IBRAGIMOV v. SLOVAKIA
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Ali Nurdinovich Ibragimov, is a Russian national of Chechen ethnic origin, who was born in 1977 and is presently detained in Košice (Slovakia). He was represented before the Court by Mr I. Ezheyev of the Goodwill Without Borders foundation and Ms H. Demeterová of the nongovernmental organisation Help a Man, who were succeeded by Ms I. Rajtáková, a lawyer practising in Košice. 2. The Government of the Slovak Republic (“the respondent Government”) were represented by their Agent, Ms M. Pirošíková. 3. The present case is a sequel to application no. 51946/08, which had been submitted by the same applicant. The latter application was examined by the Court jointly with application no. 21022/08, which had been submitted by applicant Mr Anzor Chadidovich Chentiev. 4. The Court’s decision on the admissibility of applications nos. 21022/08 and 51946/08 is referred to below in paragraphs 17 and 18. 5. The facts of the case, as submitted by the parties and established by the Court in the context of applications nos. 21022/08 and 51946/08, may be summarised as follows. 6. The applicant was arrested by Slovakian border police on 18 January 2006, having no valid travel document. 7. On 15 February 2006 he applied for asylum in Slovakia. His request was ultimately dismissed, the final decision being given by the Supreme Court on 26 March 2008 and becoming final on 12 May 2008. 8. On 20 April 2006 the Office of the Prosecutor General of the Russian Federation (“OPGRF”) applied for the applicant’s extradition. The request was based on the fact that the applicant had been accused of several offences, namely banditry with aggravating circumstances and attempt on the life of officials of a law-enforcement agency. He was suspected of having participated, as a member of an organised group, in the killing of two agents of the Ministry of the Interior in Grozny in June 2001. 9. The above letter and another letter from the OPGRF dated 19 September 2006 indicated that the applicant would not be tried by the Special Court, would enjoy the guarantees of a fair trial including the assistance of counsel and that he would not be subjected to treatment contrary to Article 3 of the Convention. As to the risk of the death penalty, the letters indicated that there was a moratorium on the death penalty in Russia, that the applicant would not face the death penalty if extradited and that, should the applicant be sentenced to death, the sentence would not be carried out. Reference was made to the fact that the Russian Federation had signed Protocol No. 6 to the Convention and that under Articles 18 and 26 of the Vienna Convention on the Law of Treaties of 1969 it had an obligation not to use the death penalty. 10. The applicant was placed in preliminary detention with effect from 28 April 2006. On 23 May 2006 the Košice Regional Court remanded him in custody pending extradition. 11. On 3 September 2008 the Regional Court found the applicant’s extradition to Russia inadmissible, but the Public Prosecution Service challenged that decision before the Supreme Court. 12. On 29 October 2008 the Supreme Court overturned the contested decision and held that the applicant’s extradition was admissible. It established that the applicant had been involved, as a member of an organised group, in the killing of two Russian servicemen in Grozny in 2001. That killing had taken place after the military conflict had ended and it was not therefore an exclusively political or military action within the meaning of the relevant provision of the Slovakian Code of Criminal Procedure, which prevented the extradition of foreigners in such cases. The Supreme Court further noted that Russia was a member State of the Council of Europe and that respect for human rights was permanently monitored. 13. Finally, the Supreme Court considered sufficient the guarantees offered by the OPGRF, which stated that the applicant would not face the death penalty and that such punishment was in any event not carried out in Russia, that he would not be tried by a Special Court as well as the undertaking that Articles 3 and 6 of the Convention would be respected in his case. 14. On 3 December 2008 the applicant lodged a complaint with the Constitutional Court. He relied on Article 3 of the Convention and Article 1 of Protocol No. 6 and referred to various reports on the situation in prisons in the Russian Federation. In particular, he invoked reports on treatment to which persons of Chechen origin suspected of fighting against Russian authorities were subjected. He also invoked the fact that the death penalty had not been formally abolished in Russia. 15. On 17 December 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It relied on the reasoning of the Supreme Court which it considered relevant and sufficient from the point of view of protecting the applicant’s rights under the Convention and the Constitution. 16. In a letter of 12 October 2009 addressed to the Slovakian authorities the OPGRF confirmed the guarantees previously given with regard to the applicant, including respect for his physical and psychological integrity. The letter indicated that, if he was convicted and given a prison sentence, the applicant would serve his sentence in a federal prison, where the Convention and the European Standard Minimum Rules for the Treatment of Prisoners are taken into account. The Embassy of Slovakia to Russia would be informed of the place of the applicant’s detention and Slovakian diplomatic representatives would be able to visit the applicant and speak to him without the presence of third persons. The applicant would be provided with sufficient medical care. It was guaranteed that capital punishment would not be applied in respect of the applicant. Finally, the OPGRF guaranteed that the applicant would not be prosecuted for his political views or because of his race, religion or nationality. 17. In applications nos. 21022/08 and 51946/08 the applicants Messrs Chentiev and Ibragimov complained, against a similar background, that their extradition to the Russian Federation would amount to a breach of their rights under Articles 3 and 6 of the Convention and Article 1 of Protocol No. 6. 18. On 14 September 2010 a Chamber of the Fourth Section of the Court decided to join applications nos. 21022/08 and 51946/08 and to declare them inadmissible. In view of the documents before it, it found nothing which could reasonably have given the Slovakian authorities grounds to doubt the credibility of the guarantees provided by the OPGRF during the decision-making process. Thus, the Court accepted the conclusion reached by the domestic authorities, namely that the facts of the case did not disclose substantial grounds for believing that the applicants Messrs Chentiev and Ibragimov, if extradited to Russia, faced a real and personal risk of torture or of inhuman or degrading treatment or punishment within the meaning of Article 3 of the Convention. 19. In view of additional information submitted by the newly appointed representatives of the applicants Mr Ibragimov and Mr Chentiev on 15 November 2010, the President of the Fourth Section decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be extradited to Russia in the context of the present application until 23 November 2010. On the last-mentioned date a Chamber of the Fourth Section extended the interim measure by indicating to the respondent Government that the applicants should not be extradited until further notice. It was considered appropriate that they should have the possibility of having their cases reviewed at domestic level with the benefit of the new material, and that they should not be extradited pending such review. 20. The new application of Messrs Ibragimov and Chentiev was registered under no. 65916/10 and the case was later transferred to the Third Section of the Court, following the re-composition of the Court’s sections on 1 February 2011. 21. On 21 February 2012 a part of application no. 65916/10 was declared inadmissible and its remainder was notified to the respondent Government. 22. On 18 March 2014 the interim measure of November 2010 (see paragraph 19 above) was lifted in so far as it concerned Mr Chentiev. Subsequently, the remainder of application no. 65916/10 concerning him was reregistered under no. 27145/14, and it was declared inadmissible on 15 April 2014. 23. On 6 December 2010 the applicant Mr Ibragimov filed a fresh asylum claim in Slovakia. He referred to the suffering which he had had to endure during the war in Chechnya and his state of health, and indicated that his relatives were being threatened. The applicant’s arguments included those on which he relies in the context of the present application (see below). 24. The Migration Office discontinued the proceedings on that claim on 4 February 2011, finding that the applicant had submitted no relevant new information in relation to that already examined before. He then filed an administrative appeal to the Ministry of the Interior. 25. On 31 March 2011 the Minister of the Interior dismissed the applicant’s administrative appeal and upheld the decision of the Migration Office. The Minister’s decision stated that there had been no substantive change in the applicant’s situation which would justify departing from the previous decision on his earlier asylum claim. 26. On 31 May 2011 the applicant challenged the Minister’s decision by way of an administrative-law action, arguing that the refusal of his asylum claim had been contrary to the law and that the administrative authorities had failed duly to take into account additional information and documents on which he had relied in his renewed claim. 27. On 10 May 2012 the Bratislava Regional Court dismissed the action and its judgment was upheld by the Supreme Court on 1 August 2012 following the applicant’s appeal. However, the latter judgment was quashed by the Constitutional Court on 29 October 2013, following the applicant’s constitutional complaint. 28. After the quashing by the Constitutional Court of the Supreme Court’s judgment of 1 August 2012, it became incumbent on the latter to determine anew the applicant’s appeal against the judgment of 10 May 2012, which it did, in a judgment of 12 February 2014, by quashing it as well as the ministerial decision of 31 March 2011. 29. In turn, it then became incumbent on the Ministry to determine anew the applicant’s appeal against the decision of 4 February 2011 discontinuing the proceedings on his new asylum claim, which it did on 14 August 2014, by quashing that decision and remitting the matter to the Migration Office. 30. The reasons behind the Constitutional Court’s judgment of 29 October 2013, as reflected in the subsequent quashing judgment of the Supreme Court of 12 February 2014 and the quashing decision of the Ministry of 14 August 2014, were that the authorities had failed to respond adequately to the new information and arguments submitted by the applicant, as a result of which their decisions lacked proper reasoning and manifested signs of arbitrariness, and this was contrary to the applicant’s right to a fair hearing under Article 6 § 1 of the Convention. 31. The applicant’s new asylum claim is now pending at the administrative level. 32. Meanwhile, on 22 May 2012, the OPGRF had confirmed in a letter to the Slovakian authorities the validity of all guarantees previously offered. In particular, they submitted that, in the event of extradition, the applicant would not be submitted to treatment contrary to Article 3 of the Convention and would benefit from a fair trial, and the OPGRF would directly supervise the observance of all such guarantees. 33. The applicant has been suffering from stomach ulcers for fifteen years and has had psychological problems. While in prison in Slovakia, he was kept in solitary confinement for significant periods. In the course of 2011, in reply to letters from the applicant’s representatives, the prison administration rebutted allegations that he had not been receiving appropriate medical treatment. 34. The applicant had a fight on 9 June 2010 with another detainee in the course of which the latter suffered physical injury. In a different context, on 31 August 2010, a prison officer accused the applicant of having attacked him. Criminal proceedings against the applicant in these two matters appear to be still pending. 35. The applicant submitted a press release of 24 November 2010 indicating that the Minister of the Interior had stated, after a meeting of the Cabinet, that Slovakia must not be a place where persons facing prosecution for serious criminal actions in one of the member States of the Council of Europe could move freely. The Minister further indicated that the applicant’s case had been sufficiently examined by the Supreme Court, the Constitutional Court and the European Court of Human Rights. The press release indicated that the Minister had refused to speculate as to whether the applicants would be extradited. 36. The applicant maintained that the criminal proceedings against him had been instituted in Russia on the basis of statements by A.M. Mukayev which had been extracted under torture. In that regard Mr Mukayev has a pending application before the Court against Russia (no. 22495/08). The applicant also referred to the cases of M. Gasayev, A. Shakhayev and Z. Zubairayev. Mr Gesayev, for his part, had an application before the Court against Spain (no. 48514/06), which was declared inadmissible on 17 February 2009. Nevertheless, in 2012, he was granted asylum in France. 37. Further circumstances of these individuals are described in the Court’s partial decision of 21 February 2012 on the admissibility of the present application (see paragraphs 45-61 of that decision). 38. Other facts and documents referred to by the applicant are described in paragraphs 62–68 of the Court’s partial decision of 21 February 2012 on the admissibility of the present application. 39. In the decision of 15 April 2014 (see paragraph 22 above), the Court declared inadmissible application by Mr Chentiev, which had been submitted together with the present application, and which rested on identical or similar facts and allegations as the present application. The relevant part of the Court’s decision reads as follows: “21. The documents before the Court indicate that in the proceedings on his renewed asylum request [Mr Chentiev] withdrew his action by which he had sought a review of the administrative authorities’ decisions. On that ground the Supreme Court discontinued the proceedings without addressing the merits of the case ... 22. Furthermore, as regards applications against Slovakia, a complaint under Article 127 of the Constitution has been generally considered as an effective remedy in respect of alleged breaches of the Convention which the applicants have been required to use after having had recourse to other domestic remedies available ... 23. In view of the above, the Court considers that [Mr Chentiev] has failed to use the remedies available in Slovakia as required by Article 35 § 1 of the Convention. Therefore, the subsidiary role of the Convention mechanism ... prevents the Court from dealing with the application.” 40. Subsequently, Mr Chentiev was extradited to the Russian Federation. 41. According to a report of 30 April 2015 submitted by the respondent Government, representatives of the Embassy of the Slovak Republic to the Russian Federation carried out an official monitoring visit of Mr Chentiev in the Federal Detention Centre in Grozny on 28 April 2015. The visit took place without the presence of the Russian party. Mr Chentiev submitted that he had been placed in the Grozny detention centre in June 2014. Of his free will and without any compulsion, he confirmed that during his detention he had not been subjected to any mistreatment and had had no complaint about the conditions of his detention. According to the report, Mr Chentiev appeared to be in good health and had displayed no signs of any mistreatment. The conditions of his detention had been inspected and found adequate. It was concluded that the guarantees of the OPGRF in relation to the treatment of Mr Chentiev were actually observed and there was no reason to question them. 42. A number of relevant international instruments and reports concerning the situation in Chechnya, and Russia in general, 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).