Expulsion of criminal suspect to China would expose him to risk of facing the death penalty, in violation of the Convention
JUDGMENT:
A.L. (X.W.) v. Russia 29.10.2015 (no. 44095/14)
SUMMARY:
The case concerned, in particular, the complaint by a man residing in Russia and wanted as a criminal suspect in China that if forcibly returned to China, he would be at risk of being convicted and sentenced to death. The Court considered that, given that the exclusion order against the applicant mentioned explicitly that he would be deported if he did no leave Russia before the stated deadline and that his Russian passport had been seized, he was at imminent risk of deportation to China where he might be sentenced to death. Russia was bound by an obligation, under the Convention, not to expose him to such risk.
PROVISIONS
Article 2
Article 3
PRINCIPAL FACTS
The applicant, Mr A.L. (or X.W.), lives in Elista (Russia). According to his own submissions, he is a
Russian national, A.L., born in 1972. According to the Government, he is a Chinese national, X.W.,
born in 1973.
The applicant was arrested in St Petersburg in March 2014 on suspicion of having murdered a
Chinese policeman in 1996. He had been placed on Interpol’s list of wanted persons as a criminal
suspect following an arrest warrant issued in his respect by the Chinese authorities. A district court
in St Petersburg subsequently ordered his detention pending receipt of an official extradition
request. When the Chinese authorities had failed to submit the request within the relevant timelimit,
the prosecutor ordered the applicant’s release. However, he remained in detention, and on
the day following the order for his release, the district court found him guilty of the administrative
offence of unlawful residence in Russia of a foreign national. The court considered that he was a
Chinese national rather than a Russian national. A few days later, the Federal Migration Service
found that he had obtained his Russian passport in the name of A.L. unlawfully. The judgment
finding him guilty of the administrative offence was quashed on appeal and the district court, to
which the case had been remitted, eventually terminated the proceedings on 30 August 2014.
On 31 August 2014 the applicant was released. His Russian passport, seized upon arrest, was not
returned to him and he was served with a decision by the regional department of the interior declaring that his presence in Russia was undesirable and that he was to leave the country before 3
September. The exclusion order and the decision to seize his passport were eventually upheld on
appeal in February 2015, the courts holding that the applicant could avoid deportation to China by
leaving Russia for another country.
In the meantime, in June 2014, the European Court of Human Rights had granted the applicant’s
request for an interim measure (under Rule 39 of its Rules of Court) and indicated to the Russian
Government that he should not be forcibly removed to China or any other country for the duration
of the proceedings before it.
From 18 April to 29 August 2014, the applicant was held in a detention centre for aliens in St
Petersburg, and from 29 August until his release on 31 August 2014 he was held in an administrative
detention cell in a police station. He maintains that the detention conditions in both facilities were
extremely poor. In particular: during the first few days he was held in a windowless punishment cell
with no access to food, water or toilet facilities; and he was held in solitary confinement and total
isolation for more than four months, receiving only infrequent and short visits by his wife, having no
access to any media or books and no possibility to use his mobile phone. The Russian Government
contest his allegations.
THE DECISION OF THE COURT
Article 2 and 3 – the applicant’s potential removal
The Court found that Russia was bound by an obligation, under Articles 2 and 3, not to extradite or
deport an individual to another State where there existed substantial grounds for believing that he
or she would face a real risk of being subjected to the death penalty there. Russia had not ratified
Protocol No. 6 and Protocol No. 13 to the Convention, which abolished the death penalty. However,
in view of Russia’s undertaking to abolish the death penalty, upon becoming a member of the
Council of Europe – partly fulfilled through a moratorium on that form of punishment – the Court
considered that the finding in its case-law that the death penalty had become an unacceptable form
of punishment applied fully to Russia.
The Russian courts had not made an assessment of the risks of the applicant being subjected to the
death penalty and to inhuman treatment if he were deported to China. The Court was not convinced
by their argument that the exclusion order against him did not automatically entail his deportation
to China and that he could still leave Russia for another country. Russian legislation provided that
foreign nationals in respect of whom an exclusion order had been issued were to be deported if they
failed to leave the country. The exclusion order against the applicant mentioned explicitly that he
would be deported if he did no leave Russia before the stated deadline. Given that his Russian
passport had been seized and there was no evidence that he had any other identity document to
leave Russia and enter a third country, the Court accepted the applicant’s submission that he was
now at imminent risk of deportation to China.
It had moreover not been disputed by the parties that there was a substantial risk that if deported to
China the applicant might face the death penalty following conviction. His deportation would
therefore be in violation of Articles 2 and 3 of the Convention.
In view of these findings, the Court did not consider it necessary to examine the complaints
separately under Article 13.
Article 3 – detention conditions
It had not been disputed by the Russian Government that the applicant had been detained in solitary
confinement, in nearly absolute social isolation, during his entire stay of more than four months in
the detention centre for aliens. The national authorities had not given any justification for this
confinement and there was no evidence in the Government’s submissions to the Court that an
assessment of the necessity of this form of detention had been made. The Court referred to the
findings of the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) in its 2011 report, according to which solitary confinement can have
immediate damaging effects. Moreover, the applicant had been in complete ignorance as to why
and for how long he had been placed in such confinement, which must have increased his distress.
His solitary confinement had therefore amounted to inhuman and degrading treatment, in violation
of Article 3.
The Court found a further violation of Article 3 on account of the conditions of his detention at the
police station. He had been held there for two days, although the facilities had been designed for
detention not exceeding three hours. In particular, the cell did not have a toilet or sink, no bed, chairor table, only a bench, and there was no access to fresh air and daylight.
Just satisfaction (Article 41)
The Court held that Russia was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 2,100 in respect of costs and expenses(echrcaselaw.com editing).
