Last Updated on April 24, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no.47679/17
M.I.
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 29 January 2019 as a Committee composed of:
Carlo Ranzoni, President,
Faris Vehabović,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 5 July 2017,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the factual information and comments submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicant is a Russian national who was born in 1973. He is currently detained in an immigration centre on security grounds. He was represented before the Court by Vaša Prava, a non-governmental organisation.
2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms. B. Skalonjić.
3. On 12 October 2017 the Court decided to apply Rule 39 and indicate to the Government that, in the interests of the parties and the smooth conduct of the proceedings, they should not extradite the applicant pending the outcome of the proceedings before the Court. It also granted priority (Rule 41), anonymity (Rule 47 § 4) and confidentiality (Rule 33), and asked the Government for factual information (Rule 54 § 2 (a)).
4. On 25 January 2018 the application was communicated to the Government.
5. Submissions by the Government were received on 11 April 2018 and, after they had been sent to the applicant for comment, his comments were received on 22 June 2018. Supplementary observations by the Government were received on 19 September 2018.
6. In line with the Court’s judgment in I v. Sweden (no. 61204/09, §§ 40-46, 5 September 2013), the Russian Government were not given notice of the present application.
A. The circumstances of the case
1. Events in Russia as described by the applicant
7. The applicant was born in Dagestan, and prior to his departure from Russia he lived in Penza Oblast. He describes himself as a Sunni Muslim. His factual allegations are as follows.
8. On 3 June 2014 the applicant’s son was arrested while the applicant was away attending the opening of a mosque. His son was released after one day, having been tortured. The applicant was informed by the police that his son was suspected of aiding paramilitary organisations. He was also asked to pay the police a sum equivalent to 20,000 euros (EUR) to drop all the charges against his son, which he refused to do. Fearing for his son’s well-being, he sent him to Egypt. After that incident the applicant, along with his wife, was subjected to frequent questioning and harassment by the police.
9. On the last occasion when the applicant was questioned, in November 2014, when the questioning lasted until midnight, the authorities tried to extort a confession from him regarding his son’s participation in a paramilitary organisation. The applicant was threatened and told that if he did not make such a confession then evidence against him would be planted, for example his fingerprints would be put on a bomb, and he would be charged with the illegal possession of explosive devices. The applicant left Russia for Egypt a few days after this incident, fearing ill-treatment, torture and eventually extrajudicial execution. He stayed in Egypt for two years before moving to Turkey.
10. His wife, who initially stayed on in Penza Oblast, was frequently questioned regarding the applicant’s whereabouts. She was also forced to sign a blank sheet of paper and was not provided with the official record of her interrogation. The applicant found out that the police forces had started drafting “watch lists” of individuals who were Muslim, and that those individuals were being subjected to investigations, general harassment, torture and enforced disappearances. According to him, the names of his entire family were on such a list.
11. In 2015 the applicant was informed by his brother that, in his absence, criminal proceedings had been initiated against him on charges related to terrorism.
12. On 14 April 2017 the applicant arrived in Bosnia and Herzegovina for the purpose of seeking asylum.
2. Extradition proceedings
13. On 4 November 2015 the investigation department of the Russian Ministry of Internal Affairs for the Kizlyarsky District instituted criminal proceedings against the applicant under Article 208 § 2 of the Russian Criminal Code (organising or participating in an illegal armed organisation). Specifically, it was suspected that in the period between December 2013 and June 2014 the applicant had knowingly aided the activities of a member of an illegal armed organisation created in the territory of the Khasavyurt District, through acquiring food, clothes and medicines in the city of Kizlyar (Dagestan).
14. On 25 January 2016 an international arrest warrant was issued in respect of the applicant. On 6 October 2016 formal charges were brought against him. On 13 October 2016 the Kizlyar Regional Court ordered the applicant’s placement in pre-trial detention.
15. On 14 April 2017, upon his arrival in Bosnia (see paragraph 12 above), the applicant was apprehended at Sarajevo International Airport as a person appearing on Interpol’s international list of wanted persons for “aiding [the] terrorist activities” of a member of an illegal armed organisation. On the same day the Court of Bosnia and Herzegovina (Sud Bosne i Hercegovine, hereinafter “the State Court”) placed him under provisional arrest.
16. On 20 April 2017 the State Court rejected an appeal by the applicant against his provisional arrest. On 28 April 2017 the court extended his provisional arrest. On 5 May 2017 the State Court rejected an appeal by the applicant against that decision.
17. On 11 May 2017 the Office of the Prosecutor General of the Russian Federation (“the OPGRF”) requested the applicant’s extradition. On 16 May 2017 that request was forwarded by the Russian Embassy to the Ministry of Justice of Bosnia and Herzegovina, which delivered it to the Prosecutor’s Office of Bosnia and Herzegovina on 24 May 2017.
18. On 24 May 2017 the State Court terminated the applicant’s provisional arrest, since the Prosecutor’s Office of Bosnia and Herzegovina had not submitted the extradition request to it by that time. On 1 June 2017 the State Court placed the applicant in detention with a view to his extradition. On 7 June 2017 the State Court rejected an appeal by the applicant against that decision.
19. On 22 June 2017 the State Court rendered a decision on the fulfilment of the statutory conditions for the applicant’s extradition. It stated that the extradition inquiry had not established any legal or other impediments to the requested measure. It also noted that the applicant had indicated his intention to seek asylum only after the Russian request for extradition had been received by the authorities of Bosnia and Herzegovina. Therefore, under the domestic legislation, the asylum request did not constitute an obstacle to his extradition. The State Court noted that the offences of which he was accused in Russia were also criminally punishable in Bosnia and Herzegovina (the illegal formation of armed forces). Lastly, it observed that the extradition was not aimed at persecuting the applicant on political, racial, ethnic, sexual or religious grounds, and was not sought in respect of a criminal offence punishable by the death penalty.
20. The applicant challenged the above decision. He submitted that he had already requested asylum during the hearing following his provisional arrest on 14 April 2017 (see paragraph 15 above), and that pursuant to his rights under the Convention, the State Court should have facilitated contact with the “relevant [people]”. Moreover, he alleged that he had “submitted a request for political asylum” to the “Organization for Human Rights in Bosnia and Herzegovina” on 8 May 2017. The applicant also submitted that the extradition documentation had a number of deficiencies, including inadequate translations of the supporting documents relating to his extradition. Moreover, no evidence had been provided to substantiate the accusations against him.
21. On 3 July 2017 the State Court ruled against the applicant. It considered that he was contradicting himself by stating that he had asked for asylum on both 14 April and 8 May 2017, and that on the latter date he had only requested a meeting with the members of an organisation defending human rights in Bosnia and Herzegovina or with other relevant international organisations for the purposes of seeking asylum.
3. Asylum proceedings
22. On 29 May 2017 the applicant indicated his intention to seek asylum to the Aliens Service.
23. On 6 June 2017 the applicant’s asylum request was registered with the Asylum Service of the Ministry of Security (hereinafter “the Asylum Service”). The applicant briefly described the events prior to his departure from Russia.
24. On 20 June 2017 the applicant’s first interview with the Asylum Service had to be terminated due to the inadequate quality of the interpretation from the Russian language.
25. On 1 August 2017 the applicant’s interview was resumed, with a new interpreter. The applicant provided a more detailed description of his personal situation and the relevant background facts (see paragraphs 7-12 above). He stated that the criminal charges against him in Russia were fabricated, that he would be tortured or killed upon his return, and that he was aware that many individuals in the Northern Caucasus, particularly Muslims, were coerced into giving confessions by means of torture inflicted by Russian law-enforcement agencies. He described instances of enforced disappearances, including those of individuals he knew. He indicated that his remaining family in Russia were being subjected to harassment. The applicant denied belonging to any illegal organisation.
26. On 4 August 2017 the Asylum Service rejected the applicant’s asylum request. It concluded that the serious crimes alleged against him could not be considered political, and that they warranted his exclusion from refugee status and subsidiary protection. It proceeded to examine whether there was a real risk that he might be exposed to the death penalty or to execution, torture, inhumane or degrading treatment or punishment upon his extradition to Russia. It concluded that his claims should be examined under Article 3 of the Convention and that the test should be whether the “denial of [a] free trial could be considered inhumane or degrading treatment”. It analysed the report of the US State Department entitled “United States Country Report on Human Rights Practices – Russia” (3 March 2017), in particular the section entitled “Trial Procedures”. The Asylum Service concluded that despite “certain deficiencies” in the functioning of the Russian judicial system, the applicant would enjoy the guarantees of a fair trial. The Asylum Service did not find his claims regarding the unsubstantiated nature of his criminal prosecution credible, and emphasised that the assessment of the risk alleged in the asylum claim was subject to a “high standard of proof”. It concluded that the applicant had submitted his request in order to delay or prevent the enforcement of the decision on extradition.
27. On 11 October 2017 the State Court rejected an appeal by the applicant and upheld the conclusions and reasoning of the Asylum Service. The applicant challenged that decision before the same court, by means of an extraordinary legal remedy. On 22 November 2017 that challenge was dismissed. On 29 January 2018 the applicant submitted an appeal to the Constitutional Court. The latest information made available to the Court (dated 12 November 2018), indicated that the Constitutional Court had not yet ruled on this matter.
28. On 21 October 2017 the applicant was placed in an immigration centre, where he is detained on security grounds.
4. Guarantees of the OPGRF
29. The request of the Russian Federation of 11 May 2017 for the applicant’s extradition (see paragraph 17 above) was accompanied by guarantees from the OPGRF as regards the treatment to be accorded to the applicant in the event of his extradition.
30. The guarantees can be 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 Bosnia and Herzegovina; would not be subjected to torture or inhuman or degrading treatment or punishment; would be free to leave the Russian Federation upon the completion of the criminal proceedings and after serving any sentence; would not be extradited to a third country; and would have conditions of detention which were in accordance with the Convention. Moreover, it was guaranteed that officials from the embassy of Bosnia and Herzegovina could visit the applicant at any time for the purpose of verifying compliance with the pledges made.
31. On 19 October 2017 the OPGRF reiterated the commitments which it had previously indicated, and additionally guaranteed that the applicant would have access to appropriate medical treatment at all stages of the criminal proceedings.
B. Relevant domestic law
32. Section 9(1) of the International Legal Aid in Criminal Matters Act 2009 (Zakon o međunarodnoj pravnoj pomoći u krivičnim stvarima)[1] provides that the competent domestic judicial body shall refuse a request for international legal cooperation if the request relates to an act which is considered a political criminal offence or an act related to a political criminal offence. Section 34 of the same Act provides that one of the conditions for extradition is that a person whose extradition is sought does not enjoy the right of asylum in Bosnia and Herzegovina, or is not seeking asylum in Bosnia and Herzegovina at the time the extradition request is submitted.
33. Section 2 of the Asylum Act 2016 (Zakon o azilu)[2] defines an asylum seeker as an alien who has submitted an asylum application in respect of which a final decision has not yet been taken. Section 31 provides that the intention to seek asylum can be expressed to the border police at a border crossing or to the organisational units of the Aliens Service, which will inform the alien about the asylum procedure and his or her rights and duties. Section 76 provides that the asylum seeker has a right to stay in Bosnia and Herzegovina; he or she shall be informed about the asylum procedure and his rights and obligations, pursuant to section 15.
C. Relevant international instruments and reports
34. A number of relevant international instruments and reports concerning the situation in Russia are summarised in the Court’s judgment in M.V. and M.T.v. France (no. 17897/09, §§ 23-25, 4 September 2014).
35. The more recent data available confirm that the situation in the North Caucasus region remains unstable. The Human Rights Watch report “Invisible War’ ‒ Russia’s Abusive Response to the Dagestan Insurgency” of 18 June 2015 outlines several human rights violations during counter-insurgency operations in Dagestan, including arbitrary detention, torture and forced disappearances.
36. The International Crisis Group, in its report “The North Caucasus Insurgency and Syria: An Exported Jihad?” of 16 March 2016, describes grave human rights violations, including enforced disappearances, summary executions and the widespread occurrence of torture in Dagestan and Chechnya. It also describes the preventive registration on “lists” of those suspected of adhering to fundamentalist strands of Islam as one of the key control methods across the Northern Caucasus. After incidents such as clashes between security forces and insurgents, or terrorist acts, the individuals on these lists were faced with the risk of detention and interrogation, which often involved violent or degrading methods.
37. The US State Department, in its “United States Country Report on Human Rights Practices – Russia”, published on 3 March 2017, notes:
“Conflict in the North Caucasus between government forces, insurgents, Islamist militants, and criminals led to numerous abuses, including killings, torture, physical abuse, politically motivated abductions, and a general degradation in the rule of law …
Violence continued in the North Caucasus republics, driven by separatism, interethnic conflict, jihadist movements, vendettas, criminality, excesses by security forces, and the activity of terrorists. Media reported that in 2015 the total number of deaths and injuries due to the conflicts in the North Caucasus decreased significantly compared with 2014 in all republics of the North Caucasus…”
COMPLAINTS
38. The applicant complained under Article 3 of the Convention that, if extradited to Russia, he would be detained, tortured or killed owing to the nature of the charges against him and the previous ill-treatment of him and members of his family. He also invoked Article 2 of the Convention, in view of the “indications and attempts to reintroduce the death penalty, particularly in the context of persons ultimately being charged with terrorism”.
39. Lastly, the applicant complained under Article 13 of the Convention that the domestic courts had not sufficiently assessed his complaints under Articles 2 and 3 of the Convention, that he had been denied access to the asylum procedure upon entering Bosnia and Herzegovina and during the extradition proceedings, and that he had not had access to a remedy with automatic suspensive effect in relation to his claims under those Articles.
THE LAW
A. Complaint under Article 3 of the Convention
40. The applicant alleged that extraditing him to Russia would violate Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Arguments of the parties
41. The applicant argued that, having regard to the nature of the charges against him and his previous ill-treatment, if extradited he would be ill-treated in the context of the criminal proceedings against him.
42. In their reply of 27 April 2018 and comments of 12 September 2018, the respondent Government argued that the applicant’s complaints were manifestly ill-founded, as he had failed to prove the existence of any specific circumstances which would result in his being subjected to treatment contrary to Article 3 in the event of his extradition. In addition, the Government referred to the guarantees offered by the requesting State in respect of the applicant’s treatment, submitting that there were no grounds to doubt them and relying on the Court’s case-law in Ibragimov v. Slovakia ((dec.), no. 65916/10, 30 June 2015). The Government further argued that the application should be rejected for non-exhaustion of domestic remedies because the applicant had failed to submit a constitutional appeal before introducing his application to the Court.
2. The Court’s assessment
43. The Court observes at the outset that, on the date of the latest available information (12 November 2018), the applicant’s appeal to the Constitutional Court was still pending (see paragraph 27 above). However, it considers that it is not necessary to examine the Government’s objection of non-exhaustion of domestic remedies (see paragraph 42 in fine above) because, in any event, the application is inadmissible for the following reasons.
44. The general principles regarding the assessment of applications for asylum under Articles 2 and 3 of the Convention are set out in F.G. v. Sweden ([GC] no. 43611/11, §§ 111-127, 23 March 2016) and J.K.and Others v. Sweden ([GC], no. 59166/12, §§ 79-105, 23 August 2016).
45. The Court notes that the applicant’s claim is based partly on the general situation in the requesting State and partly on his specific circumstances. In its judgment in M.V. and M.T. v. France (no. 17897/09, § 39, 4 September 2014), the Court found that although there were reports of serious human rights violations in the North Caucasus region, the situation was not such that any return to the Russian Federation would constitute a violation of Article 3 of the Convention. In view of the above-mentioned international reports (see paragraphs 34 to 37 above), the Court sees no reason to depart from such a conclusion.
46. In this respect, the Court reiterates that certain categories of the population of the North Caucasus, and more particularly of Chechnya, Ingushetia and Dagestan, are particularly at risk, such as members of the armed insurgency, persons considered by the authorities to be such members, their relatives, or persons who have assisted them in one way or another. In this context, the risk assessment for an applicant must be made on an individual basis, but bearing in mind that persons with a profile corresponding to one of the above categories are more likely than others to attract the unfavorable attention of the authorities (see M.V. and M.T. v. France, cited above, § 40; R.V.v. France, no. 78514/14, § 53, 7 July 2016; and R.K. and Others v. France, no. 68264/14, § 50, 12 July 2016).
47. The applicant alleges that he is a person with a profile corresponding to one of the categories identified above, as he is facing criminal charges of assisting a member of an illegal armed organisation in Dagestan engaged in terrorist activities.
48. The Court observes that there is no question in this case of “simply” expelling the applicant to Dagestan. If he is removed to the Russian Federation, it will be in response to a request for extradition. If he is returned to the Russian authorities, he may be detained pending trial and prosecuted and, if convicted and sentenced, he is likely to serve his sentence in a State-run penal facility for convicted prisoners (see, mutatis mutandis, Zarmayev v. Belgium, no. 35/10, § 96, 27 February 2014). It is therefore for the Court to consider the risks alleged by the applicant in this specific context.
49. The Court notes that while the applicant’s account of the events giving rise to his departure from the Russian Federation appears credible as a whole, it remains vague and incomplete, particularly in relation to the nature of the alleged ill-treatment perpetrated against him and members of his family. Moreover, even though the Government have not indicated contradictions or inconsistencies in the applicant’s account of events, the Court cannot but agree with them that the applicant has not submitted any evidence, documents or medical reports to substantiate his claims regarding the alleged ill-treatment (see, a contrario, M.V. and M.T. v. France, cited above, §§ 44-45 and 47; R.K.v. France, no. 61264/11, §§ 67-69, 9 July 2015; and R.V. v. France, cited above, § 56).
50. With respect to the alleged risk of the applicant’s being ill-treated in the event of his extradition, the Court notes that, as experience shows, the physical abuse of suspects by police officers usually occurs within the first few days of an arrest (see, for example, Tershiyev v. Azerbaijan, no. 10226/13, § 53, 31 July 2014, and A.Y. v. Slovakia (dec.), no. 37146/12, § 58, 1 March 2016), which is a different type of situation from that now potentially faced by the applicant. In any event, the Court reiterates that a mere possibility of ill-treatment in circumstances similar to those obtaining in the present case is not in itself sufficient to give rise to a breach of Article 3 (see Ibragimov, decision cited above, § 73, and A.Y. v. Slovakia, decision cited above, § 59).
51. In addition, the Court is of the view that both the general situation in the requesting State and the applicant’s individual situation in the present case are to be seen in the light of the assurances provided by the OPGRF regarding his treatment in the event of his extradition (see paragraphs 29–31 above).
52. In that regard, the Court has to assess the quality and reliability of those assurances, taking into account: (i) whether the terms of the assurances have been disclosed to the Court; (ii) whether the assurances are specific or are general and vague; (iii) who has given the assurances and whether that person can bind the receiving State; (iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them; (v) whether the assurances concern treatment which is legal or illegal in the receiving State; (vi) whether the assurances have been given by a Contracting State; (vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances; (viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers; (ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible; (x) whether the applicant has previously been ill-treated in the receiving State; and (xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 189, ECHR 2012 (extracts), with further references).
53. The Court notes that the guarantees under assessment in the present case are similar in nature to those accepted by the Court in other cases relating to extradition to a requesting State (see Ibragimov,decision, cited above, §§ 69-75, and A.Y. v. Slovakia, decision cited above, §§ 61-65). In the Court’s assessment, the validity of these guarantees has not been undermined by the applicant, and it finds no grounds to doubt that the assurances given by the OPGRF will be respected. It is true that it remains within the discretionary power of authorities of Bosnia and Herzegovina to avail themselves, or not, of the opportunity to carry out the diplomatic monitoring of compliance with the assurances given by the Russian authorities. Nevertheless, by offering and confirming that opportunity (see paragraphs 30-31 above), the Russian authorities undoubtedly gave additional weight to the provided guarantees (see, mutatis mutandis, Chentiev and Ibragimov v. Slovakia (dec.), nos. 21022/08 and 51946/08, 14 September 2010).
54. The Court attaches importance to the fact that the case concerns extradition to a High Contracting Party to the Convention which has undertaken to secure the fundamental rights guaranteed under this provision (see Bajsultanov v. Austria, no. 54131/10, § 70, 12 June 2012, and Chankayev v. Azerbaijan, no. 56688/12, § 80, 14 November 2013), and that claims concerning specific forthcoming violations of guarantees of the Convention could be addressed in a complaint against it (see Tatar v. Switzerland, no. 65692/12, § 53, 14 April 2015).
55. In sum, the Court concludes that it has not been established in the present case that there are substantial grounds for believing that the applicant would be exposed to a real risk of ill-treatment in the event of his extradition to Russia.
56. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaint under Article 2 of the Convention
57. As to the applicant’s complaints under Article 2 of the Convention, the Court notes that in 2009 the Constitutional Court of the Russian Federation imposed an indefinite moratorium on capital punishment in Russia (for the text of the decision, see A.L. (X.W.) v. Russia, no. 44095/14, § 51, 29 October 2015), and the applicant’s contentions to the contrary remain unsubstantiated.
58. Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Complaint under Article 13 of the Convention
59. As regards the applicant’s complaint under Article 13 in conjunction with Articles 2 and 3 of the Convention, the Court’s recalls that Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). In the present case, the Court has concluded that all the applicant’s substantive claims under Articles 2 and 3 were manifestly ill-founded. The rejection of a complaint as “manifestly ill-founded” amounts to a decision that “there is not even a prima facie case against the respondent State” (Airey v. Ireland, 9 October 1979, § 18, Series A no. 32, and Walter v. Italy (dec.), no. 18059/06, 11 July 2006). The Court is therefore of the opinion that in the circumstances of the present case, the applicant did not have any arguable grievance in terms of the Convention and that Article 13 does not apply.
60. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
61. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, unanimously,
Declares the application inadmissible;
Done in English and notified in writing on 21 February 2019.
Andrea Tamietti Carlo Ranzoni
Deputy Registrar President
_________________
[1]. Official Gazette of Bosnia and Herzegovina nos. 53/09 and 58/13.
[2]. Official Gazette of Bosnia and Herzegovina nos. 11/16 and 16/16.
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