A.Y. v. SLOVAKIA
Inadmissible
Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
1. The applicant is a Russian national who was born in 1978 and is currently detained in Banská Bystrica. The President decided of his own motion to grant the applicant anonymity (Rule 47 § 3). He is represented before the Court by Kolíková & Partners s.r.o., a law firm with its registered office in Bratislava. 2. The Government of the Slovak Republic (“the Government”) are represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is of Ingush ethnic origin. 5. In March 2008 he left Russia for Ukraine, Slovakia, the Czech Republic and, ultimately, Germany, where he arrived in April 2008. 6. The applicant was subsequently returned to the Czech Republic and then to Slovakia, where he applied for asylum on 13 May 2008 under a different identity. 7. While the asylum proceedings in Slovakia were pending he left for Switzerland, where he remained, unsuccessfully seeking asylum, from November 2008 to March 2009. 8. The applicant’s asylum request in Slovakia was dismissed on 1 August 2008 and then again on 12 May 2010, after the first decision had been quashed on administrative appeal. The applicant’s subsequent administrative-law appeal was declared inadmissible as belated at two levels of jurisdiction. The dismissal of his asylum request thus became final and binding on 18 November 2010. 9. On an unspecified date in 2010 the applicant left Slovakia for Belgium, where he unsuccessfully applied for asylum in November 2010 and was ultimately returned to Slovakia on 9 December 2010. 10. After this the applicant applied for asylum in Slovakia and the Russian Federation applied for his extradition in order for him to be tried on charges related to acts of terrorism allegedly committed by the applicant with others on the territory of North Ossetia. This resulted in two sets of proceedings, which ran in parallel and are described below in turn. 11. On his return to Slovakia (see paragraph 9 above), on 9 December 2010, the applicant claimed asylum again, this time under his true identity. 12. The claim was examined at the first administrative level by the Migration Office of the Ministry of the Interior, which dismissed it on 6 September 2011, 28 June 2012 and 28 November 2013. However, all these decisions were quashed by administrative courts following administrative-law appeals by the applicant. 13. The last-mentioned decision was quashed by the Košice Regional Court on 14 April 2014 and the matter was remitted to the Migration Office for reconsideration. The principal ground for this decision was that the Migration Office had failed to follow binding instructions issued by the court as part of its previous judgments quashing the Migration Office’s decisions, namely to examine properly: (i) the applicant’s allegations that he was suffering from amnesia due to torture at the hands of Russian law-enforcement officers and resultant concussion; (ii) the applicant’s allegation that, in view of his Ingush origin and the political situation in North Ossetia where he was wanted, he would be in danger if extradited there, while these allegations were to be examined in the light of existing reports on the police and justice situation in North Ossetia; (iii) the existing documentation concerning the situation of the individuals whose depositions had provided the basis for the charges against the applicant (see paragraphs 34 et seq. below); (iv) the validity of the guarantees given by the Office of the Prosecutor General of the Russian Federation (“the OPGRF”) to the Slovakian authorities as regards the applicant’s treatment in the event of his extradition to Russia (in particular those specified in a letter of 2 February 2011); and (v) reports by non-governmental organisations concerning the applicant’s individual case and the situation in the requesting country in general. 14. On 5 May 2015 the Migration Office dismissed the applicant’s second asylum request for the fourth time and decided not to grant him any subsidiary protection. It observed that at various stages of the proceedings the applicant had given three different time references (August 2005, May 2006 and May 2007) to his allegation that he had been arrested and mistreated by the police in Ingushetia, that there had been inconsistencies as to the length of his ensuing hospitalisation, and that there were further incongruities between the time and scope of the offences imputed to him in the official extradition documentation and those referred to by the applicant himself. Moreover, the applicant had never before relied on any of the statutory grounds for granting asylum, and his present allegations of persecution on political, religious and ethnic grounds were entirely novel, while his prosecution in the requesting state had no political or ideological connotations. The applicant’s account of the facts was therefore found to be untrustworthy. The Migration Office observed that the available documents confirmed that the applicant had been hospitalised in a traumatology department from 12 May to 14 June 2006 with a number of injuries. There was however no evidence showing that his injuries were in any way attributable to the State. His present digestive problems could not be linked to those injuries, because the applicant had been suffering from them even before his alleged mistreatment. As to his alleged amnesia, by which he sought to explain the incongruities in his factual submissions, the Migration Office considered it improbable, because his recollection of other facts was clear and precise. Nevertheless, the Migration Office had obtained expert evidence concluding that the concussion he had sustained in 2006 could neither have produced amnesia, nor could it have had any permanent effects on his health. Furthermore, the Migration Office observed that the requesting State, through the OPGRF, had provided assurances as to the applicant’s treatment in the event of his extradition on 2 February 2011, and that these guarantees had been confirmed and amended on 12 October 2012 and 23 January 2013. According to these guarantees, the applicant would have at his disposal all existing legal means of asserting his rights, including the assistance of a lawyer. He would not be exposed to torture or any other form of illtreatment, and the death penalty would not be imposed on him. His prosecution was not motivated politically, racially, religiously or ethnically. He would not be prosecuted for any other offences than those for which his extradition was sought, and he would not be extradited further to another State without Slovakia’s consent. Slovakian diplomatic representatives would also be free to monitor compliance with the guarantees given. In its assessment of these guarantees the Migration Office took into account that they had been provided by the OPGRF and that there was no indication that they would not be effective in North Ossetia. Once the applicant’s criminal proceedings were completed and any sentence served, he would be free to settle in any other place, not necessarily North Ossetia. There was no precedent for the Russian Federation not to comply with the diplomatic guarantees given to Slovakia in a similar context. The Migration Office pointed out that the Russian Federation did not have a record of systematic human rights violations, that the guarantees were clear, specific and individualised, that they had also been confirmed by the requesting State as an intervening third party in the proceedings before the Court (see paragraph 47 below), that their observance was subject to diplomatic monitoring, and that their validity had been recognised by the Supreme Court in the extradition proceedings (see paragraph 23 below). As to the various reports concerning the situation in Russia, the Migration Office considered them general in nature and in the circumstances not capable of prevailing over the specific and individual guarantees provided by the OPGRF. Concerning the available material on the applicant’s co-accused, which included their pre-trial depositions, the Migration Office found that it was general, contained no more than allegations, was flawed by inconsistencies, and did not constitute proof of the allegations that they had been mistreated. The applicant was mentioned only once, in one of the pre-trial depositions, and this mention did not implicate him in any way. Moreover, when the applicant’s co-accused changed their versions before the court, their submissions were properly examined in adversarial proceedings. Therefore, this material did not represent a probability that, in the event of his extradition, the applicant would himself be mistreated or that he would be denied a fair trial in the proceedings against him. In sum, there was no trustworthy indication of the existence of any grounds for granting the applicant asylum. Moreover, with reference to his state of health as established in a report from a prison hospital of 15 October 2013, the Migration Office found no humanitarian reasons linked to the applicant’s health or otherwise for providing him with subsidiary protection. 15. The applicant challenged the decision of 5 May 2015 by way of an administrative-law appeal, arguing in principle that the Migration Office had yet again completely ignored the binding instructions of the administrative court and had simply reaffirmed its previous line of decisions with all the errors therein. That appeal is still pending before the Košice Regional Court. 16. On 9 July 2010 a judge of the Lenin District Court of Vladikavkaz (Republic of North Ossetia-Alania) issued a warrant for the applicant’s arrest on the charges of membership of an existing armed illegal group and of perpetration of assaults organised by it, illegal possession of firearms and explosives, terrorist acts, homicide of two or more persons, and other offences committed in the Republic of North Ossetia-Alania between 25 December 2005 and 21 July 2006. 17. On 20 and 21 January 2011 respectively the applicant was arrested and placed in preliminary detention in Slovakia. 18. On 2 February 2011 the Russian Federation asked for the applicant’s extradition. 19. On 1 March 2011 the Trnava Regional Court remanded the applicant in custody pending his extradition to Russia. 20. On 27 March and 12 June 2012 respectively the Regional Court and, following the applicant’s interlocutory appeal, the Supreme Court, ruled that the applicant’s extradition was permissible. The courts found that none of the statutory grounds preventing extradition had been given and, in particular, that the applicant’s extradition was not precluded by his asylum claim of 9 December 2010 (see paragraph 11 above) as this was a repeated claim. In reaching that conclusion, they ascribed significant importance to the guarantees provided by the OPGRF as regards the applicant’s treatment in the event of his extradition by the requesting State. In addition, the courts took into account that the requesting State was a member State of the Council of Europe and a High Contracting Party to the Convention. Moreover, they referred to the case-law of the Court, including its decision of 14 September 2010 in the cases of Chentiev v. Slovakia and Ibragimov v. Slovakia (nos. 21022/08 and 51946/08). In so far as the applicant had argued that the case against him in Russia was concocted and based on evidence obtained by torture, these allegations were to be examined in the proceedings on the merits of his charges in Russia, the Slovakian authorities being by no means equipped to assess them, not least as they did not even have the relevant case files at their disposal. Lastly, the courts observed that, in so far as the applicant’s argument was based on generally worded reports by non-governmental organisations, these reports were outweighed by the individualised and specific guarantees of the requesting State, and there were no obstacles to the nongovernmental organisations’ monitoring the fairness of the applicant’s proceedings in Russia. 21. On 23 August 2012 the Constitutional Court acceded to the applicant’s request of 18 June 2012 by indicating an interim measure suspending the Supreme Court’s decision of 12 June 2012. At the same time, it declared admissible the applicant’s constitutional complaint that that decision was in violation of his rights under Article 3 of the Convention. 22. On 2 October 2013 the Constitutional Court found that the Supreme Court’s decision of 12 June 2012 was in violation of the applicant’s Article 3 rights, quashed it, remitted the case to the Supreme Court for a new examination of the applicant’s interlocutory appeal against the decision of 27 March 2012, and awarded him costs. It found that the Supreme Court’s assessment of the case was formalistic, superficial, and inadequate, in particular as regards (i) the available reports on the general situation with respect to human rights in Russia and especially in the North Caucasus region, (ii) the applicant’s allegations that he and his co-accused had been ill-treated by the police and that his charges were based on evidence obtained by the ill-treatment of his co-accused, and (iii) the validity of the diplomatic guarantees of the requesting State in the light of the Court’s case-law. 23. On 10 July 2014 the Supreme Court ruled again on the applicant’s interlocutory appeal against the decision of the Regional Court 27 March 2012, as instructed by the Constitutional Court in its judgment of 2 October 2013. In its decision the Supreme Court again dismissed the interlocutory appeal. It did so having observed that the offences of which the applicant stood accused had taken place more than eight years ago, that the two consecutive asylum proceedings had together taken more than six years and were still not completed, that the applicant had been detained pending extradition for three and a half years, and that the maximum duration of such detention was not limited by statute. It held that the length of the asylum proceedings was unreasonable and that in the circumstances it was inappropriate for the Supreme Court to await the ultimate resolution of the asylum proceedings. The Supreme Court summarised the requesting State’s guarantees (see paragraph 14 above) and concluded that they were sufficiently specific, individualised and reliable. As there had not been any specific instance of extradition from Slovakia to Russia, there was no concrete experience of or practice in monitoring compliance with guarantees given, nor was there any instance of failure to respect the guarantees. The general reports on human rights situation in Russia were to be seen in the light of the applicant’s specific circumstances. Moreover, the Supreme Court referred to reports on the 2011 and 2013 visits of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) to Russia and the measures taken by the Russian authorities in response to the CPT’s findings. In addition, the Supreme Court again referred to the Court’s assessment of the guarantees provided by the Russian Federation in Chentiev and Ibragimov (both cited above) and other cases. Lastly, it considered that it was not the task of the courts in extradition proceedings to take a stance as regards the lawfulness of the prosecution for the purposes of which a person was to be extradited. 24. There was no appeal available against the Supreme Court’s decision of 10 July 2014 and, accordingly, the ruling that the applicant’s extradition was permissible became final and binding on that day. 25. The applicant subsequently contested the Supreme Court’s decision by way of a constitutional complaint, which the Constitutional Court declared inadmissible without examining its merits on 24 November 2014, on the ground that it fell manifestly short of the applicable formal requirements. 26. The final decision on the applicant’s extradition now lies with the Minister of Justice, who has discretion to allow or disallow extradition subject to various considerations under Article 510 § 2 of the Code of Criminal Procedure, including specifically those under Article 3 and 6 of the Convention. 27. The request of the Russian Federation of 2 February 2011 for the applicant’s extradition (see paragraph 18 above) was accompanied by guarantees from the OPGRF as regards the treatment to be accorded to the applicant in the event of his extradition. 28. In a letter of 12 October 2012 from the Representative of the Russian Federation before the Court to the Ministry of Justice of the Slovak Republic, the guarantees in question were confirmed and summarised as follows: the applicant would enjoy all the fair trial guarantees which existed in international law, would only be tried for the crimes for which he had been extradited by Slovakia, would not be subjected to torture or inhuman or degrading treatment or punishment, would be free to leave the Russian Federation on the completion of his proceedings and after serving any sentence, and would not be extradited to a third country without Slovakia’s consent. 29. In a letter of 3 October 2014 the OPGRF responded to Slovakia’s request for an amendment of the guarantees in question by pledging that, in the event of his extradition, the embassy of Slovakia in Moscow would be informed of the place of his detention and officers of the embassy would be allowed to visit him and speak to him without the presence of a third person. 30. In a letter of 20 February 2015, in reply to a further request by Slovakia, the OPGRF confirmed the guarantees previously given. 31. The applicant claims that in September 2005 he was arrested and interrogated by police in Nzran (Republic of Ingushetia) on suspicion of involvement in terrorist activities. As he refused to confess, he was beaten and otherwise tortured for four days. He was subsequently provided with a lawyer, and it took a further six days until he was released and then immediately admitted to hospital, where he spent a month with concussion and multiple other traumas. 32. Once the applicant had learned of the arrests of his acquaintances on terrorist charges (see below), he went into hiding in Ingushetia, Chechnya and elsewhere. 33. His home was subsequently searched and his relatives interrogated as to his whereabouts. These included an uncle whose property was plundered and who was beaten during his interrogation before being released on the same day. 34. The applicant submits that in July 2006 three acquaintances of his, Messrs Rustam Yunusovich Tsurov, Alikhan Magomedovich Ozdoyev, and Umar Bagaudinovich Khadziyev, were arrested on charges of terrorist acts in North Ossetia; that they were taken to a police station in Vladikavkaz where they were interrogated, beaten and tortured into confessions; and that one of them had given the applicant’s name. 35. The case-file contains documentation concerning these individuals, including expert reports on injuries suffered by U. Khadziyev in the night of 21 to 22 July 2006 and on the mental condition of A. Ozdoyev; what appears to be parts of transcripts of undated court hearings of a witness I.S. Kostolev, an accused R. Tsurov, Mr Tsurov’s lawyer, U. Khadziyev, and Mr Tsurov’s mother; and a statement issued by the mother of U. Khadziyev. This documentation contains allegations of ill-treatment and coercion with regard to Messrs Tsurov, Ozdoyev, Khadziyev and Kostolev. In so far as the applicant is concerned, in one of the transcribed submissions, Mr Tsurov stated that he had never seen A. Ozdoyev and the applicant together, admitted having seen the applicant once, but submitted that he had had no personal or telephone contact with him. In addition, in her statement concerning principally the convictions of her son and his associates, which according to her was based solely on self-incriminating evidence extracted from them by torture, the mother of U. Khadziyev stated that the convicts had been coerced into implicating other people, including the applicant. 36. Messrs Tsurov, Ozdoyev and Khadziyev introduced an application of their own under Article 34 of the Convention against the Russian Federation (no. 30444/08). It has been communicated to the Government of the Russian Federation for observations and is still pending. 37. Finally, in addition to the material referred to in the subsequent paragraph, the applicant relied on a number of international documents including from Amnesty International, the United Nations Committee against Torture, Human Rights Watch, a Special Rapporteur of the Parliamentary Assembly of the Council of Europe, the Commissioner for Human Rights of the Council of Europe, the United States Department of State, the United Kingdom Foreign and Commonwealth Office, Freedom House, the United Nations Special Rapporteur on the independence of judges and lawyers and the United Nations Special Rapporteur on the independence of judges and lawyers originating from or pertaining to the period between the years 2006 and 2013 and the year 2014. 38. A number of relevant international instruments and reports concerning the situation in Russia are summarised, for example, in the Court’s judgments in the cases of M.G. v. Bulgaria (no. 59297/12, §§ 39-58, 25 March 2014), and Chankayev v. Azerbaijan (no. 56688/12, §§ 44-52, 14 November 2013, with further references).