OSMAYEV v. UKRAINE
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
1. The applicant, Mr Adam Aslanbekovich Osmayev, is a Russian national, who was born in 1981. Until his release on 18 November 2014 he had been detained in Odessa. He was represented before the Court by Ms Y.V. Zaikina, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostianova. 3. The Russian Government exercised their right of third-party intervention in accordance with Article 36 § 1 of the Convention and were represented by the Representative of the Russian Federation at the European Court of Human Rights, Mr G. Matyushkin. Their submissions concerned the applicant’s complaint that he would be exposed to risk of ill-treatment in case of extradition to the Russian Federation. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 8 May 2007 the Federal Security Service of the Russian Federation (“the FSB”) instituted criminal proceedings against the applicant and several other ethnic Chechens on suspicion of membership of a terrorist organisation and planning an assassination attempt on Ramzan Kadyrov, the president of the Chechen Republic, in the course of his visit to Moscow. 6. On an unspecified date the applicant left Russia and entered Ukraine in the winter of 2008. 7. On 24 March 2008 the FSB placed the applicant on the international wanted list. 8. On 2 April 2009 the Moscow City Court convicted some of the applicant’s co-defendants of various crimes, including planning an assassination attempt on Mr Kadyrov. 9. On 28 February 2012, following the applicant’s arrest in Ukraine (see paragraph 29 below), the General Prosecutor’s Office of the Russian Federation requested that its Ukrainian counterpart extradite the applicant to Russia on several charges including participation in an illegal armed group and planning an assassination attempt on a public figure. The request contained assurances that the applicant’s defence rights would be respected, that he would not be subjected to treatment contrary to Article 3 of the Convention, and would not be sentenced to the death penalty. 10. Following the applicant’s arrest in Ukraine, the Russian human rights organisation “Union of Solidarity with Political Prisoners” issued a statement recalling that it had previously declared the applicant to be a person persecuted for political reasons because it believed that the criminal case against him for the planning of an assassination attempt on Ramzan Kadyrov was fabricated and politically motivated. 11. On 6 March 2012 the FSB instituted criminal proceedings against the applicant on suspicion of planning an assassination attempt on the Prime Minister of Russia. 12. On 20 March 2012 the General Prosecutor’s Office of the Russian Federation sent its Ukrainian counterpart another request for the applicant’s extradition on charges of planning an assassination attempt on a public figure and several related charges in connection with the criminal proceedings instituted against the applicant on 6 March 2012. The request contained assurances identical to those in the request of 28 February 2012. 13. On 26 April 2012 Ms Nadia Banchik, an American member of Amnesty International, wrote to the President of Ukraine urging him to prevent the applicant’s extradition to Russia in view of the risk of ill-treatment and an unfair trial. Relying in particular on examples from the reports of Amnesty International, she described the alleged serious ill-treatment suffered by a number of Chechens at the hands of Russian law enforcement authorities and Ramzan Kadyrov’s forces. 14. On 11 July 2012 the General Prosecutor’s Office of Ukraine (“the GPO”) decided to extradite the applicant to Russia. 15. On 23 July 2012 the applicant appealed against the extradition decision. He noted, in particular, that if extradited he would be deprived of the right to be tried in Ukraine and compensation for the damage caused to Ukrainian victims of his crimes in Ukraine would be hindered, and that he was being persecuted by Russian authorities for political reasons. He also noted that proceedings concerning his asylum request in Ukraine were pending (see paragraph 22 below) and that he faced the risk of ill-treatment contrary to Article 3 of the Convention, unfair trial and the death penalty in Russia. He referred to Nadia Banchik’s letter and the statement of the Union of Solidarity with Political Prisoners (see paragraphs 10 and 13 above). 16. On 30 July 2012 the applicant sent a declaration renouncing his Russian citizenship to the Federal Migration Service of the Russian Federation. 17. On 3 August 2012 the Odessa Malynovskyy District Court (“the Malynovskyy Court”) examined the applicant’s appeal in the presence of the applicant and his lawyer and upheld the decision. It found, in particular, that in the light of the assurances provided by the Russian authorities and the nature of the accusations against him, the applicant’s allegations concerning the risk of the death penalty, ill-treatment and politically motivated prosecution were unsubstantiated. The court also held that the publications about the occurrence of torture in Russia in general did not prove that the applicant personally would be ill-treated. The court stated that the decision of 8 June 2012 to dismiss the applicant’s request for asylum (see paragraph 24 below) proved that the applicant was not a permanent resident of Ukraine, which would prevent his extradition under domestic law. The court took no decision concerning the applicant’s detention pending extradition. 18. The applicant appealed against the decision of the District Court, referring to essentially the same arguments as before and also stating that he had renounced his Russian citizenship, alleging that he had been ill-treated by the police following his arrest in Ukraine, and that he was suffering from partial amnesia and was unsure of his identity. 19. On 14 August 2012 the Odessa Regional Court of Appeal (“the Court of Appeal”) examined the applicant’s appeal against the decision to extradite him and upheld the extradition. The court referred to the assurances provided by the Russian authorities. 20. On 15 August 2014 the General Prosecutor’s Office of Ukraine revoked its decision of 11 July 2012 and rejected the Russian authorities’ requests for the applicant’s extradition on the ground that if extradited, he would face a risk that his rights guaranteed by Articles 3, 6 and 14 of the Convention would not be secured. 21. In early 2015 a number of media outlets reported that the applicant was serving as leader of a battalion fighting on the side of Ukrainian Government forces in the eastern regions of Ukraine. 22. On 24 April 2012 the applicant lodged an application for political asylum with the State Migration Service of Ukraine (“the Migration Service”), maintaining that he had never been involved in any terrorist activities and that his criminal prosecution in the Russian Federation was political repression in disguise. In particular, he was a member of a prominent family which used to have considerable influence in Chechnya before Ramzan Kadyrov came to power; his father used to chair an oil company in Chechnya and his uncle used to be the Speaker of the Chechen Parliament. Following Ramzan Kadyrov’s rise to power, the family had been driven out of Chechnya. The applicant had publicly shared his dissatisfaction with the policies of Ramzan Kadyrov and the Russian authorities in respect of Chechnya. His political views, in particular his support for a free and independent Chechnya, and his being a personal enemy of Ramzan Kadyrov, were the real reasons for his persecution by the Russian authorities. He stated that numerous instances of torture and killings by Russian law-enforcement bodies and Ramzan Kadyrov’s armed groups indicated that he would be tortured and killed if he were extradited to Russia. 23. In a report prepared following the examination of the applicant’s asylum application, a head of section of the Odessa Regional Department of Refugee Affairs of the Migration Service recommended that the application be refused. He found that the applicant’s submissions concerning threats allegedly made against him in Russia in connection with negative statements about Ramzan Kadyrov were not credible since he had been an ordinary citizen and had not been a member of any political group and that the applicant had been misleading the Ukrainian authorities in order to delay his extradition to Russia. There were also indications of his being involved in terrorist activity, in particular because: he had shown interest in literature associated with the Wahhabi version of Islam; his life partner Ms A.O. had also displayed Wahhabi tendencies; he had acknowledged that he had had links with persons prosecuted for terrorist activities. The report also referred to an internet publication of Rosbalt, a Russian news agency, according to which the applicant’s three co-suspects had been convicted in 2009 for planning an assassination attempt on Ramzan Kadyrov. The report went on to note that there were no indications that the convicted co-suspects had been ill-treated. The report further stated that the Russian authorities had provided assurances that the applicant’s rights would be guaranteed. 24. On 8 June 2012 the Odessa Regional Department of Refugee Affairs refused to initiate asylum proceedings in respect of the applicant, having found that his application was manifestly inadmissible. The Department noted, in particular, that owing to the applicant’s arrival in Ukraine in 2008, the 2012 application lodged after his arrest was time-barred and that in any event his allegations of being a victim of political repression were ill-founded. 25. On 23 July 2012 the applicant challenged the decision of 8 June 2012 before the Odessa District Administrative Court. He argued that he had not missed the five-day time-limit for challenging the decision because the decision had been sent to his place of detention in Ukraine, without an explanation as to the procedure for challenging it. The applicant’s lawyer had only met him on 19 July 2012, and then translated the decision for the applicant and explained the procedure for challenging it. 26. On 7 August 2012 the Odessa District Administrative Court dismissed the applicant’s complaint without considering it on the merits. It held that the applicant had missed the five-day time-limit for challenging the decision of 8 June 2012 since the decision had been served on him on 5 July 2012 and he had had sufficient knowledge of Ukrainian to understand it. On 4 September 2012 the Odessa Administrative Court of Appeal upheld this decision. 27. On 4 January 2012 a private flat in Odessa, Ukraine, caught fire as a result of an explosion. On entering the flat, the firefighters discovered I.P., a Kazakh national, seriously burned, and the dead body of R.M., a Russian national. The police found traces of explosives in the flat and arrested I.P. 28. On 16 January 2012 the Odessa police instituted criminal proceedings against the applicant, I.P. and R.M. (deceased) on suspicion of having intentionally caused property damage and of illegal handling of explosives. On the same day the Odessa Prymorskyy District Court (“the Prymorskyy Court”) authorised the applicant’s arrest. 29. On 4 February 2012 the applicant was arrested in Odessa. During the arrest a passport in the name of S. Dolakov with the applicant’s photograph in it was seized. 30. On 7 February 2012 the Prymorskyy Court ordered that the applicant be placed in pre-trial detention for two months pending a criminal investigation against him for intentional property damage and illegal handling of explosives. 31. On 12 March 2012 the Security Service of Ukraine (“the SBU”) charged the applicant and I.P. with membership of a terrorist group, planning of terrorist acts, illegally handling explosives and intentionally causing property damage. 32. On 3 April 2012 the Prymorskyy Court extended the applicant’s pre-trial detention until 4 June 2012. 33. On 3 May 2012 the Court of Appeal extended the applicant’s detention pending criminal investigation until 4 August 2012. 34. On 18 July 2012 the SBU additionally charged the applicant with having crossed the Ukrainian border using a false identity document, while charges against him were amended from intentionally causing property damage to negligently causing property damage. 35. On 31 July 2012 the Court of Appeal extended the applicant’s detention until 4 October 2012. 36. On 25 August 2012 the applicant’s co-accused, I.P., was extradited to Russia. 37. On 28 September 2012 the Court of Appeal extended the applicant’s detention until 4 November 2012. 38. According to the Government, on 26 October 2012 the Higher Civil and Criminal Court extended the applicant’s detention until 4 February 2013. 39. On 1 November 2012 the investigation was completed and the applicant was given time to study the case file. 40. On 18 November 2014 the Prymorskyy Court convicted the applicant of illegally handling explosives, negligently causing property damage, and forgery. It sentenced him to two years, nine months and fourteen days’ imprisonment. As the length of time spent in pre-trial detention was deducted from this sentence, the applicant was released immediately. 41. Effective from 17 June 2010, a new Chapter 37 governing extradition procedures was added to the Code. 42. The relevant provisions of Chapter 37 of the Code read as follows: “... The General Prosecutor’s Office shall be the central authority concerning extradition of the accused (suspect) where the proceedings [in the foreign State] are at the stage of pre-trial investigations. ...” “The extradition inquiry concerning circumstances capable of preventing the person’s extradition shall be carried out by the central authority or, upon its instructions (request), by the regional prosecutor’s office. ...” “... Extradition arrest shall be applied until a decision on the extradition of the person concerned and his actual surrender (extradition), but shall not last more than eighteen months. Within this period, and not less than once every two months, the judge at the place of the person’s detention shall check, upon the prosecutor’s request, if there are grounds for further detention of the person or for his or her release. ...” “A person’s extradition to a foreign State shall be refused if: ... 5) the person’s extradition is incompatible with Ukraine’s undertakings under its international treaties; 6) there are other circumstances envisaged by an international treaty to which Ukraine is a party. ...” “Having examined the materials of the extradition inquiry, the central authority shall take a decision to extradite the person or to refuse [his or her] extradition to the foreign State. The decision shall be taken by the head of the central authority or his or her deputy. ... If a decision to extradite the person is taken, that person shall be given a copy of the decision. If the decision has not been challenged before a court within seven days, actual transfer of the person to the competent authorities of the foreign State shall be organised.” “A decision to extradite may be appealed against by the person concerned, his or her defence counsel or legal representative to a local court at the place of the person’s detention. ... The appeal shall be examined in a single-judge formation within ten days of the date of its receipt by the court. The hearing shall be held in the presence of the prosecutor, the person concerned, his or her defence counsel or legal representative, if the latter participates in the proceedings. When examining the appeal, the judge shall not consider the question of guilt and shall not review the lawfulness of procedural decisions taken by the competent authorities of the foreign State in the proceedings against the person whose extradition is requested. Following the examination, the judge shall take a reasoned decision: 1) rejecting the appeal; 2) allowing the appeal and quashing the decision to extradite. After the judge’s decision quashing the decision to extradite takes effect, the person concerned shall be immediately released from detention. An appeal against the judge’s decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance or by the person concerned, his or her defence counsel or legal representative, within seven days of the date of delivery of the impugned decision. The lodging of an appeal against the judge’s decision is of suspensive effect.” 43. The relevant provisions of the Code of Criminal Procedure with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010). 44. Under section 5 of the Act, a person seeking to be recognised as a refugee or a person in need of complementary protection in view of a threat to his or her life, security or freedom in the country of origin may lodge an application for asylum with the Migration Service in Ukraine. The application must be lodged within five days of crossing the border, if the person entered Ukraine lawfully, or “without delay” in the case of unlawful entry. 45. Section 8 lays down the procedure for preliminary consideration of applications for asylum, which must be completed within fifteen days. In particular, the Migration Service holds interviews with the applicants, considers the information contained in the applications and relevant documents, and takes a decision on the admissibility of the applications. In taking this decision, it must decide whether “documents for the consideration of the question of granting refugee status or the status of a person in need of complementary protection are to be prepared”. The Migration Service refuses to prepare such documents in respect of applications which are manifestly ill-founded (do not concern the circumstances calling for protection), constitute an abuse of the right of application (the applicant submits false identity information), or are submitted by persons whose previous applications were rejected as unsubstantiated and where the circumstances have not changed. Within three working days written notice of the refusal, indicating the reasons on which it is based and the procedure of appeal, is given to the applicants or their official representatives. An appeal may be lodged with the courts within five days of the notification. 46. The relevant provisions of the Resolution read as follows: “For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves that: ... 2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State; the courts are not empowered to decide on this issue. ...”