Last Updated on November 21, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 39552/16
K.F.
against Russia
The European Court of Human Rights (Third Section), sitting on 24 September 2019 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
andStephenPhillips, Section Registrar,
Having regard to the above application lodged on 12 July 2016,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The present application against the Russian Federation was lodged with the Court in the name of Mr K.F., a Tajik national, by Ms RozaMagomedova, a lawyer practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
3. On 13 July 2016 the request for an interim measure preventing Mr K.F.’s removal to his country of origin was granted by the Court under Rule 39 of the Rules of Court. The applicant’s case was granted priority (Rule 41) and confidentiality (Rule 33) and the applicant was granted anonymity (Rule 47 § 4).
4. The notice of the complaints under Articles 3, 5, 13 and 34 of the Convention was given to the Government on 10 November 2016.
5. On 13 March 2017 International Commission of Jurists was granted leave to intervene as a third party under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.
6. The relevant facts may be summarised as follows.
7. In April-May 2015 Mr K.F. was charged in Tajikistan with recruiting twenty Tajik citizens for fighting in Syria on the side of Al-Nusra Front (a Salafist jihadist organisation). A search warrant in his name was issued by the Tajik authorities.
8. On 15 July 2015 Mr K.F. was apprehended in Russia and subsequently detained pending extradition.
9. On 5 February 2016 the Deputy Prosecutor General of the Russian Federation authorised extradition to Tajikistan.
10. On 1 June 2016 the Moscow City Court upheld the above authorisation. The applicant, who was present during the hearing, was represented by Ms RozaMagomedova and Ms Olga Golub.
11. On 11 July 2016 Ms R. Magomedova lodged in the name of Mr K.F. a request under Rule 39 of the Rules of Court seeking to stay his removal to Tajikistan. The request was submitted by fax and accompanied by an authority form dated 1 June 2016. The authority form (which normally contains two pages) was missing the first page with the applicant’s name and other personal information. The second page listed Ms R. Magomedova as a lawyer. The page contained the following information about her:
1) nationality “Russia” (Россия);
2) her address totalling 3 lines and mentioning first an NGO she was affiliated with;
3) one phone number;
4) one complete fax number and one incomplete;
5) one email address.
The signature in the box intended for the applicant was aligned closer to the centre of that box.
12. On 12 July 2016 Ms R. Magomedova was requested to submit complete copies of certain documents attached to the above request, including the first page of the authority form.
13. On 13 July 2016 Ms R. Magomedova re-submitted the request for the interim measure, however, once again without the first page of the authority form.
14. On the same day the Court decided “in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Russia, under Rule 39, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Tajikistan or another country until further notice”. Ms R. Magomedova was requested to submit a duly completed application form by 10 August 2016.
15. On 14 July 2016 the Supreme Court of the Russian Federation in a final judgment upheld Mr K.F.’s extradition to Tajikistan. The applicant, who was present during the hearing, was represented by Ms R. Magomedova and Ms O. Golub.
16. On the same day he was transferred to a convoy of Tajik law enforcement agents and extradited to Tajikistan.
17. On 15 July 2016 Ms R. Magomedova informed the Court by fax that Mr K.F. was most likely removed to Tajikistan in breach of the interim measure.
18. On 20 July 2016 the Court under Rule 54 § 2 (a) of the Rules of Court requested Ms R. Magomedova to inform the Court by 27 July 2016 about Mr K.F.’s whereabouts and the developments in the case. She was further reminded to submit a completed authority form.
19. On 25 July 2016 Ms R. Magomedova submitted information on Mr K.F.’s removal. Her submission was accompanied with a copy of the second page of the authority form, which was previously submitted on 11 July 2016 (see paragraph 11 above).
20. On 9 August 2016 Ms R. Magomedova submitted an application form in Mr K.F.’s name. The application form had no original authority form, but another copy of the second page of the authority form, which was previously submitted on 11 July 2016. No explanation as to the absence of the original second page of the authority form was given by her.
21. On 27 July 2018 Ms R. Magomedova was requested to inform the Court by 7 September 2018 whether she remained in contact with Mr K.F. or his next of kin and whether he wished to maintain the application. She was requested to support her position by any documentary evidence. Further, she was reminded that she still had not submitted the original authority form dated 1 June 2016 and advised to do so without any further delay.
22. In absence of any reply from Ms R. Magomedova, on 24 September 2018 the Court reminded her of the letter of 27 July 2018 and set the new time-limit of 5 October 2018 for her submissions. She was informed that in case no reply was received by the Court the application might be struck out of the list of cases.
23. On 1 October 2018 Ms R. Magomedova sent a letter to the Court. In part relevant to the above request of information it read as follows:
“Currently, the applicant has been convicted for 10 years and serves a sentence in a correctional institution of Tajikistan penitentiary system. The applicant, through a lawyer, who represents his interests in Tajikistan, passed on through his relatives, and those in turn, to the Representative of the Applicant for the ECHR, that he still pursued his application.”
24. The above letter was accompanied by an authority form, which was allegedly the original of the form dated 1 June 2016 (the copies of which had been previously submitted on multiple occasions). That alleged original was also missing the first page with the applicant’s name and other personal information. The second page listed Ms R. Magomedova as a lawyer. The page contained the following information about her:
1) nationality “the Russia Federation” (РоссийскаяФедерация);
2) her address totalling 5 lines and mentioning an NGO she was affiliated with after the postal address;
3) two phone numbers;
4) one fax number;
5) two email addresses.
The signature in the box intended for the applicant was aligned closer to the left side of that box.
25. Lastly, in the above letter Ms R. Magomedova stated that on 15 August 2018 she had already submitted a repeated application with the authority form of 1 June 2016. The repeated application form registered under the application number 40744/18 was dismissed under Rule 47 of the Rules of Court due to absence of the applicant’s original signature in the authority form. Ms R. Magomedova was informed of it by the letter of 4 September 2018.
THE LAW
26. It is well-established in the Court’s case-law that where applicants choose to be represented under Rule 36 § 1 of the Rules of Court, rather than lodging the application themselves, Rule 45 § 3 requires them to produce a written authority to act, duly signed. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim, within the meaning of Article 34, on whose behalf they purport to act before the Court (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 102, ECHR 2014).
27. It is equally important that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (V.M. and Others v. Belgium (striking out)[GC], no. 60125/11, § 35, 17 November 2016).
28. Lastly, in dealing with abusive applications the Court stated that it cannot be its task to deal with manifestly improper conduct on the part of applicants or their authorised representatives which creates unnecessary work for the Court, that is incompatible with its proper functions under the Convention (see Martins Alves v. Portugal (dec.), no. 56297/11, § 11, 21 January 2014 with further references). The same logic must be applied in cases such as the present one.
29. Turning to the present case the Court notes that it raises issues both as to whether Ms R. Magomedova was authorised to represent Mr K.F. and as to whether she maintained contact with him throughout the proceedings.
30. It is clear from the content of the case-file that she had represented Mr K.F. in the domestic proceedings (see paragraphs 10 and 15 above). However, this fact has no bearing on whether she had received specific and explicit instructions from the alleged victim to act in his name before the Court (see Câmpeanu v. Romania [GC], cited above).
31. On 11 July 2016 Ms RozaMagomedova lodged in the name of Mr K.F. a request under Rule 39 of the Rules of Court seeking to stay his removal to Tajikistan. The authority form dated 1 June 2016 was submitted by fax and was missing the first page with the applicant’s name and other personal information. Since that date the Court asked Ms R. Magomedova on multiple occasions to submit the complete original of that form.
32. Only on 1 October 2018, which is two years and three months after introduction of the application, she at last submitted an alleged original of the authority form dated 1 June 2016. However, the two documents, which should have been identical as an original and its copy, differ blatantly in wording of Ms R. Magomedova’s nationality, writing of her address, in the number of phone and fax numbers, as well as email addresses. They further differ in the placement of the alleged applicant’s signature on the form (see paragraphs 11 and 24 above). It is beyond obvious that these changes could not be attributed to faxing or photocopying of a document.
33. It must be concluded that the document submitted on 1 October 2018 is not an original of the alleged authority form of 1 June 2016. This conclusion is further proven by the contradictory statements from Ms R. Magomedova, who maintained that she had submitted the alleged original already in August 2018 (see paragraph 25 above) and thus implied that there were two originals of one photocopied document.
34. It is further striking that Ms R. Magomedova, despite the Court’s unequivocal requests for the original of the authority form, preferred to first submit copies of it on at least four occasions and then an obviously different document. On no occasion she had considered it necessary or proper to comment on the issue in any manner.
35. The above circumstances are highly indicative of a manifestly improper professional conduct and falsification on the part of Ms R. Magomedova. In the Court’s opinion this causes grave concerns given the number of past and present applications before the Court, where Ms R. Magomedova, a professional lawyer, is mentioned as a representative.
36. The above considerations make it superfluous to examine in detail whether Ms R. Magomedova maintained continuous contact with Mr K.F. At the same time the Court finds it important to observe that when requested to inform the Court on that point and to provide documentary evidence in support of her position (see paragraph 21 above) she chose to ignore that request. Only after being warned about possible striking out of the application, she submitted a vague, stripped of all details and unsupported by evidence allegation of an existing contact (see paragraph 23 above).
37. Accordingly, it cannot be reliably established whether Ms R. Magomedova had been at any point in time authorised to represent Mr K.F. before the Court, whether she had received specific and explicit instructions from him or whether he had been at all aware of the lodging of an application or the pending proceedings.
38. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the application.
39. In view of the above, it is appropriate to strike the case out of the list.
40. In accordance with Article 28 § 2 of the Convention, the present decision is final. Accordingly, the Court considers that the measure indicated to the Government under Rule 39 of the Rules of Court comes to an end.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 17 October 2019.
Stephen Phillips Alena Poláčková
Registrar President
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