CASE OF TERSHIYEV v. AZERBAIJAN
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
6. The applicant was born in 1961 and is of Chechen ethnic origin. He is currently serving a prison sentence in Azerbaijan. 7. The applicant appears to have arrived in Azerbaijan in 2009. In July 2009 he was arrested while attempting to illegally cross the border from Azerbaijan to Russia together with several other individuals. 8. On 5 April 2011 the Assize Court convicted the applicant, together with a number of other accused, of a number of serious criminal offences committed in Azerbaijan in 2009, including: creation of an illegal organised armed unit; illegal border crossing; illegal possession of firearms, explosives and other weapons; and creation of a network of clandestine flats in Baku as temporary accommodation for members of illegal armed units operating in Chechnya. He was sentenced to fourteen years’ imprisonment. His conviction was upheld by the higher courts. The applicant is currently serving his sentence in Prison No. 11 in Baku. 9. By a decision of 6 September 2011, an investigator of the Vedeno district department of the interior of the Russian Federation (“the Vedeno ROVD”) instituted criminal proceedings against the applicant under Article 208 § 2 of the Russian Criminal Code (participation in an armed unit not envisaged by federal law), on suspicion that during the period 2000 to 2007, he had been an active member of an illegal armed unit operating in the Vedeno district of Chechnya under the command of Khuseyn Gakayev, and that he was still a member of that unit at the time of institution of the criminal proceedings. 10. On 10 October 2011 the Vedeno ROVD issued a search warrant in respect of the applicant as a suspect. 11. On 26 April 2012 it formally charged him as an accused person under Article 208 § 2 of the Russian Criminal Code. 12. On 18 July 2012 it issued an international search warrant in respect of him. 13. By a decision of 20 July 2012, the Vedeno District Court of the Chechen Republic remanded him in custody in absentia. 14. In the meantime, in January 2012 the applicant applied to the Baku Office of the United Nations High Commissioner for Refugees (UNHCR) with a request for asylum. It appears that, since the early 2000s, by mutual agreement and understanding between the UNHCR and the Azerbaijani Government, the processing of asylum applications by people originating from Chechnya was separated from the ordinary government procedure, with applications by members of this group being dealt with directly by the UNHCR. In September 2012 the applicant was interviewed by UNHCR representatives but his application was rejected. 15. On 24 August 2012 the Russian Deputy Prosecutor General formally requested the Azerbaijani Prosecutor General’s Office to extradite the applicant under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). As an alternative, in the event the extradition was subject to postponement under Article 64 of the Minsk Convention owing to the fact that the applicant was serving a prison sentence in Azerbaijan, he requested the applicant’s “temporary extradition” for a period of three months for the purposes of carrying out necessary procedural steps in the framework of the criminal proceedings pending in Russia. 16. The extradition request contained a number of assurances: that the applicant would only be prosecuted in connection with the criminal offence he was charged with; that he would not be subjected to torture or illtreatment; and that in the event of “temporary extradition” he would be returned to Azerbaijan no later than three months after being handed over to the Russian law-enforcement authorities. 17. By a decision of 26 November 2012, the Azerbaijani First Deputy Prosecutor General granted the extradition request and ordered the applicant’s “temporary extradition” to Russia for a period of three months. 18. The applicant, who had a lawyer, lodged an appeal against that temporary extradition order with the Sabayil District Court, arguing that there was a serious risk that he would be tortured or ill-treated by the Russian law-enforcement authorities if he was extradited. 19. By an inquiry letter of 17 January 2013, the judge of the Sabayil District Court dealing with the case requested the Baku Office of the UNHCR to provide information about the grounds on which the applicant had requested refugee status, and whether any decision had been taken by the UNHCR in this respect. 20. By a letter of 23 January 2013, the Baku Office of the UNHCR informed the judge that the applicant’s asylum application had been rejected by the UNHCR “at first instance”, but that he had lodged an appeal against the decision which was awaiting consideration. The UNHCR therefore “strongly requested” that the applicant’s forced return to Russia should be “prevented” until a final decision had been taken by the UNHCR in respect of his application for refugee status. 21. By a decision of 24 January 2013, the Sabayil District Court dismissed the applicant’s appeal against the temporary extradition order of 26 November 2012. The court noted the following: that there were no grounds in the domestic law or relevant international instruments for precluding his temporary extradition to Russia; that his request for refugee status had been rejected by the UNHCR, therefore he did not have refugee status at the time of examination of his appeal; and that the Russian authorities’ extradition request provided the necessary assurances. The court refused to examine the applicant’s complaints concerning an alleged risk of torture or ill-treatment, noting that he had failed to submit any evidence in that regard. 22. On 28 January 2013 the applicant lodged an appeal against this decision, reiterating his complaint that he would be subjected to a risk of illtreatment if extradited to Russia, and Chechnya in particular. 23. On 1 February 2013 the Baku Court of Appeal dismissed the appeal, finding that the Sabayil District Court had reached the correct decision. The Baku Court of Appeal’s decision was silent as to the pending examination by the UNHCR of the applicant’s asylum request and as to his allegations concerning a risk of torture or ill-treatment in the receiving country. 24. In accordance with the procedural rules concerning appeals against the prosecution authorities’ decisions concerning extradition, no further appeal lay against the Baku Court of Appeal’s decision. 25. According to the Government, on 1 March 2013 the applicant was interviewed again by the UNHCR in Prison No. 11. In his latest communication to the Court (4 November 2013), he provided no update concerning his pending appeal with the UNHCR.