Message: Khairullo Tursunov against Kazakhstan. Message No. 538/2013. The decision was adopted by the Committee against Torture (hereinafter referred to as the Committee) on May 8, 2015.
In 2013, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
Subject of the communication: the applicant's expulsion to Uzbekistan.
Substantive issues: the risk of being subjected to torture upon return to the country of origin.
Legal positions of the Committee: The Committee recalls that, guided by its general comment No. 1, it will rely heavily on the conclusions reached by the authorities of the State party concerned, but that the Committee is not bound by such conclusions and, in accordance with paragraph 4 of article 22 of the Convention, is entitled to freely assess the facts taking into account all circumstances in each specific case (paragraph 9.9 of the decision).
The Committee's assessment of the factual circumstances of the case: The Committee notes the lawyer's assertion that torture and ill-treatment, especially against extradited asylum seekers, appear to be systematically used in Uzbekistan. He further notes the detailed allegations that in the past, before leaving for Kazakhstan, the applicant had been subjected to religious persecution and ill-treatment by the Uzbek authorities. He... Takes note of the defence counsel's argument that the judicial proceedings in the State party, which resulted in the decision to expel the applicant, were not fair, since the applicant was not provided with the services of an interpreter; that the courts did not consider the merits of the applicant's allegations that he would be at risk of torture if extradited, and did not consider according to the procedure of judicial supervision, the decision of the Migration Committee to reject his application for asylum. It further notes the State party's allegations that the applicant and his lawyer were informed of the right to request the services of an interpreter, but did not do so; that the Office of the United Nations High Commissioner for Refugees, having initially disagreed with the decision following the examination of the application, later reserved to the State party the right to decide on the issue of the applicant's extradition. In addition, the State party expressed the view that the extradition procedure was in accordance with both domestic and international standards and that the courts that examined the applicant's appeals against the extradition decision were not competent to review the Migration Committee's decision to reject his asylum application. The Committee takes due account of the State party's statement on the assurances received from the Uzbek authorities that the complainant will not be persecuted on political grounds or on grounds of race, religion, nationality or political views; that he will not be subjected to torture, violence or inhuman or degrading treatment. He... Notes the information provided by counsel that, after extradition to Uzbekistan, the applicant was sentenced to 16 years in prison there, despite the fact that during the criminal investigation he was allegedly subjected to pressure and ill-treatment, which caused the applicant to admit guilt for the crimes and his silence during the court hearings. Finally, the Committee notes the State party's argument that the substance of the criminal case is consistent with the charges against the complainant indicated in the extradition request and that the sentence imposed was not intended to subject him to repression or torture (paragraph 9.5 of the decision).
The Committee notes that the complainant reportedly practices his religion outside officially authorized religious institutions... Notes that the applicant was extradited at the request of Uzbekistan, which contained charges of serious crimes, including religious extremism and attempts to overthrow the constitutional order, and on the basis of the State party's conclusion that he could pose a threat to its interests and security. The Committee reiterates the concern expressed in its concluding observations on Kazakhstan's second periodic report regarding the forced return of people to Uzbekistan for reasons of regional security, including the fight against terrorism, as well as the lack of information on their conditions of detention, treatment and whereabouts (see CAT/C/KAZ/CO/2, paragraph 15). He... Notes that the principle of non-refoulement, enshrined in art. 3 of the Convention is of an absolute nature and that a possible threat to security does not exempt a State party from its obligation not to expel or return ("refouler") a person to another State if there are serious grounds to believe that he or she may be in danger of being subjected to torture there (paragraph 9.7 of the decision) (See, mutatis mutandis, Communications No. 444/2010, Abdusamatov et al. v. Kazakhstan; No. 39/1996, Paes v. Sweden, Views adopted on April 28, 1997; No. 110/1998, Nunes Cipana v. Venezuela, Views adopted on November 10, 1998, paragraph 5.6; and No. 297/2006, Singh Sogi v. Canada, decision adopted on November 16, 2007).
In the circumstances of the present case, the Committee considers that, both on the basis of its own concluding observations and in the light of the information provided to it in this case, the existence in Uzbekistan of a practice of gross, flagrant and mass violations of human rights and a serious threat of torture or other cruel, inhuman or degrading treatment, especially against persons who professing their religion outside officially authorized religious institutions is sufficiently proven. In this regard, it notes the applicant's allegations that before leaving for Kazakhstan, he was the object of persecution on religious grounds, including detention and torture (paragraph 9.8 of the decision).
In the present case, the Committee notes that the complainant, who was previously persecuted in Uzbekistan because of his religious beliefs and was accused of creating an extremist organization and terrorism in the country and extradited by the State party on the basis of these charges, has sufficiently demonstrated that there is a foreseeable, real and personal risk for him to be subjected to torture upon return to Uzbekistan. In these circumstances, the courts of the State party were obliged to properly analyze the likelihood of torture against the applicant, guided by the provisions of both national legislation (paragraph 5 of article 532 of the Code of Criminal Procedure) and international norms (for example, article 3 of the Convention). Therefore, the Committee concludes that the State party's authorities failed in their duty to conduct an individual risk assessment before returning the applicant to Uzbekistan (paragraph 9.9 of the decision).
With regard to the diplomatic assurances received by the State party from the Uzbek authorities as sufficient protection against this apparent threat, the Committee recalls that such assurances cannot be used as a tool to avoid compliance with the principle of non-refoulement. The Committee notes that the State party has not provided sufficient specific information on whether it conducts monitoring in one form or another in the period after expulsion and whether it takes any measures to ensure the objectivity, impartiality and sufficient credibility of this monitoring (para. 9.10 solutions).
The Committee's conclusions: The State party's extradition of the applicant to Uzbekistan is in violation of article 3 of the Convention (paragraph 9.9 of the decision).