FIFTH SECTION

DECISION

Application no. 61820/19 U.S. against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 20 May 2021 as a Committee composed of:

Stéphanie Mourou-Vikström , President, Jovan Ilievski , Arnfinn Bårdsen , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 20 November 2019,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr U.S., is a Tajikistani national, who was born in 1992 and lives in Kyiv. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr O.I. Skorbach , a lawyer practising in Kyiv.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant left Tajikistan in September 2014. He then lived in Russia and left for Turkey. According to him, he worked there as a driver and loader.

4 . On 2 March 2015 criminal proceedings were instituted against him in Tajikistan under Article 401-1 of the Criminal Code making “unlawful participation of a Tajikistani national in an armed conflict abroad” punishable by twelve to twenty years of imprisonment. According to the charges, in the second half of 2015, while in Russia, the applicant joined the terrorist organisation known as the “Islamic State of Iraq and Levant” (ISIS) and travelled through Turkey to Syria where he fought on the side of ISIS.

5 . On 5 May 2016 a court in Tajikistan ordered the applicant ’ s arrest. He was placed on the international “wanted” list.

6 . On 11 August 2016 the applicant arrived in Ukraine from Turkey. According to a note from the Ukrainian security services which is in the file, he had left that country because of the measures the Turkish authorities were taking against suspected ISIS militants.

7 . The applicant was arrested on arrival at Kyiv airport and was subsequently placed in extradition detention (see paragraph 24 below).

8 . The courts held hearings concerning the applicant ’ s detention and ordered his detention in the context of extradition proceedings on 13 August, 14 September and 9 November 2016. The applicant was present at the hearings and was represented by lawyers. The courts continued to examine the matter of the applicant ’ s detention at regular intervals afterwards until 6 December 2019, when the applicant was released.

9 . On 11 November 2016 the applicant applied for asylum. He stated that he could not return to Tajikistan because of his Muslim religion since in Tajikistan individuals who prayed, attended mosques, wore a hijab and a beard could be arrested and fined.

10 . On 2 December 2016 an interview was conducted with the applicant by the Kyiv Regional Migration Service (the RMS). The applicant stated that he was an ethnic Tajik and a Sunni Muslim, spoke Russian and Tajik. When asked whether he had ever been arrested or stopped by the police or prosecuted in Tajikistan, whether he belonged to any political, religious or military organisations, the applicant answered “No”. He said that in Tajikistan he had practiced Islam since his childhood. He had started wearing a beard in 2014. He had visited a mosque in his hometown five times a week, which had been well-attended. When asked what risk he was facing in Tajikistan, the applicant stated that he faced persecution from the police and would be imprisoned for a long time in the absence of any evidence ( посадят на долго без доказательств ). When asked why he was applying for asylum in Ukraine, the applicant stated that he wanted to stay in Ukraine as Tajikistan had “religious problems” ( у нас в Таджикистане религиозные проблемы , хочу остаться в Украине ).

11 . In a questionnaire filled in as part of the asylum application assessment process the applicant stated that he had never been exposed to incidents of violence in connection with religious or political convictions.

12 . On 7 December 2016 the applicant was formally informed of his rights as an asylum seeker under the Ukrainian legislation, including the right to obtain assistance of a legal aid lawyer (see the relevant legislative provisions in paragraphs 30 and 33 below).

13 . On 9 December 2016 the RMS rejected the applicant ’ s asylum application. The RMS did not find his allegations credible, notably because Sunni Islam was the religion of the overwhelming majority of the population in Tajikistan and it transpired from the applicant ’ s statements during the interview that he had never been bothered by the authorities while in Tajikistan and had practiced his religion there without incident. He had also stated that the was not a member of any religious or political organisations. Moreover, from 2014 to 2016 the applicant lived in safe third countries. There was no indication that proceedings pending against the applicant in Tajikistan were associated with any persecution against him. The applicant ’ s story was a mere attempt to avoid criminal liability.

14 . On Friday 16 December 2016 an official notification of the RMS ’ s decision was served on the applicant in prison. The notification stated that the application had been rejected because the applicant had failed to demonstrate that he would face a risk in Tajikistan. It cited the relevant provisions of the Refugees and Persons in Need of Subsidiary Protection Act and stated that the decision could be appealed to the State Migration Service or directly to court under section 12 of the Act (see paragraph 32 below) within five business days of the day of the notification ’ s service. The applicant signed for the notification; he did not formulate any remarks.

15 . On 26 December 2016 the time-limit for appeal expired.

16 . On 16 January 2017 the applicant ’ s lawyer lodged an administrative appeal against the RMS ’ s decision with the State Migration Service. The lawyer asked that the time-limit for appeal be extended as the applicant had only retained him on 13 January.

17 . On 4 April 2017 the State Migration Service refused to examine the appeal on the merits, finding that it had been lodged, for no good reason, out of time. It noted that the time-limit had expired on 26 December 2016 (see paragraph 15 above) and the applicant had shown no good reason for having missed it. In particular, the lawyer had been retained only on 13 January and, in any event, the records showed that, as part of the asylum application process the applicant had been duly informed, as required by law, of his right to legal aid (see paragraph 12 above).

18 . On 28 April 2017 a notification of the decision was served on the applicant.

19 . The applicant appealed to the Kyiv Circuit Administrative Court (the Circuit Court). On 9 February 2017 the court returned the applicant ’ s statement of claim to him without examination, having pointed out that the applicant had failed to indicate the respondent and the respondent ’ s contact details. The court invited him to correct the error by 28 February 2017. On 7 April 2017 the court found that the applicant had failed to remedy the shortcomings and rejected the claim.

20 . In July 2017 the applicant lodged a new claim with the Circuit Court, seeking to set aside the State Migration Service ’ s decision of 4 April 2017.

21 . On 17 July 2017 the Circuit Court initiated the proceedings on the applicant ’ s new appeal.

22 . On 16 May 2019 the Circuit Court allowed the applicant ’ s claim and quashed the State Migration Service ’ s decision not to examine the appeal. The court found that, because the applicant was appealing against the State Migration Service ’ s decision and not against the underlying RMS decision, the only relevant issue before the court was the correctness of the State Migration Service ’ s decision to refuse to examine the appeal as lodged out of time. It went on to note that, because the applicant had failed to provide the court with all pages of his appeal to the State Migration Service, the court could not ascertain whether he had good reasons for having missed the time-limit. At the same time the court considered that the State Migration Service had failed to properly examine whether there had been a good reason for missing the time-limit.

23 . On 22 October 2019 the Sixth Administrative Court of Appeal allowed the State Migration Service ’ s appeal, quashed the Circuit Court ’ s decision and rejected the applicant ’ s claim. It endorsed the State Migration Service ’ s reasoning as to why the complaint had been lodged outside of the time-limit for no good reason (see paragraph 17 above). Having examined the full text of the applicant ’ s administrative complaint lodged with the Service, as well as the latter ’ s decision, the Court of Appeal considered erroneous the Circuit ’ s Court ’ s conclusion that the Service had not properly examined whether there had been a good reason for missing the time-limit. The Court of Appeal held, to the contrary, that the Service had given sufficient reasons for its decision.

24 . On 6 September 2016 the General Prosecutor ’ s Office of Tajikistan requested the applicant ’ s extradition from Ukraine on charges set out in paragraph 4 above. The Office provided assurances to the effect that the charges against the applicant did not carry the death penalty, that they were not politically or religiously motivated, that the applicant would not be subjected to torture, inhuman or degrading treatment and that he would benefit from procedural rights in accordance with international law, including the right to a lawyer.

25 . On 27 June 2017 the General Prosecutor ’ s Office of Ukraine decided to extradite the applicant to Tajikistan. It noted , in particular, that the international obligations of Ukraine did not bar his extradition and referred in that respect to the Tajikistani authorities ’ assurances and the results of examination of the applicant ’ s asylum application. It also stated that ISIS was on the list of terrorist organisations established under the resolutions of the UN Security Council and therefore the crime for which the applicant was wanted in Tajikistan was also punishable under Ukrainian law (as the crime of participation in a terrorist organisation). Finally, there was no indication that criminal proceedings against the applicant were politically motivated.

26 . The applicant appealed, referring to the problematic human rights situation in Tajikistan, in particular high likelihood of conviction of anyone accused of a crime and occasions of ill-treatment of suspects in custody. This accusatory tendency and failure to respect presumption of innocence on the part of Tajikistani authorities was evidenced by the fact that in the extradition request the General Prosecutor ’ s Office of Tajikistan had stated that the applicant had “committed” the crime he had been charged with rather than was merely suspected of it. The applicant also referred to international reports on the poor human rights situation in Tajikistan and invoked Article 3 of the Convention. Finally, the applicant also argued that his extradition would be contrary to the Code of Criminal Procedure (see the relevant provision in paragraph 29 below) because the offence for which he was wanted in Tajikistan was not punishable under Ukrainian law.

27 . On 4 August 2017 the Kyiv Shevchenkivsky District Court overruled the extradition decision in view of the fact that the applicant ’ s appeal against rejection of his asylum application was pending before the courts (see paragraph 21 above).

28 . On 10 January 2018 the Kyiv City Court of Appeal quashed the District Court ’ s decision and upheld the extradition decision. It held that the matter of potential violation of the applicant ’ s rights in Tajikistan had been examined within the framework of the applicant ’ s asylum application which had been rejected as unfounded.

29 . Article 589 § 1 of the Code provides that a person cannot be extradited if Ukrainian law does not make the offence for which extradition is requested punishable by imprisonment or if extradition would be contrary to Ukraine ’ s international obligations. The other relevant provisions of the domestic law concerning extradition procedures can be found in Baz v. Ukraine ([Committee], no. 40962/13, §§ 25-28, 5 November 2020).

30 . Section 7 § 12 provides that, when applications for asylum are received by the migration authorities, the authorities are required to inform the applicant of the procedure for the examination of the application, the applicant ’ s rights in this procedure, including the right to legal aid and the procedure to follow to apply for legal aid.

31 . Section 10 provides a time-limit of five business days (i.e. excluding weekends and holidays) for appeal against decisions to reject an asylum application.

32 . Section 12 § 1 provides that a decision to reject an asylum application can be appealed to a superior administrative authority (at the relevant time the State Migration Service) or directly to a court.

33 . Section 12 § 7 provides that asylum seekers have a right to legal aid. A lawyer can be retained by the asylum seeker privately or be appointed (through the relevant bar association or legal aid centre) by the administrative authority examining the matter of asylum.

COMPLAINTS

34 . The applicant complains under Articles 2, 3 and 9 of the Convention that in case of his extradition to Tajikistan he would be exposed to the risk of extrajudicial execution, torture, inhuman and degrading treatment because of his religion and would be unjustifiably restricted in his religious practice there.

35 . Under Articles 6 and 13 of the Convention the applicant complains that the authorities ordered his extradition to Tajikistan in breach of domestic law because the charges against him concerned an offence not punishable under Ukrainian law.

THE LAW

36 . The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not merely require that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It also normally requires that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, for example, Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010, with further references). Consequently, domestic remedies have not been exhausted when an appeal is not accepted for examination because of a procedural mistake by the applicant (ibid., § 143).

38 . According to the unanimous assessment of domestic authorities and courts, the appropriate venue for the assessment of the risks the applicant might face on return to Tajikistan was the asylum procedure, the outcome of which was decisive for the extradition process (see paragraphs 25 , 27 and 28 above). In this connection it should be reiterated that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018) and that the aggregate of remedies provided for under domestic law may satisfy the requirements of an “effective remedy” under the Convention (see Leander v. Sweden , 26 March 1987, § 77, Series A no. 116, 1987, and De Souza Ribeiro v. France [GC], no. 22689/07, § 79, ECHR 2012).

39 . The applicant, in the asylum proceedings, made only very vague statements about the risk he might face in Tajikistan. He did not invoke the fact that he was facing terrorism-related charges. The migration authorities cited relevant reasons for dismissing the application. In view of the vagueness of the applicant ’ s account, their reasoning in that respect does not appear entirely inadequate. While the applicant expanded on those submissions in the extradition-appeal proceedings, he commented mainly on the general human rights situation in Tajikistan rather than on his personal circumstances (see paragraph 26 above).

40 . In any event, in the present case a more important issue arises in respect of the applicant ’ s compliance with the domestic procedural rules and time-limits. Under domestic law, two avenues of appeal against the rejection of his asylum application were available to the applicant: either a direct appeal to the administrative courts or an administrative appeal to the State Migration Service. The latter ’ s decision was in turn itself appealable to the administrative courts.

41 . Having chosen the latter avenue of appeal, however, the applicant failed to lodge it within the prescribed time-limit. At the domestic level he cited as the reason the fact that he had retained a lawyer only twenty-one days after the deadline for appeal had expired (see paragraphs 15 and 16 above). The domestic authorities, including the courts, examined this explanation and rejected it (see paragraphs 17 and 28 above).

42 . The Court sees no reason to disagree. There is no indication that lodging an administrative appeal with the State Migration Service necessarily required the assistance of a lawyer. However, even leaving aside this aspect of the case, the applicant did not explain (either in the domestic proceedings or before the Court) what had prevented him from retaining a lawyer in good time.

43 . In particular, the applicant did not present any argument or evidence that would put in doubt the domestic authorities ’ finding that the right to a legal aid lawyer had been duly explained to him in advance, as required by law (see paragraphs 12 , 17 and 23 above). It is also notable that during the same period the applicant benefited from the assistance of lawyers in the context of detention hearings (see paragraph 8 above).

44 . Finally, it can be observed that the applicant continually failed to comply with the domestic procedural rules and formalities even after he had retained a lawyer of his choice (see paragraphs 19 and 22 above).

45 . If follows that these complaints must be declared inadmissible and rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

46 . It is well-established in the Court ’ s case-law that decisions regarding the entry, stay and deportation of aliens, including asylum and extradition proceedings, do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him (see Maaouia v. France [GC], no. 39652/98, § 38, ECHR 2000 ‑ X, and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 82, ECHR 2005 ‑ I).

47 . As far as the applicant ’ s invocation of Article 13 is concerned, the Court has concluded that all his other complaints are inadmissible. In any event, the applicant does not appear to invoke Article 13 to mean that he lacked a remedy against any specific grievance but rather to express his disagreement with the domestic courts ’ interpretation of the relevant domestic law, a matter which is primarily for domestic courts to resolve (see S., V. and A. v. Denmark , cited above, § 148). The applicant, therefore, has no “arguable claim” of a breach of any provision of the Convention.

48 . It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.

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 10 June 2021 .

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Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President