities, for example when crossing the Uzbek border. The Committee also notes that, according to available information, the author and his brother were prosecuted on charges of fraud in Uzbekistan, while there is nothing to indicate a political background to these charges. The Committee also notes the absence of any evidence that the decisions of the State party's authorities were manifestly unfounded in relation to the author's allegations. In the light of the above, the Committee cannot conclude that the information provided to it indicates that the author's extradition to Uzbekistan exposes him to a real risk of inhuman treatment contrary to article 7 of the Covenant (paragraph 9.4 of the Views).
The Committee further notes the author's claim, contained in his subsequent submission on 19 August 2012, that his detention pending extradition after 7 December 2011 constitutes a violation of article 9 of the Covenant. The Committee takes note of the author's claim that he was continuously detained for more than 10 months prior to his extradition. He also notes his claim that Uzbekistan has not submitted an extradition request within the required time frame in accordance with applicable law and that his detention is therefore a violation of the law. The Committee... Notes that the State party has not responded to these specific allegations (paragraph 9.5 of the Views).
The Committee notes that the author was detained on 5 November 2011 in the Russian Federation on the basis of a warrant issued against him by Uzbekistan, and that on 7 November 2011, the Presnensky District Prosecutor's Office in Moscow ordered his detention pending extradition. The extradition of the author was requested by the Prosecutor General's Office of Uzbekistan on December 9, 2011. Paragraph 1 of Article 62 of the Minsk Convention, which regulates extradition between the countries of the Commonwealth of Independent States, provides that a person taken into custody pending extradition must be released if the request for his extradition is not received within one month from the date of detention. The Committee notes that Uzbekistan has not ratified... [P]The protocol to the Minsk Convention, according to which this period was extended to 40 days from the date of detention (paragraph 9.7 of the Considerations).
The Committee.... Notes that in his appeal against the second extension of his detention, the author claimed that the authorities had not presented any grounds that would justify his [deprivation of liberty], such as the exceptional complexity of the criminal charges against him or any specific measures in connection with extradition...; that article 109 of the Code of Criminal Procedure of the Russian Federation does not refer to any circumstances justifying the continued detention of a person after receiving an extradition request against him and the decision to extradite him by the Prosecutor General's Office; that the extradition request was received from Uzbekistan more than a month after the author's detention in violation of the requirements The Minsk Convention and the author's constitutional rights; and that the author should therefore have been released. The Committee notes that, having confirmed the decision of the District Court on the second extension of the period of detention,... The court briefly outlined the reasons for the extension, without providing additional justification. The Committee notes that neither the national courts nor the State party have considered the specific arguments against the extension of the period of detention put forward by the author's lawyer. In the absence of any explanation from the State party, the Committee considers that due consideration should be given to the author's allegations. Accordingly, in the circumstances of the present case, the Committee considers that the facts presented reveal a violation of the author's rights under article 9 of the Covenant (paragraph 9.9 of the Views).