TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Finally, let me bring the attention of the Court to the extraordinary political crisis that started in Kyrgyzstan last year.
AP2 (Applicant): We believe that the current instability in the country raises further concerns.
AP2 (Applicant): Moreover, the new president of Kyrgyzstan, Mr. Sadir Jafarov, was a member of a right-wing
AP2 (Applicant): nationalist party, Ata Jurd.
AP2 (Applicant): He also suggested that ethnicity should be indicated in Kyrgyzstani national passports, as it used to be in the past.
AP2 (Applicant): We strongly doubt that the rule of law will fully dominate in Kyrgyzstan in the near future, at least in respect of the Uzbek minority.
AP2 (Applicant): Now I would like to pass the floor to my colleague, Ms. Nadezhda Yermolayeva.
AP1 (Applicant): Mr. President, Honorable Court,
AP1 (Applicant): following the description of the general situation of the Uzbek ethnic minority in Kyrgyzstan, I will address the applicants' individual circumstances and practical ineffectiveness of suggested protective mechanisms, including diplomatic assurances of the Kyrgyz Republic.
AP1 (Applicant): Of course, the situation of the applicants differs as regards official grounds of their prosecution.
AP1 (Applicant): But they definitely have in common a more significant feature.
AP1 (Applicant): Both of them are ethnic Uzbeks, and the applicants' ethnic identity makes them both members of a particularly vulnerable group, ethnic Uzbeks facing detention in Kyrgyzstan due to criminal charges of any nature.
AP1 (Applicant): I should underline the word any in my previous sentence as it aligns with the Court's thinking.
AP1 (Applicant): Since the cases of Mahmud Janirgachev and Mamad Aliyev, both versus Russia, where the applicants were charged with different criminal offenses, the Court has indicated that the mere fact of Uzbek ethnicity of a person who faces detention in Kyrgyzstan is a factor creating a sustained risk of torture and maltreatment for that person.
AP1 (Applicant): Thus, the essence of the charges referred to by the responding government is only one of the factors taken into account by the Court in combination with other significant individual circumstances.
AP1 (Applicant): The government argue that the nature of the charges against the first applicant and his criminal prosecution has nothing to do with his ethnicity.
AP1 (Applicant): It is not disputed by the parties that the applicant was a businessman in Kyrgyzstan and he is charged with misappropriation.
AP1 (Applicant): The applicant notes, however, that criminal prosecution has often been used by the Kyrgyzstan authorities as a method of pressure on relatively wealthy ethnic Uzbeks and a source of corruption.
AP1 (Applicant): Numerous facts of deprivation of property of ethnic Uzbeks were reported by human rights organizations and the applicant maintains that he has become a victim of this practice.
AP1 (Applicant): In reply to the applicant's arguments about risk of torture for them in Kyrgyzstan, the government doubts that their stories and concerns were genuine.
AP1 (Applicant): As regards the first applicant, Mr. Hassanov,
AP1 (Applicant): the government argue that his statements in domestic proceedings were controversial.
AP1 (Applicant): Thus, he submitted during the refugee status interview that he had left Kyrgyzstan because of his fear to be persecuted on ethnic grounds.
AP1 (Applicant): While he had not mentioned it when questioned by a prosecutor shortly after his arrest.
AP1 (Applicant): It should be noted that the express questioning of a prosecutor in extradition check is conducted as soon as possible after the arrest, briefly, formally and without establishing full picture of the applicant's circumstances.
AP1 (Applicant): During this procedure, it is in practice impossible for a detainee to obtain assistance of a lawyer.
AP1 (Applicant): The first applicant maintains that his replies to the prosecutor's question were given in stressful situation.
AP1 (Applicant): At that moment, he, for the first time, found out that he was an internationally wanted person.
AP1 (Applicant): He could not immediately realize the underlying reasons for this criminal prosecution.
AP1 (Applicant): Later, when asked detailed and targeted questions by a competent migration authority, the first applicant was given an opportunity to substantiate his request and to describe his fears.
AP1 (Applicant): In respect of the second applicant, Mr. Rahmanov,
AP1 (Applicant): the government underlines that he left Kyrgyzstan in early 2011 for economic reasons.
AP1 (Applicant): And that is absolutely true.
AP1 (Applicant): Since after the ethnic clashes of 2010, it was practically impossible for an ethnic Uzbek to find a job in Kyrgyzstan.
AP1 (Applicant): Yet, after his arrest in Russia on the basis of the Kyrgyzstani search warrant, he immediately informed the Russian authorities of his fears.
AP1 (Applicant): He expressly asserted that he was scared of return to Kyrgyzstan since he could be prosecuted for a crime which he had never committed and thus definitely tortured in order to extract his confession.
AP1 (Applicant): The government maintains that the applicant's arguments about alleged ill-treatment were duly considered by the national courts and authorities according to the standards of the court's case law.
AP1 (Applicant): They refer to the recent case of ASN and others that served the Netherlands.
AP1 (Applicant): And the court found there that the applicant's rights would not be violated in case of their expulsion to Afghanistan and explained that the applicants, being of Sikh ethnic origin, failed to demonstrate that their personal circumstances prevail and reveal an outrageous risk of ill-treatment in comparison with other members of already marginalized ethnic community.
AP1 (Applicant): The court in particular underlined the extract from the interview of one of the applicants in ASN.
AP1 (Applicant): I quote, Why do you think that you will end up in prison or killed?
AP1 (Applicant): I mean that we feel imprisoned.
AP1 (Applicant): We disagree with the government's interpretation of the court's position in this case as allowing refinement of a member of a vulnerable group to the country of his or her origin.
AP1 (Applicant): We believe that this judgment merely reasserts the limits of a group particularly vulnerable to ill-treatment.
AP1 (Applicant): We maintain that there are surely additional precise personal circumstances in the present case indicating a particularly high risk of torture and attributing the applicants to such especially vulnerable group.
AP1 (Applicant): Both applicants are ethnic Uzbeks, will definitely end up in quite a real physical prison as opposed to the applicants in the ASN case who just feel imprisoned.
AP1 (Applicant): The applicants in this case will be arrested in a country where both of them are suspects to the crimes against the ethnic Kyrgyz.
AP1 (Applicant): The main witnesses in their cases are ethnic Kyrgyz.
AP1 (Applicant): The majority of law enforcers are ethnic Kyrgyz.
AP1 (Applicant): These facts already clearly distinguish the applicants from other members of the Uzbek community in Kyrgyzstan as a whole and create particular risk for them to suffer ill-treatment in custody.
AP1 (Applicant): And here we come to the very important issue in the present case.
AP1 (Applicant): Does the national preventive mechanism in Kyrgyzstan guarantee protection of the detainees and especially of those of ethnic Uzbek origin against torture?
AP1 (Applicant): Are the diplomatic assurances in the Kyrgyzstani authorities effective in law and in practice?
AP1 (Applicant): We believe that answers to these questions will illustrate how exactly, if at all, the authorities proclaimed intentions are realized in practice.
AP1 (Applicant): Today, my colleague has already described the general ineffectiveness of NPM.
AP1 (Applicant): In addition to what has already been said, I should underline the following.
AP1 (Applicant): The NPM has had practice of monitoring the rights of special categories of the detainees.
AP1 (Applicant): I mean women, minors and persons with disabilities and etc.
AP1 (Applicant): However, no research or visits were made by the NPM officials in order to monitor the rights of the ethnic minorities in penitentiary institutions.
AP1 (Applicant): It didn't happen despite the fact that the position of ethnic Uzbeks in Kyrgyzstani prisons was a matter of concern of international human rights parties.
AP1 (Applicant): In the applicant's opinion, this illustrates the reluctance of the local authorities to acknowledge the existence of the problem.
AP1 (Applicant): And the acknowledgement, however, is the first and the most important condition of effective dealing with human rights issues.
AP1 (Applicant): Further particular attention should be paid to the diplomatic monitoring mechanism introduced by the Russian and the Kyrgyzstani governments.
AP1 (Applicant): The diplomatic assurances of the Kyrgyzstani authorities are of general nature.
AP1 (Applicant): Literally, the prosecutor's general office of the Kyrgyz Republic indicates that the applicants would be able to have legal representation and would be not subjected to treatment contrary to the international standards.
AP1 (Applicant): It also indicates that after the applicant's extradition, the Russian diplomats will be able to visit them in custody.
AP1 (Applicant): These undertakings are formulated in standard terms without precision.
AP1 (Applicant): These general words could be of effect in practice if other additional conditions were met.
AP1 (Applicant): First of all, there must be legislative or international treaties provisions which would in detail regulate the procedure of visits of the Kyrgyzstani penitentiary institutions by Russian diplomats.
AP1 (Applicant): And secondly, such promises might be legally binding.
AP1 (Applicant): However, this is not the case.
AP1 (Applicant): We expected that the government's memorandum would contain references to some treaties between Russia and Kyrgyzstan governing the procedure.
AP1 (Applicant): Yet, in the absence of such treaties, the government refers to the ECHR and the Convention of 6 March 1998.
AP1 (Applicant): Both conventions contain no provisions which would govern the issue.
AP1 (Applicant): They do not guarantee the possibility of the diplomatic staff to visit the extradited persons in custody in order to monitor their state.
AP1 (Applicant): Further, the government refers to the methodological instructions for the diplomats adopted by the Russian Ministry for Foreign Affairs.
AP1 (Applicant): It is important to underline that these instructions have a unilateral nature.
AP1 (Applicant): They contain general recommendations for the Russian diplomats in extradition cases regardless of the country of destination.
AP1 (Applicant): They were not specially drafted to regulate the monitoring activities in Kyrgyzstan.
AP1 (Applicant): Neither do they bind Kyrgyzstani authorities in any way.
AP1 (Applicant): According to the instructions, the first step to be taken by the Russian diplomats is the receipt of written permission from the authorities of the destination country.
AP1 (Applicant): This fact alone makes the diplomatic mechanism ineffective since it is completely dependent on the Kyrgyzstani authorities' discretion.
AP1 (Applicant): I would like to bring the Court's attention to the letter of the Russian Ministry for Foreign Affairs attached to the government's written submission.
AP1 (Applicant): It confirms that in 2019 such permissions were granted only after numerous requests.
AP1 (Applicant): Even negotiating the difficulties in obtaining their permission would not guarantee the possibility of a visit since there are no legal obligations on the Kyrgyzstani party to issue such a permission.
AP1 (Applicant): Next point of concern is the frequency of such visits.
AP1 (Applicant): As it follows from the government's submission, the frequency of visits is not prescribed in any document or agreement.
AP1 (Applicant): Yet, they are usually held twice a year.
AP1 (Applicant): It definitely does not create an effective guarantee against torture in respect of extradited persons.
AP1 (Applicant): Even so, according to the government's submission, the visits were allegedly held in 2014, 2015, 2018 and 2019.
AP1 (Applicant): So, the government's argument is refuted by their own information.
AP1 (Applicant): No visits were ever made in 2016, 2017 as well as 2020 in view of the COVID-19 health crisis and the state of emergency declared by the Kyrgyzstani government in March.
AP1 (Applicant): And by the moment, it is still unclear for how long such state will continue.
AP1 (Applicant): In addition to this, as it follows from the letter of the Ministry of Foreign Affairs, which was received by the Russian Prosecutor's General Office in late September 2020, the diplomats were never informed in advance about forthcoming extraditions from Russia to Kyrgyzstan.
AP1 (Applicant): It follows from the above-mentioned letter that only in the beginning of 2020, the Russian and the Kyrgyzstani authorities managed to reach an agreement on the necessary measures to be taken to ensure granting access to the extradited persons in a timely manner.
AP1 (Applicant): It proves that all the previous visits of Russian diplomats were belated.
AP1 (Applicant): Thus, they were ineffective as the risk of ill-treatment reaches its highest point in the first days after the extradition.
AP1 (Applicant): But since 2020, there have been no visits at all.
AP1 (Applicant): It means that the monitoring mechanism has never shown any effectiveness.
AP1 (Applicant): And last but not least is the procedure of the inspections and its results.
AP1 (Applicant): It follows from the letter of the Russian Ministry of Foreign Affairs that even the most basic requirement of such kind of inspections, the confidentiality of the visits, is hardly ensured in many cases.
AP1 (Applicant): Furthermore, even if the procedure results in revealing facts of torture, it is not clear either from the government's submission or from the legislative acts or international treaties what kind of actions can be taken by the Kyrgyzstani law enforcement agencies after the Russian authorities address them through their diplomatic channels.
AP1 (Applicant): Anyway, the question whether the Kyrgyz party is obliged to act in reply remains without an answer.
AP1 (Applicant): In confirmation of their position in respect of the usage of the diplomatic assurances, the government refers to the case of Mamat Kulov and Askar of Messrs. Turkey.
AP1 (Applicant): In particular, they underline that the court was satisfied by the fact that Turkish diplomats visited the extradited persons in the Uzbekistani prison.
AP1 (Applicant): Yet more than 80 people visited Mr. Mamat Kulov and Askar of and only two of them were the officials of the Turkish embassy.
AP1 (Applicant): The rest of the visitors represented other embassies and an independent international NGO, Helsinki Watch.
AP1 (Applicant): In comparison, in the present case, the government suggests that the visits of only Russian diplomatic staff would be enough.
AP1 (Applicant): We assert that effective functioning of a diplomatic monitoring mechanism requires involvement of independent international actors, including NGOs.
AP1 (Applicant): However, nothing in the present cases gives us even a hint that the Kyrgyzstani authorities are ready to allow presence of independent inspectors in their places of detention.
AP1 (Applicant): Summing up the applicants' arguments in the present case, I should point out the following issues.
AP1 (Applicant): First, the applicants belong to a particular vulnerable group, members of which face real and imminent risk of ill-treatment if extradited to Kyrgyzstan.
AP1 (Applicant): That is not only because they are ethnic Uzbeks, but because they are ethnic Uzbeks with a 100% probability of imprisonment in Kyrgyzstan.
AP1 (Applicant): Next, widespread practice of abuse and discrimination of ethnic Uzbeks still exists in Kyrgyzstan.
AP1 (Applicant): And third, introduced mechanisms of control and supervision over the rights of the detainees, especially those of the Uzbek ethnic origin, do not work effectively and have no positive prospects for that.
AP1 (Applicant): For these reasons, the applicants believe that their extradition to Kyrgyzstan will violate their rights under Article 3 of the Convention.
Robert Spano (JudgeP): I just want to confirm that both audio and video were clear throughout and your submissions were noted.
GR1 (Government): Mr. President and honorable judges of the court, good morning.
GR1 (Government): This case is based on the applicants allegations that they could become victims of all treatment after extradition to the country of their citizenship, Kyrgyzstan for criminal prosecution.
GR1 (Government): And the applicants believe that the general situation in Kyrgyzstan and their ethnic origin make the relevant risk so high.
GR1 (Government): So for complete ban of their return to their motherland.
GR1 (Government): And we consider these allegations to be ill-founded.
GR1 (Government): And under the convention and these courts practice, just the abstract fears of the applicants and the subjective views of their representative of the current political situation in Kyrgyzstan should not be essence of the case.
GR1 (Government): The core legal issue under their consideration of the grand chamber today, as we see, that should be the monitoring mechanism, but not the NPM or the results of the recent presidential elections in Kyrgyzstan and the political party where the president of Kyrgyzstan is the member of.
GR1 (Government): It is just the monitoring mechanism specially developed and maintained by the Russian government in collaboration with a non-member state in accordance with this court previous case law.
GR1 (Government): And I would like to mention that once again, this monitoring mechanism was specially developed as the reaction on the European Court of Human Rights case law to make sure that these precedents and these practices is duly endorsed in these cooperation.
GR1 (Government): And for several years, it provides effective protection for extradited person from the alleged risk of ill-treatment.
GR1 (Government): And at the same time, it gives an opportunity for proper legal cooperation and crime fighting in the CIS region.
GR1 (Government): There are no examples of any actual failures, but just only potential failures as the representatives mentioned today, every actual specific failures of these monitoring mechanisms.
GR1 (Government): And this application to the grand chamber is actually from our point of view, is just the attempt to undermine this carefully designed diplomatic mechanism without any proper arguments and evidence.
GR1 (Government): Before elaborating on these issues in more detail, please let me recall briefly the key findings of the chamber in the case as the president highlighted in the beginning of the hearings.
GR1 (Government): First, chamber decided that the situation in Kyrgyzstan did not in itself show that they would be a violation of the convention if the applicants extradited there.
GR1 (Government): Second, ethnic Uzbeks no longer constitutes a vulnerable group facing risks of all ill-treatment only in connection with their origin.
GR1 (Government): And third, and it is important what also to the chamber have decided, that the applicants had failed to provide strong evidence that they would run a risk of ill-treatment in Kyrgyzstan.
GR1 (Government): Last but not least, the diplomatic assurances and the monitoring mechanism created by the Russian and Kyrgyz authorities were capable of mitigating possible risks of ill-treatment in connection with the applicants' ethnical origin.
GR1 (Government): And we, my government, for sure support and welcome these findings of the chamber, and we hope that the grand chamber will endorse them as well.
GR1 (Government): I will now touch upon each of the findings with a special emphasis on the monitoring mechanism, as I have mentioned at the beginning of my speech.
GR1 (Government): And answering again the applicants' allegations concerning general situation with ill-treatment in Kyrgyzstan, especially in respect of persons of non-Kyrgyz ethnic origin, I recall the court's judgments in the case of Turgunov versus Russia and Madali versus Russia, where it was stated that although current human rights situation in the country was problematic, at the time there was no indication that it had ever been serious enough to call for a total ban of extradition.
GR1 (Government): Furthermore, it is the court's practice to evaluate human rights protection in its development, taking into account indications of improvement or deterioration of the situation in general, or in respect of a particular group or area relevant to the applicant's situation.
GR1 (Government): And the effectiveness of the Kyrgyz authorities' efforts to combat ill-treatment has been systematically assessed by international organization and respected council of the applicants also have mentioned that.
GR1 (Government): For example, we will address again the UN subcommittee on prevention of torture and other cruel, inhuman or degrading treatment or punishment noted the following positive changes in their reports of 2019, also including the involvement of civil society members in the functioning of the national preventive mechanisms, the decreased number of incidents of denial of access or delays in assessing places of detention, enhanced visibility of the mechanisms since most of the authorities are aware of its existence, the establishment of practice to draft reports to the competent authorities after the visit to a place of detention.
GR1 (Government): My respected opponents also have mentioned the Amnesty International again, that still in their public statement highlighted that Kyrgyzstan accepted most of recommendations of the working group for universal periodic review, including those eradicating torture and ill-treatment.
GR1 (Government): And after them, again, these inter-ethnic clashes in 2010, the Kyrgyz authorities have taken a number of steps, as we know from the Kyrgyz government and from the analysis made by the Russian Minister of Foreign Affairs, to address the issues of discrimination of national minorities, including ethnic Uzbeks, both in law and practice.
GR1 (Government): International observers report that the instances of ethnic discrimination have not occurred in Kyrgyzstan on any kind of massive or systematic scale in the recent years.
GR1 (Government): In 2018, the UN Committee of Elimination of Racial Discrimination noted that the concerns in this regard have switched more to the political sphere and not to the ill-treatment in prisons and detention.
GR1 (Government): European Union annual reports mark the overall human rights situation as stable and indicate consistent positive changes in combating torture in Kyrgyzstan.
GR1 (Government): Interestingly, and it's also some recent facts, that even the Uzbekistan itself, the Uzbekistan state authorities do not appear to be considering that ethnic Uzbeks are being systematically persecuted or ill-treated in Kyrgyzstan.
GR1 (Government): For example, we are aware in the very end of the last year of recent extradition proceedings in which the Uzbekistan authorities refused to bring charges against the Kyrgyz citizen of Uzbek origin for committing and murdering Uzbekistan itself.
GR1 (Government): And instead, his criminal case was forwarded by Uzbekistan authorities to Kyrgyzstan as the state of citizenship for investigation and Russia was requested to extradite him there.
GR1 (Government): It should be noted that situation with human rights protection in Kyrgyzstan, especially in respect of combating torture and ill-treatment has improved over the last 10 years.
GR1 (Government): And anyway, and we should be fair, you cannot demand the same high standards of the human rights protection for the council of your country and non-member state as Kyrgyz is.