Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a Bulgarian national, who was born in 1968 and at the relevant time lived in Svoboda, the region of Haskovo.

The applicant used to work in the village of Svoboda, with the Home Patronage branch of the Chirpan District Social Care Centre (Домашен социален патронаж, Общински център за социални грижи). At the relevant time, Social Care Centres were State administrative bodies funded by the State and municipal budgets.

On 3 December 1992 the applicant suffered an accident at work. Subsequently she underwent surgical operations. She was unfit for work for at least six months and continued experiencing health problems for several years thereafter.

On 20 July 1993 the applicant instituted civil proceedings against her former employer, the local Home Patronage, claiming pecuniary and nonpecuniary damages. A representative for Home Patronage took part in the proceedings apparently maintaining that the applicant was responsible for the accident and that the claims were excessive.

On 31 March 1995 the Chirpan District Court partially granted the applicant’s claim and awarded her 15,000 Bulgarian levs (“BGL”) in nonpecuniary damages and BGL 4,500 in costs, plus statutory interest.

On 20 April 1995 the defendant, the Home Patronage, lodged an appeal with the Stara Zagora Regional Court.

According to the Government, on 17 July 1995 the Social Care Centre sent to the applicant a registered letter inviting her “to collect BGL 15,000” but the applicant refused receipt of the letter.

According to the applicant, as of 30 September 1995 the proceedings before the Regional Court were still pending.

On an unspecified date these proceedings ended and the District Court’s judgment became final and enforceable.

Following a conversation between the applicant and employees of the Social Care Centre, on 5 May 1996 the Social Care Centre sent to the applicant a letter inviting her “to collect BGL 15,000”.

On 9 May 1996 the applicant submitted a written request to the District Social Care Centre insisting on payment in compliance with the District Court’s judgment, including all interest and costs. She offered her calculation of the interest that had accrued since the relevant starting date, 20 July 1993, and stated that the amount due was BGL 40,620.

The applicant, who at that time lived in another town, authorised another person to receive the money.

According to “minutes”, drawn up by the accountant and two other employees of the Social Care Centre, on 15 May 1996 they withdrew BGL 15,000 from the Centre’s bank account but the applicant’s representative refused to accept the money.

On 3 June 1996 the Social Care Centre wrote to the applicant stating that they “wished to pay the damage sustained, in the amount of BGL 15,000”, and invited her to visit the Centre for that purpose on 7 June 1996. The letter also stated that the Centre was “free from any obligation to pay interest on the amount since the date of the conversation with [the applicant] held in the presence of [the Centre’s] employees”.

On 6 June 1996, upon the applicant’s request, the Chirpan District Court issued a writ of execution ordering the Home Patronage to pay to the applicant BGL 15,000 principal, BGL 4,500 in costs, and interest as from 20 July 1993.

On 6 June 1996 the applicant submitted a request to the competent enforcement judge seeking the institution of enforcement proceedings. That was refused and the applicant was informed, upon her complaints to the enforcement judge, the Regional Court and the Ministry of Justice, that under Article 399 of the Code of Civil Procedure execution of judgments against state bodies was only possible through submission of the writ of execution directly to the state organ concerned. Enforcement proceedings were not provided for. An attachment of the defendant’s bank account was not possible.

The applicant was also informed that the refusal to execute a final judgment could be a punishable criminal offence.

On an unspecified date the applicant complained to the Ministry of Labour and Social Care, which invited the mayor of the Chirpan municipality to comment.

On 15 October 1996 the mayor wrote the following to the Ministry and to the applicant:

“Having studied the [applicant’s] request and having discussed the matter with the management of the municipal Social Care Centre, we reached the conclusion that the problem is under the jurisdiction of the judicial authorities. The municipal Social Care Centre considers that the civil proceedings had been handled wrongly: the [defendant] had been Home Patronage, which has no legal personality and does not have its own bank account. For this reason, the Social Care Centre sees no legal grounds, for purposes of the financial authorities, to effect the payment. Apparently the matter should be examined additionally by the courts. The municipal administration cannot interfere in this matter.”

In 1996 the applicant submitted a complaint to the prosecution authorities requesting the punishment of those responsible for the failure to enforce the judicial award.

In April or May 1997 she complained of the inactivity of the prosecution authorities.

On 19 May 1998 a prosecutor requested information from the Social Care Centre. On 29 May 1998 the Centre replied to the prosecutor, with a copy to the mayor of Chirpan. It stated that Home Patronage was not a separate legal person but formed a part of the Social Care Centre which, in turn, was under the administration and budgetary control of the municipality. Therefore, the applicant could obtain payment by submitting her documents to the municipality of Chirpan. The date on which that information was transmitted to the applicant is unclear.

On 6 April 1999 the applicant was heard by a prosecutor.

On 17 March 2000 the prosecutor terminated the inquiry noting that the applicant had been informed that she had to submit her writ of execution and a copy of the judgment to the municipality of Chirpan.

During the relevant period inflation in Bulgaria was running high and the national currency was depreciating. In particular, on 31 March 1995, the date on which the District Court’s judgment was delivered, BGL 66 were necessary to buy one United States dollar (USD), in May 1996, at the time of the applicant’s attempts to obtain payment, that figure was BGL 92, on 15 October 1996, the date on which the mayor refused to execute the judgment, it was BGL 216 and in May 1998 the exchange rate was BGL 1,782 for USD 1.

As of 1 July 1999, BGL 1,000 became 1 new Bulgarian lev (BGN). On 17 March 2000, the date on which the applicant was invited to renew her request for payment before the Chirpan municipality, USD 1 was exchangeable for BGN 1.62 (i.e., for BGL 1,620).

For the period May 1996 – March 2000 the statutory interest rate in Bulgaria varied significantly, reaching during a period of several months in the end of 1996 and the beginning of 1997 an average of approximately 200% per annum. That was however insufficient to compensate for the loss of value of the Bulgarian lev during that period.

Following the admissibility decision in the present case, on 21 February 2003 the municipality of Chirpan paid BGN 68.69 into a bank account opened by them in the applicant’s name. The amount included BGN 15 in principal, BGN 49.19 in interest for the period 20 July 1993 – 20 February 2003 and BGN 4.50 in costs. The applicant was informed by letter.

In accordance with paragraph 2 of Article 399, a person who has an enforceable pecuniary claim against the State or a state body shall receive payment out of funds allocated for that purpose under the institution’s budget.

The writ of execution shall be submitted to the financial department of the institution. If there are no funds available under the budget of the state body concerned, the higher administrative organ should undertake the necessary steps to ensure that funds become available under the budget for the following year.

Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution. Until December 1997 paragraph 1 of Article 399 of the Code of Civil Procedure expressly prohibited enforcement proceedings against state institution. Although that provision was repealed in December 1997, the legal regime remained unchanged, as paragraph 2 of Article 399 was not amended.

According to Articles 246 and 248 of the Code of Civil Procedure, a writ of execution is issued in a single copy which must be produced for execution. Where the original has been lost, a duplicata may be issued in special proceedings which require summoning the debtor at an oral hearing.

According to section 66 of the Obligations and Contracts Act, a creditor is entitled to refuse partial payment.

According to section 97 of the Obligations and Contracts Act, if the creditor fails to undertake the measures necessary to receive payment, the debtor may discharge a pecuniary debt by depositing the money in a bank account.


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1

The applicant was born in 1953 and lives in Chişinău. She is a second degree invalid.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant owns part of a house in which her neighbour (V.) owns another part. V. re-constructed her part of the house without the prior agreement of the applicant and the applicant's part of the house was seriously damaged as a result.

On 11 February 1998 the applicant initiated court proceedings claiming damages from V. Relying on an expert's assessment of the damage caused to the applicant's house, on 27 May 1999 the Buiucani District Court awarded her 12,635 Moldovan lei (MDL) (the equivalent of 1,054 euros (EUR) at the time). No appeal was made and the judgment became final and enforceable 15 days later.

According to the applicant, she wrote to various State authorities requesting the enforcement of the award but it was not enforced. On 10 July 2000 she informed the Buiucani District Court that the judgment of 27 May 1999 had not been enforced and asked it to change the manner of enforcing the judgment by transferring V.'s part of the house to the applicant. She emphasised that her own part of the house had been severely damaged and that the damage had been aggravated with the passage of time, causing a real threat to her life. The applicant relied, inter alia, on Article 359 of the Code of Civil Procedure (see paragraph 24 below).

On 13 April 2001 the Buiucani District Court accepted the claim. The new enforcement warrant was submitted to the court on 4 July 2001, following which the bailiff requested V. to comply with the judgment.

The applicant also requested the Supreme Court of Justice to transfer the examination of her cases against V., including the enforcement of the judgment of 27 May 1999, to another court in view of the inactivity of the Buiucani District Court. On 7 February 2001 the Supreme Court of Justice rejected that request as unfounded.

On 7 May 2001 the Buiucani District Court adopted an additional judgment, awarding the applicant damages (MDL 6,558) against V. for the late enforcement of the judgment of 27 May 1999. V. appealed. On 12 September 2001 the Chişinău Regional Court quashed that judgment and ordered a full re-hearing.

On 11 January 2002 the bailiff organised an auction for the sale of the part of the house belonging to V. but nobody offered the minimum asking price set. He then proposed that the court accept the applicant's request to be given title to that part of the house on account of V.'s debt to her.

On 29 January 2002 the District Court accepted that request.

In parallel to all the proceedings mentioned above, the applicant initiated administrative proceedings for the annulment of a municipality's decision adopted in 1996 confirming the lawfulness of V.'s re-construction of the house. On 17 November 1999 the Buiucani District Court accepted that request and on 5 July 2000 the Chişinău Regional Court upheld that judgment. On 28 September 2000 the Court of Appeal quashed the two judgments and adopted a new one, rejecting the applicant's claims.

V. lodged a request for the revision of judgments of 27 May 1999 and 29 January 2002 because the expert report on the damage had been signed by an expert lacking the required training and the District Court had based its judgment of 27 May 1999 on that report. The report stated the level of training of its author, who was registered by the Chamber of Commerce as that of a 1st (highest) degree expert with 23 years' work experience. On 25 April 2001 the Buiucani District Court rejected V.'s request.

On 25 April 2002 the Chişinău Regional Court accepted V.'s request and quashed the judgment of 27 May 1999 and the decision of 13 April 2001 (see paragraphs 8 and 10 above), ordering a full re-examination of the case in view of the expert's lack of adequate training. The court accepted V.'s claim that she had only found out about the expert's lack of training in December 2000 and had thus not exceeded the three-month time-limit for lodging the revision request. The applicant informed the Court about the quashing in a letter of 3 March 2003.

On 12 November 2002 the Buiucani District Court ordered an expert report to be made. On an unspecified date in 2003 the Republican Centre for Research and Regulation of Constructions (“CERCON”, a State institution) submitted its report to the court. It confirmed that, following the reconstruction of V.'s part of the house in serious violation of building regulations, the applicant's part of the house had suffered a major deterioration and had become uninhabitable. New cracks appeared in the wall after a repair, which meant that the process had not yet stabilised. A part of V.'s house created a particular danger during earthquakes and the applicant's house had lost all of its resistance to earthquakes. CERCON assessed the damage caused to the applicant's house at MDL 109,920 (EUR 7,266).

According to a statement by the judge in charge of the applicant's case regarding the proceedings after the revision of 25 April 2002, the hearings had to be adjourned (by one month on each occasion) due mainly to the applicant's representative's absence on the following dates: 1 September 2003 (the first hearing in the re-opened proceedings), 7 November 2003, 8 December 2003, 17 February 2005, 17 March 2005, 9 June 2005 and 25 August 2005.

Three more one-month adjournments had to be ordered at V.'s request: on 6 October 2003, 9 December 2004 and 30 January 2006.

On 5 February 2004 the applicant requested a new expert report to be drawn up in respect of the damage caused to her part of the house. V. supported this request. On 9 February 2004 the questions for the experts were formulated and on 20 February 2004 the court ordered the parties to bear equally the experts' costs. The expert report was sent to the court by the Republican Institute for Judicial Expertise and Criminalistics (“IREJC”, a State institution) on 8 November 2004, following a visit to the applicant's part of the house on 26 October 2004. The report largely confirmed the findings of the two previous expert reports and assessed the damage caused to the applicant's house at MDL 125,174 (EUR 7,784). It also found that the process of the deformation of the house had not yet stopped and new cracks had appeared after minor repairs had been undertaken. On 15 April 2005 the court accepted V.'s objections to the expert report and ordered a new report to be drawn up by IREJC. On 13 May 2005 IREJC sent the case file back to the court without drawing up the report. On 19 May 2005 the experts charged with drawing up the report were summoned, but they failed to appear on 5 July 2005. On 29 November 2005 V. requested another expert report. On 6 December 2005 the court sent IREJC a request for a new expert report, but on 19 December 2005 the IREJC returned the case file since V. had failed to pay IREJC its costs, as ordered by the court. The applicant stated that she did not want another report since the previous one had confirmed her position. On 30 January 2006 the court ordered the parties to each bear IREJC's costs and ordered a new report to be drawn up. In their observations of September 2006 the Government informed the Court that IREJC had not yet drawn up its report and asked for permission to submit it to the Court when it was ready. No such report has been submitted to date.

The proceedings are still pending before the Buiucani District Court.

The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)).

In addition, the relevant provisions of the Code of Civil Procedure, applicable at the relevant time, read as follows:

“Article 5. Examination of civil actions by the court.

The court shall begin the examination of a civil case:

3) at the request of the natural or legal person who asks for the protection of his or its rights or interests protected by law; ...

TITLE FIVE

EXECUTION OF COURT JUDGMENTS

Article 336. Court judgments and decisions of other authorities, which shall be executed.

The following shall be executed in accordance with the rules in the present Title of this Code:

1) judgments ... adopted by courts in civil cases: ...

Article 337. Documents of forced execution.

The following are considered documents of forced execution:

1) execution warrants ... adopted by courts...;

Article 338. Issuance of an execution warrant.

Execution warrants shall be issued by the court to the creditor after the decision becomes final...

Execution warrants shall be issued directly to the creditor or, at his or her request, shall be sent for enforcement directly by the court to the territorial subdivision of the Decisions' Enforcement Department within the Ministry of Justice.

Article 343. Submission of the document of forced execution.

The bailiff shall begin the enforcement of court judgments at the request of the persons mentioned in Article 5 of the present Code ...

Article 349. Verification of the execution of the judgment.

The judge shall verify the correct and timely execution of the judgment.

Article 359. Measures of forced execution.

The following shall be the measures of forced execution:

1) execution against the debtor's assets through their freezing and sale; ...”


Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in 1972 and lives in St Petersburg, Russia.

The applicant is an ethnic Uzbek. He was born and lived in the town of Osh in the south of Kyrgyzstan. From 1999 until June 2006 the applicant worked at the South Warehouse of the State Reserves Fund in Jalal-Abad. The majority of the Kyrgyzstani nationals of Uzbek origin – around 14% of Kyrgyzstan’s overall population – live in the south of the country, in particular, in Osh and Jalal-Abad.

On 11 July 2006 the applicant arrived in St Petersburg, Russia, in order to accompany his wife’s father who was having medical treatment in a clinic in St Petersburg. According to the applicant, he has not returned to Kyrgyzstan since then. He stayed in Russia and worked as a taxi driver. According to records of the traffic police for St Petersburg and Leningrad region, he committed minor traffic violations on 16 August, 17 and 22 September and 9 November 2006, as well as in 2007-2010. From 17 October 2006 to 12 January 2007 he was officially registered as residing at a certain address in St Petersburg. His wife and two children joined him in 2008. His wife obtained Russian citizenship in March 2011. His other two children and his parents stayed in Osh.

On 16 March 2007 the Jalal-Abad regional prosecutor’s office brought criminal proceedings against the applicant on suspicion of embezzlement of State funds. The decision stated that the applicant had been appointed a warehouse supervisor at the South Warehouse of the State Reserves Fund on 30 December 2006 and that while in that post he had misappropriated, during the period from November 2006 to January 2007, goods stored at the warehouse in Jalal-Abad for which he was responsible at the time, had sold them and used the money so received for his personal needs.

On 22 May 2007 an investigator at the Jalal-Abad regional prosecutor’s office charged the applicant in absentia, issued an order for him to be remanded in custody, declared him a wanted person and stayed the investigation until he had been arrested. On 1 October 2010 the investigator rectified the charges against the applicant, following the amendment of the Criminal Code, to embezzlement under Article 171 § 4 of the Code, which is punishable in particular by imprisonment of five to eight years.

On 25 March 2011 the applicant sent an application to the JalalAbad prosecutor’s office, seeking to have the criminal proceedings against him terminated. To demonstrate lack of grounds for suspicion he argued that a government audit carried out in June 2006 had not revealed any violations at his place of work and that he had been living in Russia at the time of the alleged offence, as confirmed, inter alia, by his passport and his residence registration. Decisions to dismiss his application and to stay the criminal proceedings against him until he had been extradited were communicated to his representatives orally.

On 30 August 2010 the applicant, who had been placed on an international wanted list, was arrested in the Leningrad region and placed in a temporary detention facility at the Gatchina district police department.

On 31 August 2010 the Gatchina Town Court allowed the Gatchina district prosecutor’s request for the applicant to be remanded in custody pending a decision on his extradition. The Town Court decision was upheld on appeal by the St Petersburg City Court on 20 October 2010. All subsequent applications by the prosecutor’s office for extension of the applicant’s detention pending the extradition proceedings were allowed, except for an application of 5 July 2011 which was refused by the Town Court on 7 July 2011 (upheld on appeal by the Leningrad Regional Court on 24 August 2011) and the applicant’s release on bail was ordered. The bail was set at 600,000 Russian roubles (RUB). The Town Court held that if the money was not deposited the applicant should remain in custody until the maximum time-limit for detention had been reached, that is until 30 August 2011, and should then immediately be released.

The applicant’s family failed to deposit the sum required and the applicant remained in custody until 30 August 2011, when his release was ordered by a deputy prosecutor of the Leningrad region, subject to an undertaking not to leave his place of residence, appear on summons before the Leningrad regional prosecutor’s office and abide by the legislation of the Russian Federation. The applicant gave the undertaking and was released on 31 August 2011.

On 29 September 2010 a deputy Prosecutor General of Kyrgyzstan lodged a request with a deputy Prosecutor General of the Russian Federation, seeking the applicant’s extradition to Kyrgyzstan for prosecution on charges of embezzlement. The request stated, inter alia, that in accordance with Article 66 of the Minsk Convention, the Kyrgyz Republic Prosecutor General’s Office guaranteed that the applicant would not be extradited to a third State without the Russian Prosecutor General’s consent, that he would not be prosecuted or sentenced for any other crime committed before his extradition, that he was being prosecuted for a general criminal offence which was not of a political nature, and that he was not being discriminated against on any ground, including that of his ethnic origin. After the trial or, if convicted, after serving his sentence, the applicant would be free to leave the territory of Kyrgyzstan.

On an unspecified date the Prosecutor General’s Office of the Russian Federation made enquiries of the Russian Ministry of Foreign Affairs on the issue of extradition to Kyrgyzstan. On 22 November 2010 the Ministry of Foreign Affairs replied as follows:

“... the Ministry of Foreign Affairs has no information which prevents the extradition of the national of Kyrgyzstan M.M. Ergashev to the law-enforcement authorities of the Kyrgyz Republic.

At the same time, when taking the ultimate decision on extradition of nationals of Kyrgyzstan, it is necessary to take into account the difficult internal political situation which has emerged in Kyrgyzstan at the present time, as well as the aggravation of inter-ethnic tension, which predetermines a possibility of biased examination of cases against citizens of this country not belonging to the titular ethnic group.

In particular, the Ministry of Foreign Affairs has information concerning serious breaches in a number of court proceedings against Kyrgyz nationals of Uzbek origin; cases of intimidation of witnesses and assaults on lawyers are not infrequent.”

On 30 December 2010 the deputy Prosecutor General of the Kyrgyz Republic provided additional assurances to the deputy Prosecutor General of the Russian Federation, stating that the request for the applicant’s extradition had no connection with the events in Osh in June 2010 and earlier, that the applicant would not be subjected to torture, violence or other inhuman or degrading treatment or punishment, that he would not be sentenced to death, and that he would be provided with every opportunity to defend himself, including legal aid.

On 3 March 2011 the deputy Prosecutor General of the Russian Federation approved the request of the Prosecutor General’s Office of the Kyrgyz Republic for the applicant’s extradition. The decision noted that the acts of which the applicant was accused were punishable under the Criminal Code of the Russian Federation with a penalty exceeding one year’s imprisonment, that the prosecution was not time-barred, that the applicant was a national of Kyrgyzstan, that he had not acquired Russian nationality, and that his extradition was not in breach of international agreements or domestic law.

The deputy Prosecutor General of the Russian Federation requested the Special Representative of the President of the Russian Federation on international cooperation in the fight against terrorism and transnational organised crime to provide assistance, via the Foreign Affairs Ministry, in ensuring the observance of the applicant’s rights after his transfer to Kyrgyzstan (letter 81/2-1864-10 of 2 March 2011).

On 19 December 2010 the applicant lodged a request with the Federal Migration Service (FMS) for refugee status. He stated that if returned to Kyrgyzstan he, as an ethnic Uzbek, would be in real danger of his life because of the inter-ethnic conflict in the country.

On 7 February 2011 his application was rejected by the FMS for St Petersburg and Leningrad region. The FMS noted, in particular, that according to its records, after his entry to Russia on 11 July 2006 the applicant had gone abroad only once from 29 May to 3 June 2008, to Uzbekistan. There were cancelled stamps in his passport certifying his exits from and entries to Russia, and also stamps which were not authentic, according to an expert opinion of 4 February 2011. Two pages of his passport were missing. According to the FMS, the applicant’s lengthy fouryear stay in Russia without returning to Kyrgyzstan, where his family had been living, had apparently shown that he had been avoiding entering his country because he was wanted by the law-enforcement bodies, and the fact that he had applied for asylum six months after the June 2010 events meant that he had not felt himself to be in any danger. The FMS found that the applicant had come to and stayed in Russia not because he wished to receive asylum but in order to find employment and improve his financial situation. He was not therefore eligible for refugee status.

The FMS reviewed the situation in Kyrgyzstan after the June 2010 events, including the constitutional referendum and the parliamentary elections. It noted reports by Human Rights Watch and The Jamestown Foundation, as well as the UN’s development programmes carried out in cooperation with the Kyrgyz authorities which were aimed, first of all, at building peace and democratic governance, fighting poverty and working with local communities, and were financed by grants which had doubled during the last five years and totalled 21,000,000 US dollars in 2011. It further noted that 2011 had been declared the Year of Inter-Ethnic Concord and Friendship, with various programmes organised by local authorities, and national and international trade fairs. The FMS considered that the situation in Kyrgyzstan had significantly changed, there had been no interethnic incidents and the Government had been undertaking enhanced measures to ensure the security of its citizens and to improve the social, economic and political situation in the country.

The applicant appealed against the decision of the FMS of St Petersburg and Leningrad region to the FMS of the Russian Federation, which upheld the decision on 24 May 2011, noting that the applicant’s fears of persecution on the ground of his ethnic origin had not been justified.

The applicant lodged a court appeal against the Prosecutor General’s extradition order. He submitted that, in view of the unstable political situation in Kyrgyzstan and ethnic unrest between the Kyrgyz majority and the Uzbek minority, the decision in question entailed for him a serious risk that he would be subjected to torture. He referred to statements by the Russian Ministry of Foreign Affairs of 22 November 2010, The Independent International Commission of Inquiry into the events in southern Kyrgyzstan, Human Rights Watch and other sources.

On 9 June 2011 the St Petersburg City Court examined the applicant’s appeal at an open hearing in the presence of the applicant, his lawyer and the prosecutor. The applicant argued, in particular, that Uzbeks were oppressed and discriminated against in Kyrgyzstan and that he might therefore be subjected to torture or other ill-treatment. The City Court noted that the decision for the applicant’s extradition complied with the requirements of Article 56 of the Minsk Convention and the Code of Criminal Procedure of the Russian Federation. The decision had been taken by the appropriate authority. The applicant was a national of Kyrgyzstan and had not obtained Russian nationality. There were no criminal proceedings against him in Russia in connection with the acts imputed to him. There was no court decision about the existence or otherwise of impediments to his extradition. Therefore the City Court did not find any grounds for refusal of his extradition. It examined the assurances of the Prosecutor General’s Office of the Kyrgyz Republic and stated that it had no reasons to doubt that they would be observed. It took into account that, according to the information the FMS for St Petersburg and the Leningrad region had when it made its decision in the applicant’s case, which was upheld by the FMS of the Russian Federation, the social, economic and political situation in Kyrgyz Republic had normalised since the interethnic clashes in June 2010. It also took into account that the applicant was accused of an ordinary crime which had no political or ethnic character, and that it had been committed in 2006-07, long before the inter-ethnic clashes. The applicant had not claimed that he was being persecuted for political reasons, stating that he had moved to Russia to find employment. Therefore, the fears that he might be subjected to ill-treatment or discrimination on the ground of his ethnic origin or other grounds had not been objectively justified.

The City Court further stated that a court appeal against the FMS’s decisions in the applicant’s case to refuse him refugee status could not suspend or block the applicant’s extradition. It noted that while the applicant had arrived in Russia more than three years previously for material gain he had applied for refugee status only after his detention, thereby pursuing the aim of delaying his extradition. It further noted that the applicant’s guilt was beyond its scope of examination. It held that the extradition decision was lawful and dismissed the appeal.

On 7 November 2011 the Supreme Court of the Russian Federation examined the applicant’s appeal against the City Court’s judgment in which he argued, in particular, that if extradited he would run a real risk of torture because he belonged to the Uzbek minority, as confirmed by, inter alia, The Independent International Commission of Inquiry into the events in southern Kyrgyzstan, and that the Kyrgyz Republic’s official assurances would not prevent that risk. Having heard the applicant’s counsel and the prosecutor, the Supreme Court endorsed the lower court’s findings, noting also that the applicant had left Kyrgyzstan for Russia in order to find employment and not because of persecutions on the ground of his ethnic origin, and that the decision to extradite him had been taken in accordance with Article 61 of the Agreement between the Russian Federation and Kyrgyzstan On Legal Aid and Legal Relations in Civil, Family and Criminal Cases of 14 September 1992, and that the request for extradition had complied with Articles 1 and 12 of the European Convention on extradition of 13 December 1957 and Article 58 of the Minsk Convention. The Supreme Court rejected the applicant’s appeal and upheld the lower court’s decision.

On 25 November 2011 the St Petersburg Dzerzhinskiy District Court rejected the applicant’s appeal against the FMS’s decisions. It stated in its judgment that the applicant had submitted at the hearing that he did not fear for the life and health of his children and parents who had stayed in Osh, that he had not been persecuted on account of his ethnic origin, political or religious grounds, though there had always been tensions between Uzbeks and Kyrgyz in everyday life, and he had known about the harassment of Uzbeks in Kyrgyzstan from his friends and brother who had been beaten up during the events in June 2010. The District Court found that it did not follow from the materials before it that the applicant had left his country and did not wish to return there because of some real events menacing him personally. The absence of a real threat was confirmed, in particular, by the fact that his family, which included minor children, living in Osh had never been discriminated against. He had failed to submit any evidence that he or his family had been persecuted on the ground of their ethnic origin, or any evidence for such fears. He had referred in general to the situation in the country, without giving any details.

An appeal against the District Court’s judgment lodged by the applicant’s counsel did not comply with the relevant procedural requirements and on 20 January 2012 the District Court refused the applicant’s request for an extension of the time-limit for lodging a proper appeal. Proceedings in which the applicant challenged that finding are pending.

On 7 April 2010 President Bakiyev was overthrown after popular demonstrations and a Provisional Government headed by Roza Otunbayeva assumed power.

On 10 June 2010 and the days which followed inter-ethnic clashes erupted in the south of the country in Osh and Jalal-Abad, in which ethnic Kyrgyz and ethnic Uzbeks committed violence against each other.

Kyrgyzstan adopted a new Constitution via a 27 June 2010 referendum. According to the Organization for Security and Co-operation in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Limited Referendum Observation Mission Report, the authorities succeeded in creating the necessary conditions for the conduct of a peaceful constitutional referendum despite challenging circumstances.

On 10 October 2010 Kyrgyzstan held parliamentary elections. The OSCE/ODIHR provided a cautiously optimistic assessment of the elections, despite some shortcomings.

On 30 October 2011 Kyrgyzstan held presidential elections. According to the OSCE/ODIHR Election Observation Mission Final Report, “the election was conducted in a peaceful manner, but shortcomings underscored that the integrity of the electoral process should be improved to consolidate democratic practice in line with international commitments. Candidate registration was inclusive, giving voters a wide choice, and the electoral campaign was open and respected fundamental freedoms. These elements, however, were overshadowed by significant irregularities on election day, especially during the counting and tabulation of votes.” The inauguration of the newly-elected President Mr Atambayev took place on 1 December 2011.

The Independent International Commission of Inquiry into the events in southern Kyrgyzstan (“KIC”) was established with a support by the Kyrgyz authorities. After broad consultation with numerous international bodies, including the UN, the OSCE, the EU, the CIS and the office of the UN High Commissioner for Human Rights, the terms of reference were established and endorsed. The KIC was mandated to investigate the facts and circumstances relevant to incidents that took place in southern Kyrgyzstan in June 2010, qualify the violations and crimes under international law, determine responsibilities and make recommendations, particularly on accountability measures, so as to ensure the non-repetition of the violations and to contribute towards peace, stability and reconciliation. The KIC acknowledged the excellent cooperation of the authorities of Kyrgyzstan. It published its report in May 2011. The executive summary of the report states, inter alia, as follows:

“2. ... The events must be viewed in the context of the historical and political background of the region, particularly the relationship between the communities of ethnic Kyrgyz and ethnic Uzbeks. In this regard the KIC notes the underrepresentation of ethnic Uzbeks in public life and the rising force of ethnonationalism in the politics of Kyrgyzstan. The KIC notes further the power vacuum and consequent political rivalries, fragile state institutions and the weak rule of law in southern Kyrgyzstan in the wake of the 7 April overthrow of the Bakiyev government.

The events resulted in significant loss of life and injury, of which the majority of victims were ethnic Uzbeks. In total about 470 people died. It is expected that this figure will grow but not substantially. About 1,900 people received medical assistance at hospitals. Many thousands of people were displaced. About 111,000 people were displaced to Uzbekistan and a further 300,000 were internally displaced. There was also significant property damage, again to a disproportionately high number of ethnic Uzbek owned properties. In total about 2,800 properties were damaged. The KIC notes that ethnic Kyrgyz also suffered very significant losses, in terms of life, health and property. The KIC has found that both communities suffered loss.

In addition to the documented international and domestic criminal acts, the KIC has found that there have been and still are serious violations of international human rights law committed by the State in the aftermath of the events. There is a consistent and reliable body of material which tends to show that acts of torture were committed in detention centres by the authorities of Kyrgyzstan in the aftermath of the June events. Of particular concern to the KIC is that such acts of torture are ongoing and that the response of the authorities to allegations of torture has been grossly inadequate.

Criminal investigations and trials which have resulted from the June events have been marked by breaches of the ICCPR fair trial rights. Large scale sweep operations conducted in Uzbek mahallas on 21 to 23 June and the smaller scale search operations which then followed have involved ill-treatment and arbitrary arrest and detention. There has been selective prosecution targeting the ethnic Uzbek minority. Defence lawyers representing ethnic Uzbek defendants have been subject to improper interference and intimidation.

... The Provisional Government, which had assumed power two months before the events, either failed to recognize or underestimated the deterioration in interethnic relations in southern Kyrgyzstan. ...

As to conflict prevention and reconciliation, the KIC recommends measures on inclusive state building; ... Kyrgyzstan should take a strong public stand against extreme nationalism and ethnic exclusivity. ...

... The government should ensure the conduct of thorough, independent and impartial investigations into crimes or other human rights violations without reference to ethnicity and should consider seeking international assistance to do so. ... The Government should immediately stop all arbitrary arrests, torture in detention and other human rights violations. ...”

In their June 2012 report “Kyrgyzstan: Dereliction of Duty” Amnesty International stated, in particular, as follows:

“Despite the acknowledgment by a number of officials that torture and other illtreatment in detention continues to be a problem and despite repeated efforts, including issuing decrees and instructions, by the former President and the new Prosecutor General to stop the routine use of beatings and other ill-treatment in order to extract confessions, there appears to be little commitment at regional and local levels to effectively and decisively address and prevent these serious human rights violations. ...

While human rights monitors report fewer arbitrary arrests, nevertheless, two years on from the June violence, torture and other ill-treatment, including beatings, by law enforcement officers unfortunately appear to continue to be routine ... There are serious concerns that while investigating crimes police officers have continued to target Uzbeks and Uzbek neighbourhoods, threatening to charge them with serious crimes, such as murder, in relation to the June violence in order to extort money from them. Those who have returned from seasonal work in Russia or Kazakhstan or families who have relatives working outside the country are particularly vulnerable to arbitrary detention, intimidation and extortion since they are assumed to have ready access to money and foreign currency. ...

Impunity for law enforcement officers who have perpetrated torture and other illtreatment has long been a serious problem in Kyrgyzstan, especially at the local and regional levels. Since the June 2010 violence this has become ever more apparent but despite a number of positive initiatives and concrete measures in 2011 by the former President and the current Prosecutor General on the prohibition of torture, regrettably only a handful of prosecutions for torture or other ill-treatment in police custody appear to have taken place. ... Given the admissions by the Prosecutor General and the current and former Presidents that torture and other ill-treatment is widespread the extremely low number of prosecutions of security officers for torture and the absence of any convictions for torture casts doubt on the commitment of the authorities to seriously and effectively redress these crimes and human rights violations.”

In their report ‘Distorted Justice’, published in June 2011, Human Rights Watch noted an impact which the June 2010 events had had on the problem of torture:

“Lawyers and other observers noted that the problem of torture and illtreatment worsened significantly after the June events, and was routine in cases involving ethnic Uzbek suspects detained on charges unrelated to the June 2010 violence. In an interview about the use of torture in Kyrgyzstan in 2010, a human rights defender who has researched police torture in Kyrgyzstan for four years noted:

The June events [exacerbated] the situation regarding torture and completely untied the hands of the police officers and the security service. We even heard about the use of torture by the tax police. ... Many are convinced that if torture is used against, for example, Uzbeks, then that is normal.”

Human Rights Watch World Report 2012: Kyrgyzstan (Events of 2011) contains the following findings concerning the situation in Kyrgyzstan:

“In 2011 Kyrgyzstan continued to grapple with the consequences of the June 2010 violence that erupted between ethnic Kyrgyz and Uzbeks in the country’s south, killing more than 400 people. Four commissions of inquiry were completed and thousands of criminal investigations continued in 2011, with the justice process skewed to scapegoat ethnic Uzbeks for the violence.

Torture and arbitrary detentions in the context of investigations into the June 2010 violence are rampant and go largely unpunished. Ethnic Uzbeks in the south are particularly vulnerable to police torture. Violations of international fair trial standards plagued the administration of justice in the south.

The authorities opened more than 5,000 criminal cases into the June 2010 violence. Although most of those killed were ethnic Uzbek, 83 percent of those facing prosecution for homicide were also ethnic Uzbek.

In 2011 trials in connection with the June 2010 violence continued to be held with violations of international fair trial standards. Defendants, mostly ethnic Uzbeks, are found guilty and sentenced to prison terms ranging from several years to life primarily based on confessions that many allege were coerced under torture.

While local human rights NGOs report that incidents of arbitrary detentions and torture in police custody decreased in 2011 in the south, these abuses remain rampant and unpunished, particularly in the context of investigations into the June 2010 violence. Most judges in such cases dismiss, ignore, or fail to order investigations into torture allegations. In at least nine cases police also arbitrarily detained and tortured ethnic Uzbek men and threatened to charge them in relation to the June 2010 violence if they did not pay large sums.

Human Rights Watch research found at least two ethnic Uzbeks died in 2011 due to injuries sustained when detained in police extortion schemes. Given the routine use of torture by the country’s law enforcement officials, efforts by the prosecutor’s office to investigate allegations of torture were inadequate. ...”

International Crisis Group Asia report no. 222 of 29 March 2012 “Kyrgyzstan: widening ethnic divisions in the south” reads, inter alia, as follows:

“Kyrgyzstan’s government has failed to calm ethnic tensions in the south, which continue to grow since the 2010 violence, largely because of the state’s neglect and southern leaders’ anti-Uzbek policies. Osh, the country’s second city, where more than 420 people died in ethnic clashes in June of that year, remains dominated by its powerful mayor, an ardent Kyrgyz nationalist who has made it clear that he pays little attention to leaders in the capital. While a superficial quiet has settled on the city, neither the Kyrgyz nor Uzbek community feels it can hold. Uzbeks are subject to illegal detentions and abuse by security forces and have been forced out of public life...

The nationalist discourse that emerged after the Osh violence unnerved the interim government that had replaced President Kurmanbek Bakiyev in April 2010. Until the end of its term in late 2011, it was largely ignored, and sometimes openly defied, by Osh Mayor Melis Myrzakmatov, the standard-bearer of an ethnic Kyrgyz-first policy and the most successful radical nationalist leader to emerge after the killings. This did not change when President Almazbek Atambayev, a northerner, took office in December 2011. Senior members of his administration express dismay at tensions in the south but say they have no way of influencing the situation there.

Uzbeks are increasingly withdrawing into themselves. They say they are marginalised by the Kyrgyz majority, forced out of public life and the professions; most Uzbek-language media have been closed; and prominent nationalists often refer to them as a diaspora, emphasising their separate and subordinate status. International organisations report continuing persecution of Uzbeks by a rapaciously corrupt police and prosecutorial system, almost certainly with the southern authorities’ tacit approval.

The flight of many Uzbek business people and the seizure of Uzbekowned businesses have sharply diminished the minority’s once important role in the economy. The sense of physical and social isolation is breeding a quiet, inchoate anger among all segments of the community – not just the youth, who could be expected to respond more viscerally to the situation, but also among the Uzbek elite and middle class. ...

The views of southern Kyrgyz have also hardened since the violence. Many feel that Uzbeks brought disaster on themselves with an ill-advised power grab in June 2010. This version of history has not been proven; it is privately doubted even by some senior Kyrgyz politicians, but hardly ever challenged by them. Myrzakmatov enjoys considerable approval among broad segments of southern Kyrgyz society – including among the younger, better educated and urbanised social groups that might have been expected to take a more liberal and conciliatory position.

Ominously, he re-stated and strengthened his tough anti-Uzbek approach in late 2011 in a book on the June 2010 violence. Depicting Uzbeks as an essentially separatist force that threatens Kyrgyzstan’s survival, he stressed the need for nonKyrgyz ethnic groups to understand their future role would be as subordinates.”

The International Crisis Group states that the police in Kyrgyzstan are currently almost exclusively ethnically Kyrgyz. “The wave of abusive detentions, extortion and torture directed at the Uzbek community since soon after June 2010 is widely referred to simply as ‘impunity’. If police abuse and torture are unexceptional, the extent, duration and the clear target of this campaign has been highly unusual. Most long-time observers feel that senior southern politicians and officials continue to countenance abuses in order to ensure police support. With rare exceptions the victims have all been Uzbek, some as young as fourteen. They range from migrant workers, often thought to have large amounts of cash on their return from Russia or elsewhere, to businessmen.” “The government acknowledges the problem of torture and has taken steps to address it, but these have proven almost completely ineffectual. The prosecutor-general issued three decrees in 2011 aimed at checking and punishing the use of torture and ill treatment of detainees. There have, however, been no successful prosecutions. Three memorandums of understanding between prosecutors and southern human rights organisations have likewise had little effect.”

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, visited Kyrgyzstan from 5 to 13 December 2011 at the invitation of the Government, which provided him with unrestricted access to detention facilities. The purpose of the visit was to assess the situation as regards torture and ill-treatment in the country, including conditions of detention, and to identify measures needed to prevent torture and ill-treatment in the future. The report on that mission was presented at the 19th session of the United Nations Human Rights Council and states, inter alia, as follows:

“9. Kyrgyzstan is a party to the main United Nations human rights treaties prohibiting torture and ill-treatment, including the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. Kyrgyzstan acceded to the Optional Protocol to the Convention against Torture in 2008. The State is also a signatory to the Rome Statute of the International Criminal Court.

... pursuant to Presidential Decree No. 41, various public advisory councils were established within the Ministry of the Interior and Prosecutor General’s office in Bishkek, Osh and Jalal-Abad, entrusted with monitoring places of detention. In addition, public monitoring councils, which comprise representatives from civil society, were created under the Ministry of the Interior, the State Service for the Execution of Punishments and the State Committee of National Security to monitor detention facilities and other closed institutions. Furthermore, a draft law on the police force and the prospect of reforming the Ministry of the Interior are both under discussion. The draft bill on the national centre for the prevention of torture had been finalized and was to be submitted to Parliament for discussion early in 2012. Since May 2011, three memorandums of understanding had been signed by prosecutors and civil society organizations – for Jalal-Abad province, for Osh City and for Osh province – providing for public councils to identify solutions and building confidence in the prosecutorial authorities. The first initiative of the public councils was the installation of closed-circuit cameras in some temporary detention facilities in JalalAbad province.

The Special Rapporteur received numerous accounts and eyewitness testimonies suggesting that torture and ill-treatment had been historically pervasive in the law enforcement sector. This practice has been intensified by the turbulence of the past two years with the ousting of President Bakiev in April 2010, followed by the violence that took place in the South in June 2010. During the violence in June 2010 and its aftermath, reports consistently highlighted the frequency and gravity of arbitrary detention, torture and ill-treatment by law enforcement bodies.

Throughout the mission, testimonies of victims and their lawyers pointed to general patterns of torture and ill-treatment committed by police officers after arrest and during the first hours of informal interrogation. During interviews with victims, the Special Rapporteur heard multiple allegations of torture that shared the same pattern: asphyxiation with plastic bags and gas masks with no flow of oxygen; punches and beatings with truncheons; the application of electric shock and the introduction of foreign objects into the anus, or the threat of rape. ... The Special Rapporteur was told that the use of torture by the criminal investigation police was exacerbated by the heavy reliance on confessions in the judicial system.

The Special Rapporteur has concluded that, in the immediate aftermath of the violence of June 2010, there was a significant increase of continued arbitrary arrests and detentions, incidents of forced confession under the use of torture and illtreatment during arrest and while in detention, denial of access to a lawyer of one’s choosing, denial of independent medical aid, threats and extortion of money in exchange for dropping or mitigating charges. These incidents, usually committed by the operative-investigating officers of the Ministry of the Interior during the first hours of apprehension and interrogation, continued to be widespread throughout 2011.

The Special Rapporteur received reports according to which, in practice, confessions obtained under torture are not expressly excluded as evidence in court. Moreover, the majority of verdicts in criminal cases are mostly based on voluntary confessional statements made during the investigation or at the time of surrender. In addition, the courts encourage this practice by giving undue weight to confessions when evaluating evidence. If a defendant claims during trial that the confession was obtained through torture, the courts either ignore such statements altogether or conduct a superficial inquiry by simply questioning the police officers in court. After the officers deny the use of torture, the judge concludes that the defendant’s allegations are not substantiated and should be treated as an effort to avoid justice.

The Special Rapporteur noted that in contrast to the open recognition of the existence of torture and ill-treatment by the current and former President, the deputy Speaker, the Head of the Parliamentary Committee and the Prosecutor General, he had heard of no “such instructions communicated by the responsible officials of the Ministry of the Interior to condemn torture and ill-treatment or to declare unambiguously that torture and ill-treatment by police officers would not be tolerated”, and that it remains to be seen how the Prosecutor General’s instructions “will be implemented at the city and provincial levels”.

A report of the United Nations High Commissioner for Human Rights, Navanethem Pillay, on technical assistance and cooperation on human rights for Kyrgyzstan covering the period from June 2010 to February 2011, which was examined by the Human Rights Council at its 17th session, stated, in particular, as follows:

“5. Despite the efforts of the Government to address human rights issues, a number of serious concerns persist, such as the increase in reports of discriminatory practices by government bodies towards minorities, and the ongoing use and practice by law enforcement bodies of ill-treatment and torture while detainees are in custody.

Deficiencies in the administration of justice pose a major impediment to the reestablishment of the rule of law. The judicial system must maintain its impartiality irrespective of the ethnicity of victims, lawyers and defendants. ...

Further to the June 2010 violence, the authorities took steps to investigate and bring to justice those suspected of involvement in the events. The Office of the Prosecutor in Osh and Jalal-Abad reportedly initiated investigations into more than 5,000 cases. In cases which have come to trial, most defendants have been ethnic Uzbek. Scores of individuals wanted for involvement in the June 2010 violence reportedly remain at large.

Trials of defendants accused of involvement in the June 2010 violence have failed to uphold basic standards for fair trial, in courts both of first and second instance. Alleged violations of fair trial standards include torture and ill-treatment ...

On 11 January 2011, the National Commission of Inquiry established by President Otunbaeva in July 2010 presented its report. According to the Commission, the violence was instigated by ethnic Uzbek community leaders and supporters of former president Bakiyev. The Commission states that members of the provincial government and the security forces failed to respond promptly and prevent the violence. The Commission also found that members of law enforcement tortured detainees, most of whom were ethnic Uzbeks.

On 13 January 2011, the Ombudsman of Kyrgyzstan presented his report on his investigation into the June events, stating that his office supports the conclusions of the National Commission of Inquiry, in particular that the conflict was initiated by ethnic Uzbek provocateurs. According to the conclusion of the Ombudsman’s investigation, the conflict was due to the socio-economic situation in the southern region that originated in the Soviet time, when ethnic Uzbeks enjoyed better living standards than ethnic Kyrgyz.

There have been concerns about the lack of independence and impartiality of both investigations. At least three members of civil society, who were among members of the National Commission of Inquiry, expressed concerns about the modalities, composition and the terms of reference of the National Commission. Both reports largely reflected views held among some ethnic Kyrgyz politicians and the majority of the public. Debates in Parliament on the findings of the National Commission were characterized by numerous provocative nationalistic statements and biased remarks regarding the role of ethnic Uzbeks in the violence. ...

In the aftermath of the June 2010 violence, OHCHR received numerous reports of arbitrary detention in Osh and Jalal-Abad. In the majority of the cases documented by the Office, the victims were ethnic Uzbek. ... There were numerous reports of extortion by police in such cases of detention. ...

During the period under review, OHCHR documented cases of torture or illtreatment. The frequency and gravity of allegations raised serious concern. While most cases involved various forms of beatings, the Office also documented cases of torture in which victims described being subjected to electro-shock, including to the genitals; suffocation; sustained beatings; and death threats. Torture was reportedly often accompanied by ethnicity-based harassment and humiliation.

Concerns about frequent allegations of torture and ill-treatment were compounded by the failure of the authorities to take steps to investigate such allegations, bring to justice perpetrators and provide victims with redress. During the period under review, the Office of the Prosecutor in Osh did not pursue investigations into allegations of torture, despite the numerous cases in which significant evidence was available and in which complaints had been filed.

... To date, the police, prosecutors and members of the judiciary have not acted upon allegations of torture in the aftermath of the June 2010 violence.

Since the April 2010 unrest and particularly following the June 2010 interethnic violence, there has been growing concern at the rise in discriminatory practices faced by members of minorities at the institutional level. This is increasingly reflected in attitudes within the public at large. In particular, ethnic Uzbeks have faced ongoing discrimination in the aftermath of the June 2010 inter-ethnic violence.

In recent months, concern has increased at the growing inter-ethnic tensions in the country, which are contributing indirectly to the rise in internal migration and emigration. Statements by a few officials in various regions of the country have often fuelled the nationalistic discourse and contributed to feelings of vulnerability within the minority communities.

Reports of cases where ethnic minorities are subjected to the illegal seizure of their land, unlawful takeover of their businesses, or physical or verbal threats, are becoming more commonplace. Due to a pervasive fear among victims of such ethnically motivated acts, there is a general reluctance to file complaints with the law enforcement bodies. To date, no criminal case has been brought by the law enforcement authorities under article 299 of the Criminal Code, which proscribes “incitement to inter-ethnic hatred”.

On administration of justice:

(b) ... In case of retrials related to the June 2010 events, the hearings should not take place in courts in the south of the country in order to ensure impartiality of judges. Judges should maintain their impartiality irrespective of the ethnicity of victims, lawyers and defendants. To ensure such impartiality, provincial rotation mechanisms of judges and other participants in judicial processes should be adopted.

On torture and detention:

(b) The Government, prior to the establishment and commencement of functions of the national preventive mechanism under the Optional Protocol to the Convention against Torture, should guarantee unrestricted access by civil society monitoring groups to all places of deprivation of liberty ...

On minority rights:

(a) Utmost attention should be paid to building trust and confidence among communities throughout the country and to ensure the prevention of hate speech, which could fuel further tensions. The Government, at the highest levels, should emphasize that promotion and protection of minority rights are an integral part of and a main priority for peace and reconciliation and a central pillar of the country’s political, economic and security strategies;

Following the examination of the report the Human Rights Council adopted, in June 2011, a resolution in which it, inter alia, urged “the Government of Kyrgyzstan to ensure that progress is made in improving the human rights situation in the areas of administration of justice, torture and arbitrary detention, the right to adequate housing, the rights of women, minority rights and human rights mechanisms” and “to promote and protect human rights and fundamental freedoms for all, in particular, to address ongoing arbitrary detentions, torture and corruption by law-enforcement and Government officials”.

A report of the United Nations High Commissioner for Human Rights on technical assistance and cooperation on human rights for Kyrgyzstan covering the period from June 2011 to February 2012, which was examined by the Human Rights Council at its 20th session in July 2012, notes that “serious institutional deficiencies have hampered the delivery of justice and undermined the rule of law, and points out that the lack of progress in addressing these matters impacts on reconciliation and peacebuilding efforts between the ethnic communities, as well as between civil society and authorities, with serious risks for the long-term stability of the country. The report further describes the ongoing practice of arbitrary detention and torture and continued discriminatory patterns based on ethnic grounds. In this context, it highlights institutional shortcomings, lack of capacity and, in some instances, lack of political will to take necessary measures.” It notes that ten months after the signature of the memorandums of understanding between prosecutors and human rights organisations in Osh Province, Osh City and Jalal-Abad Province setting out mechanisms for regular dialogue and cooperation on the prevention and prosecution for torture within the framework of public councils, little substantial progress has been made, due in part to the lack of trust on the part of human rights NGOs in the prosecutorial authorities and the overall lack of strategic engagement by all parties, posing challenges to the effective functioning of the public councils. As regards the installation of closed circuit television cameras in the temporary police detention centres in Jalal-Abad, the report notes that while they “can be an additional measure to prevent torture, it is not a panacea for the human rights violations observed in detention centres, given the potential ease with which the system can be bypassed or disabled.” The report also stated as follows on the minorities’ issue:

“69. There is a wide gap between the authorities’ view of inter-ethnic relations and those of ethnic minority communities themselves. Authorities paint a positive picture, while communities raise concerns including: (i) the need to stop any police misconduct, in particular arbitrary arrest, extortion, ill-treatment and torture; ...”

In her opening remarks at a press conference on 10 July 2012 during her visit to Kyrgyzstan, UN High Commissioner for Human Rights, Navanethem Pillay, stated, inter alia, as follows:

“... The most serious problem lies in the failure to implement laws and reforms in line with international standards, as well as to act in accordance with Kyrgyzstan’s new Constitution.

Take torture as an example: under international law there is an absolute prohibition of torture. This is reflected in the Kyrgyz Constitution, Article 22 of which categorically prohibits torture and all other forms of cruel, inhuman and degrading treatment and punishment. The Criminal Code also recognizes torture as a crime. Yet we continue to receive evidence of torture being committed by state authorities, including 68 cases of alleged torture or ill-treatment between August 2010 and February 2012 in the context of criminal investigations into the June 2010 violence in Osh and neighbouring regions. This is believed to be only a fraction of the real total.

I was encouraged to hear from the Minister of Interior that in recent months the process of establishing accountability for police officers is starting to produce results, with internal investigations launched in 286 cases, resulting in 38 officers being subjected to criminal investigation, and 47 others being fired from their jobs. It is important that the full details of such cases become known both as a deterrent to other police officers thinking of carrying out acts such as torture or extortion, and as reassurance to the general public who, by the Ministry of Interior’s own candid admission, have largely lost trust in what should be a key state institution.

I have congratulated Kyrgyzstan on the adoption on 7 June of the Law on National Center for the Prevention of Torture and Other Cruel, Inhuman and Degrading Treatment – a result of four years of concerted efforts by the Ombudsman, the Parliament, the Ministry of Justice, civil society and the international community. I hope that this important law will soon be signed by the President, and that subsequent steps will ensure that the new torture prevention body it creates will be impartial, independent and effective.

Those who order or commit torture should be investigated, arrested and charged. I have urged the President to lead the effort to eradicate this intolerable and illegal practice by making clear public statements stressing there will be zero tolerance for torture from now on. I also note the strong position the Prosecutor-General has taken on preventing torture, issuing three decrees on the subject since taking up office in April 2011. I have recommended that authority over police detention facilities be transferred from the Ministry of Interior to the State Service on Execution of Sentences, and that all detention facilities be opened to independent monitoring.

Discrimination, especially on ethnic, religious and gender grounds, remains a deeply problematic issue with ethnic and national minorities significantly underrepresented in the executive government and bureaucracy, law enforcement bodies and judiciary.

Discrimination is particularly evident in Osh, where around 50 percent of the population is of Uzbek origin, but there is not a single Uzbek judge among the judiciary. I have myself heard the cries for justice from members of the affected communities who have been victimized twice – while the violence was taking place, and in its aftermath.”

This imbalance is reflected in many key national and local institutions including the police ...”

“2. No one shall be subject to torture, violence or other severe or humiliating treatment or punishment.”

“3. Foreign nationals and stateless persons shall enjoy in the Russian Federation the rights and bear the obligations of citizens of the Russian Federation, except for cases envisaged by federal law or international agreements entered into by the Russian Federation.”

“2. In the Russian Federation it shall not be allowed to extradite to other States those people who are persecuted for political convictions, as well as for actions (or inaction) not recognised as a crime in the Russian Federation. The extradition of people accused of a crime, and also the handover of convicts to serve sentences in other States shall be carried out on the basis of federal law or international agreements entered into by the Russian Federation.”

According to the Russian Criminal Code, foreign citizens and individuals with no citizenship residing in Russia who have committed a crime outside its borders can be extradited to a State seeking their extradition with a view to criminal prosecution or execution of a sentence (Article 13 § 2).

The Russian Federation can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle to stand trial or serve a sentence for a crime punishable under Russian legislation and the laws of the requesting State. An extradition on the basis of the reciprocity principle implies that the requesting State assures the Russian authorities that under similar circumstances they would grant a Russian request for extradition (Article 462 §§ 1 and 2).

Extradition can take place where (i) the actions in question are punishable by more than one year’s imprisonment or a more severe sentence; (ii) the requested individual has been sentenced to six months’ imprisonment or a more severe punishment; and (iii) the requesting State guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request, that upon completion of the criminal proceedings and the sentence he or she would be able to leave the territory of the requesting State freely and that he or she would not be expelled or extradited to a third State without the permission of the Russian authorities (Article 462 § 3).

The Russian Prosecutor General or his or her deputy decides on extradition requests (Article 462 § 4). A decision by the Russian Prosecutor General or his or her deputy may be appealed against before a regional court within ten days of receipt of the notification of that decision (Article 463 § 1).

The regional court, sitting in a composition of three judges, confirms or otherwise the lawfulness and well-foundedness of the extradition decision within one month of the receipt of the appeal, in a public hearing at which the prosecutor, the person whose extradition is sought and his or her counsel (if the latter has participated in the earlier proceedings) may participate (Article 463 § 4). The court does not examine issues of the individual’s guilt, and is limited to establishing whether the extradition decision is compatible with Russian laws and treaties (Article 463 § 6). The court decides either to declare the extradition decision unlawful and to quash it, or to dismiss the appeal (Article 463 § 7). The regional court’s decision can be appealed against before the Russian Supreme Court within seven days of its delivery (Article 463 § 9).

The 1993 CIS Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases (“the Minsk Convention”), to which Russia and Kyrgyzstan are parties, provides as follows:

“1. The Contracting Parties shall ... at each other’s request extradite persons who find themselves in their territory, for criminal prosecution or to serve a sentence.

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.”

“1. A person being extradited may not – other than with the consent of the requested Party – be held criminally responsible or punished for any crime committed before the extradition, unless such crime constitutes the reason for such extradition.

Nor may such person be extradited to any third State other than with the consent of the requested Party ...”


The applicant, Ms Lyubov Ivanovna Bordokina, is a Ukrainian national who lives in Molodogvardiysk. The Ukrainian Government (“the Government”) were represented by Mr Y. Zaytsev, their Agent, and Mrs I. Shevchuk, Head of the Office of the Government Agent before the European Court of Human Rights.

In July 1994 the applicant deposited 1,000,000 karbovantsi (around 30 ECU in the Ukrainian transitional currency) with the private commercial bank “Privatbank” (the “Bank”; Комерційний банк “Приватбанк”) for a four-year term at an annual interest rate of 500%. At the end of the contract, the Bank paid the applicant 182 Ukrainian hryvnyas (about 0.70 ECU), referring to the introduction of the new hryvnya currency and a revision of interest rates as allowed by the contract between the parties.

On 30 September 1998 the applicant instituted civil proceedings in the Leninsky District Court of Lugansk (the “District Court”; Ленінський районний суд м. Луганська) seeking higher payment and damages. Subsequently, she amended her claims on one occasion.

On 18 November 1998 the District Court ordered a financial expert assessment, which was received on 16 February 1999.

On 18 March 1999 the District Court held a hearing and dismissed the applicant’s claims, finding that the Bank had acted in compliance with applicable law and the contract between the parties. The judgment became final.

Unsatisfied with the outcome of her litigation, the applicant requested the authorities to re-open the proceedings by way of lodging a supervisory protest.

On 19 April 2000 the Presidium of the Lugansk Regional Court (the “Regional Court;” Луганський обласний суд) quashed the judgment of 18 March 1999 following a protest introduced by its President and remitted the case for a fresh consideration to the District Court.

Between July and December 2000 the District Court held three hearings.

On 14 December 2000 the District Court allowed the applicant’s amended claims, finding that the Bank had breached the contract. The Bank appealed in cassation.

On 22 January 2001 the Regional Court upheld the judgment of 14 December 2000 and it became final. The Bank requested to re-open the proceedings by way of supervisory review.

On 28 February 2001 the Presidium of the Regional Court quashed the rulings of 14 December 2000 and 22 January 2001 following a protest lodged by its President and remitted the case to the District Court for a fresh consideration.

Between May and July 2001 the District Court scheduled three hearings, one of them being adjourned on account of the defendant’s absence.

On 3 July 2001 the District Court dismissed the applicant’s claims. The applicant appealed.

On 3 September 2001 the Regional Court upheld this judgment on appeal. The applicant appealed in cassation.

On 23 April 2003 the Supreme Court dismissed the applicant’s appeal in cassation.


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria

The applicants are Romanian nationals. They are all civil servants employed by the Caraş Severin District Employment Agency.

On 5 May 2008 the applicants filed a petition with their employer, the Caraş Severin District Employment Agency, a State agency, asking to have their entitlement to certain wage-related rights acknowledged. More specifically, relying on section 31(1) (c) and (d) of Law no. 188/1999 on the status of civil servants, they asked for two allowances to be added to their basic salary, namely a grade supplement and a supplement related to their salary step. The applicants quantified each of these supplements at 25% of the basic salary.

The aforesaid allowances were to be paid retroactively, starting from April 2004, but also in the future, until the applicants’ contracts ended.

At the same time, the applicants requested that these entitlements be noted in their employment record books.

On 19 May 2008 their employer dismissed the petition as ill-founded.

On 30 May 2008 the applicants contested that decision before the Caraş Severin County Court. They contended that even though, in accordance with Government Emergency Ordinance no. 92/2004, the application of the provisions granting them the rights in question had been suspended until 31 December 2006, this did not mean that they were not due for payment starting from 1 January 2007, when the suspension had ended, as the suspension of a right was not equivalent to the extinction of that right.

In any event, they considered that the suspension was in breach of Articles 41 and 53 of the Constitution, and that the allowances claimed were therefore to be paid retroactively, from 2004 onwards.

On 10 September 2008 the County Court dismissed the applicants’ claim. The court acknowledged that, according to the provisions of the Labour Code applicable to the case, the employer was obliged to pay its employees all the allowances derived from the law and from the employment contract. Therefore, the applicants, civil servants, were entitled to receive, in addition to their other salary entitlements, the two supplements in question – the grade allowance and the allowance corresponding to the salary step – as provided for by section 31(1) (c) and (d).

The two supplements were first provided for by section 29 of Law no. 161/2003 of 16 April 2003, but without any indication as to the exact amount. In fact, none of the subsequent legal texts on civil servants’ salary rights made any reference to a method or criterion for determining the amount of any of the supplements.

Hence, even though Law no. 188/1999 expressly stated that a civil servant’s salary was also composed of the grade supplement and the salary-step supplement, the determination of these rights was left to the executive, which was entitled to set out rules for the application of the law. Consequently, the court held as follows:

“In the absence of a legal act issued or adopted by the executive in which the amount of the two allowances claimed is defined, the court does not have jurisdiction to determine by itself the amounts, as this would undermine the separation of powers principle by encroaching on the powers of the administrative authorities.

The court therefore holds that in the above-mentioned circumstances, the respondent cannot be ordered to pay the allowances claimed before their amount has been determined.”

The applicants appealed against that judgment to the Timişoara Court of Appeal, reiterating the arguments they had submitted before the first-instance court. In addition, they stated that under Article 38 of the Labour Code the acquired rights of employees could not be made subject to any limitations. Furthermore, they contended that it was a basic legal principle that laws were made in order to produce effects, it being inconceivable that a legal text would have only a superficial value and not be applicable. They asserted that their right to the allowances they had requested was protected by Article 1 of Protocol No. 1 to the Convention, in so far as it was a right provided for by law.

The applicants alleged that the interpretation of the applicable legal provisions given by the court in refusing to allow their claims rendered those texts completely ineffective and thus devoid of any substance.

Moreover, such an interpretation was discriminatory and in breach of Article 14 of the Convention, in so far as there was consistent national case-law granting other claimants (also civil servants) the right to the supplements in question. The discrimination was even more disturbing given that another person, S.S.M., employed by the same institution as them, had obtained the allowances following a decision of 21 March 2008 given by the same first-instance court, the Caraş Severin County Court. That decision had been upheld by the Timişoara Court of Appeal on 2 October 2008, when it became final.

On 21 January 2009 the Timişoara Court of Appeal dismissed the applicants’ appeal.

The court noted that there was no legal justification for claiming the allowances in an amount of 25% of the basic salary, and consequently for allowing such a claim, as the figure in question was not laid down anywhere in the law.

In that connection, in order to be able to determine the exact amount of the allowances in question, additional legislation was needed, either in the form of legal provisions adopted by the legislature designed to regulate the application of section 31, or in the form of instructions issued by the Government in a separate legal text designed to explain how the law should be applied.

The Court of Appeal also referred to the Constitutional Court’s case-law to the effect that:

“The courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.”

Therefore, the court considered that it could not allow the applicants’ claims, in so far as those claims had not been determined by the competent authorities.

Regarding the divergent case-law referred to by the applicants in their arguments, the court held that in the Romanian legal system, legal precedents were not a source of law and therefore could not be taken into consideration.

On the applicability of Article 1 of Protocol No. 1 to the Convention, the court mentioned that the applicants had not proved the existence of a “possession”, or at least of a “legitimate expectation”, since the case-law on the matter was not well-established.

Furthermore, the court held that the Labour Code was not applicable to civil servants, as they were appointed to their posts on the basis of Law no. 188/1999. The appointments were thus made by means of individual administrative acts which did not make any reference to the allowances in question and, in any event, had not been contested by any of the applicants at the time of their appointment.

In conclusion, the applicants’ claims were dismissed as unfounded.

The Public Servants’ Statute entered into force on 7 January 2000, once Law no. 188/1999 had been enacted. On 1 January 2004 section 29 of the Statute was amended to provide that, starting from that date, certain allowances were to be included in the salaries of public servants.

“1. For discharging their activities public servants shall have the right to a salary composed of the following:

(a) the basic salary

(b) seniority allowance

(c) grade allowance

(d) step allowance

Public servants shall be granted bonuses and other salary entitlements, in accordance with the law.

The remuneration of public servants shall take place in accordance with [the criteria] set forth in the law on the implementation of a uniform remuneration scheme for public servants.”

On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content.

The application of these provisions was suspended from 2004 until 2006, first by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no. 76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006.

With effect from 1 January 2010 the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009.

The applicants submitted two other judgments given by the Court of Appeal of Timişoara, in which the claimants’ requests had been granted. In one of the judgments, given on 23 January 2008 by the same panel as the one which sat in the applicants’ case, it was stated, inter alia, as follows:

“It is irrelevant that the legal text did not lay down the exact amount of the salary entitlements in question, as this cannot constitute a well-founded reason for dismissing the claims; such an interpretation would render ineffective the legal provisions concerned, which are part of the positive law, and this would be inconceivable.”

In another judgment submitted by the applicants, the Suceava Court of Appeal held on 5 June 2008 in a similar case that the claimants, employees of the Suceava District Employment Agency, were entitled to the allowances in question, as the corresponding rights were provided for by the law, it being irrelevant whether their amount was determined or not.

The Government contended that, of the fifteen courts of appeal across the country, a number had dismissed similar claims relating to salary entitlements even before 21 September 2009, when the High Court of Cassation and Justice had ruled on an appeal in the interests of the law (see paragraph 15 below). These included the Alba Iulia Court of Appeal, the Galaţi Court of Appeal and the Bacău Courts of Appeal, as well as the courts of appeal in Constanţa, Cluj, Ploieşti and Bucharest. The reasons given for dismissing the claims had been identical, resembling those subsequently given in the ruling on the appeal in the interests of the law.

On 13 May 2009, noting that since 2008 a divergence of case-law had emerged across the country concerning the granting of certain allowances to public servants, the Prosecutor General applied to the High Court of Cassation and Justice in accordance with the provisions of Article 329 of the Romanian Civil Procedure Code, in order to ensure the uniform interpretation and application of the law.

The High Court delivered its judgment on 21 September 2009, confirming the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, while also setting out guidelines for a uniform interpretation of the text, as follows:

“For the uniform interpretation and application of Article 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.”

The High Court further held that the entitlements claimed by the public servants did not constitute a “possession”, as, in the absence of criteria for their calculation, they were only “virtual rights”.

According to Article 329 of the Romanian Civil Code of Procedure, the High Court’s interpretation of the provisions in question is binding on all the domestic courts. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided.

Following the adoption of the above-mentioned judgment, the divergent case-law on the issue ceased and the domestic courts followed the High Court’s guidelines (see also Zelca and Others v. Romania (dec.), no. 65161/10, §15, 6 September 2011).

The report states in its relevant parts that, in order for the principle of legal certainty, essential for maintaining confidence in the judicial system and the rule of law, to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is therefore necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law.

In her preliminary assessment on the independence of the Romanian judiciary following the visit to Romania in May 2011, the Rapporteur stressed that the practice of the domestic courts had been undermined by the absence of a stable legislative framework, resulting in a lack of uniform interpretation and application of the law. The lack of predictability of judicial decisions and the lack of acceptability of judicial decision-making were structural factors that needed to be addressed.

In its relevant parts, the Opinion reads as follows:

While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system.

Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law.

Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision. ....”