Human Rights House Foundation

Poland

Image: Responsibility and Presumption in Chechen Asylum Applications 
Copyright: http://www.wcl.american.edu/humright/center/newsletter/images/refugees.jpg

Responsibility and Presumption in Chechen Asylum Applications

Chechen emigrants continue to leave the Chechen Republic and the Russian Federation, hoping to find protection and better conditions in other European countries and Republic of Poland is the one which receives the majority of those migrants. Moreover, as the "gateway" country that many Chechens pass through when leaving Europe, Republic of Poland has become the European state that is legally and de-facto responsible for many Chechen emigrants. 

Monday, 19 July 2010

The Polish government, thus, bears the responsibility of evaluating the pleas and grievances of thousands of Chechens every year. While the Officer of Foreigners fairly characterizes many current Chechen asylum seekers as economic migrants, who do not face persecution nor degrading or inhuman treatment if returned to the Russian Federation, this should not be the presumption in determining Chechen applications for refugee, supplementary protection, or tolerated stay status. Dozens upon dozens of European Court of Human Rights cases document the many infringements upon life, security, and liberty that Chechen citizens face while living in the Chechen Republic. 

In its most recent judgement on these issues, the Court ruled on 17 June 2010 that the Russian Federation violated no less than four articles in the European Convention on Human Right in the Case of Batayev and Others v. the Russian Federation (Nos. 11354/05 and 32952/06). In this case, Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev, Kharon Musayev and Usman Mavluyev were detained by unidentified Russian state agents in two separate incidents in 2000 in Grozny, the Chechen Republic. The men subsequently disappeared. When family members of the abductees reported the incidents to Russian officials, instead of searching for the culprits, the Russian judicial and security officers were seemingly intent on carrying out ineffective investigations. In such circumstances, the Court ruled that the men must be presumed dead following their unauthorized detention by state agents. The fact that no news or contact with the men has occurred since the men's detention corroborated this finding. 

According to the Court, such state action and inaction constituted violations of Article 2, the right to life; Article 3, the right to be free from torture and inhuman or degrading treatment from the state; Article 5, the right of liberty and security of person; and Article 13, the right to effective remedies in the state when provisions of the Convention have been violated.

As egregious as the violations are, this case is simply more of the same. Case of Batayev and Others v. the Russian Federation is just one among many of a long string of decisions by the European Court of Human Rights regarding abductions and disappearances, essentially extrajudicial torture and killing, by the Russian Federation against Chechen citizens. From 2004 through June 2010, there have already been over 140 judgments on the merits regarding human rights violations in the Chechen Republic. Many of these cases, like this one, involve multiple parties and several separate incidences of state extrajudicial behavior.

Because of the inherent nature of the Court's legal process - the time it takes for cases to exhaust domestic remedies and for the case to be heard and decided by the Court - these cases are often about human rights cases that have occurred at least several years ago. The more recent cases of arbitrary, extrajudicial abductions and other human rights violations have not yet gone through the Court, but  have been documented by human rights organizations such as Human Rights Watch and Memorial. The number of incidents, however, are almost certainly underreported. Many families do not report disappearances for fear of reprisals.

The Russian and Chechen government's reactions to these cases also testify to the continuing lack of protections and arbitrary state violence in the Chechen Republic. To date, the government has not brought any of the culprits - even when their identity is known - in the cases decided by the European Court of Human Rights to justice. 

The level of arbitrary and extrajudicial violence that occurs in the Chechen Republic and the Russian Federation, though unacceptable and disturbing, does not rise to a level that poses a risk to the general populace. The Polish Office of Foreigners should continue to make individualized determinations regarding Chechen applications for refugee status. Nevertheless, Polish decision makers in Chechen asylum applications should also recognize that stories about secret, illegal detention centers, government reprisals, and nighttime abductions may be tall tales in Poland, but continues to be a real and constant fear for many Chechen


*Lin Ting Li - Legal intern for the Strategic Litigation Program of the Helsinki Foundation for Human Rights and candidate for Juris Doctorate at Columbia University School of Law

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