Garayev v Azerbaijan

Application No. 53688/08

Forum: European Court of Human Rights
INTERIGHTS’ role: Advisor to counsel
Keywords: Liberty and security, torture, extradition, remedies

On 10 June 2010 the European Court of Human Rights handed down judgment in Garayev v Azerbaijan. The case concerned Garayev’s pending extradition to Uzbekistan. He complained that, if extradited, he would face a risk of being tortured by the Uzbek law enforcement authorities, in violation of Article 3 of the European Convention on Human Rights. Under Article 13, he complained that he had had no effective remedy by which to challenge his extradition on the ground of the existence of a risk of torture or ill-treatment in the event of his extradition. He also claimed that his detention pending extradition had been unlawful and that no judicial review had been available in respect of that detention, in breach of the provisions of Articles 5(1)(f) and 4 of the Convention.

Article 3
The Court considered reports of the UN human rights institutions and other documents on the situation of human rights in Uzbekistan, which detailed numerous credible reports of torture, routine beatings and use of force against criminal suspects or prisoners by the Uzbek law-enforcement authorities in order to obtain confessions. Such reports showed that it appears that any criminal suspect held in custody faces a serious risk of being subjected to torture or inhuman or degrading treatment both in order to extract confessions and as punishment for being a criminal. Despite the fact that Garayev is wanted for an offence which is not politically motivated, the Court considered that there are sufficient reasons to fear that a criminal suspect in such a situation would be at serious risk of being subjected to treatment contrary to Article 3 of the Convention. The Court concluded that Garayev’s extradition would violate Article 3.

Article 13
The Court found a violation of Article 13 on the ground that despite the fact that the he had explicitly complained of the risk of torture or ill-treatment and that his allegations in this regard were sufficiently serious, the domestic courts ignored his arguments. Their decisions did not assess such a risk in Uzbekistan and it did not appear that the courts had taken these considerations into account when they examined the question of the applicant’s extradition.

Articles 5(1)(f) and 5(4)
The Court noted that in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to extradition and setting time-limits for such detention, the deprivation of liberty to which Garayev was subjected was not circumscribed by adequate safeguards against arbitrariness. Accordingly there was a violation of Article 5(1)(f). In particular, the Court held that ’Azerbaijani law governing detention of persons with a view to extradition were neither precise nor foreseeable in their application and fell short of the “quality of law” standard required under the Convention’.

Under Article 5(4) the thrust of the applicant’s complaint did not concern the review of the initial decision on his placement in custody but rather his inability to obtain judicial review of his continued detention after a certain lapse of time. The Government had not shown that he had the opportunity to initiate proceedings with that purpose. Thus, as the Government failed to demonstrate that the applicant had had at his disposal any clearly and foreseeably defined procedural framework through which the lawfulness of his continued detention could have been examined by a court, the Court also held that there was therefore a violation of Article 5(4).

The case was supported within the frame work of an NGO project which aims to raise human rights protection in the South Caucasus but supporting domestic lawyers in arguing cases successfully before the European Court. The project is a partnership between Azerbaijani NGO the Legal Education Society, the Netherlands Helsinki Committee and INTERIGHTS. This is the second judgment under the project - to read about the first, Mikayil Mammadov v Azerbaijan, click here.

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