FIFTH SECTION

DECISION

Application no . 14021/10 Ali Dzokajevic ATSAEV against the Czech Republic

The European Court of Human Rights ( Fifth Section ), sitting on 7 July 2015 as a Committee composed of:

Boštjan M. Zupančič , President, Helena Jäderblom , Aleš Pejchal , judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 10 March 2010 ,

Having regard to the comments submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having regard to the comments submitted by the Government of the Russian Federation,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ali Dzokajevic Atsaev , is a Russian national, who was born in 1966 and lives in Prague . He was represented before the Court by Mr M. Č echovsk ý , a lawyer practising in Prague .

The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm , from the Ministry of Justice .

The Russian Government, who had made use of their right to intervene under Article 36 of the Convention, were represented by Mr G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights .

The circumstances of the case

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

1. Background of the case

The applicant, of Chechen ethnicity, fought in the first Chechen war in 1994-1996 against Russian forces. He was a commander of a unit. He served under the direct command of a certain B. who was granted asylum in Belgium . Two of his relatives who also fought in the Chechen army were granted asylum in France . According to the applicant, his problems started after the second Chechen war in 1999, in which he did not participate and by which the Russian Federation regained control over the territory. His name was entered to the list of Chechen fighters in the first Chechen war. As a result, he was twice detained by Russian authorities.

In 2003 the applicant left the Russian Federation and arrived to the Czech Republic on a Georgian passport under the name of Revaz Levidze .

2. Extradition proceedings

On 29 December 2008 the Russian General Prosecutor Office requested the Czech Republic to extradite the applicant who had been charged with hiring an assassin to murder a certain I.M. in Moscow on 4 April 2002. The applicant alleges that the criminal case against him has been fabricated and is based on a testimony of a single person who was tortured.

On 17 February 2009 the Prague Municipal Prosecutor Office requested the Prague Municipal Court to allow the applicant ’ s extradition. The applicant was taken into detention pending the decision on his extradition.

On 10 March 2009 the Municipal Court decided that the applicant could not be extradited to Russia because he would be persecuted for his role as a commander in the first Chechen war. He was released from custody.

On 19 March 2009 the Prague High Court upheld this decision.

On 29 July 2009 the Supreme Court, upon a complaint of the Minister of Justice, quashed the decisions of the lower courts.

On 9 February 2010 the Municipal Court ruled that the applicant could be extradited. It stated that the fact that he had taken part in the first Chechen war could not itself establish a real danger of his ill-treatment in Russia . It referred to statement of the Czech embassy in Moscow that had disputed the existence of a well-founded fear of persecution of soldiers from the first Chechen war in Russia. It also noted diplomatic assurances by the Russian Prosecutor General who had guaranteed that the applicant would have a fair trial and would not be subjected to ill-treatment or death penalty.

On 2 March 2010 the High Court upheld the Municipal Court ’ s decision.

On 30 August 2010 the Supreme Court quashed this decision and ordered the High Court to rule on the case again. On 22 September 2009 the latter held that the applicant could be extradited under the condition of receiving appropriate guarantees from the Russian Prosecutor General Office. It further held that the applicant would be taken in custody. On 15 April 2010 the Russian Prosecutor General Office provided the requested guarantees.

On 24 February 2011 the Minister of Justice consented to the applicant ’ s extradition. The decision was served on the applicant on 3 March 2011.

On 4 March 2011 he lodged a constitutional appeal contesting his extradition. At the same time he applied for interim measure before the Court under Rule 39 of the Rules of Court, which was granted on the same day. On 18 March 2011 the Constitutional Court also issued an interim measure preventing the applicant ’ s extradition.

The prolonged custody period having passed, the applicant was released from the custody on 28 June 2011.

On 13 August 2013 the Constitutional Court adopted the Opinion of the Plenary stating that the Minister of Justice could not allow extradition when asylum proceedings, including the judicial review, were still pending.

In a judgment of 10 September 2013 it subsequently quashed the decision of the Minister of Justice of 24 February 2011, by which his extradition had been allowed, stating, inter alia , that:

“... unlike the court which can rule on extradition before the final decision in asylum proceedings is adopted, the Minister of Justice cannot give his consent to the extradition before the final decision is adopted and the proceedings are over, including a possible judicial review (the Supreme Administrative Court reached the same conclusion but its jurisdiction did not cover the review of the action of the Minister of Justice related to the extradition proceedings).”

On 5 December 2013 the Court lifted the interim measure in the light of the information provided by the Government which sufficiently guaranteed that the applicant would be given opportunity to reapply for interim measure under Rule 39 of the Rules of Court if needed.

3. Asylum proceedings

On 28 January 2009 the applicant applied for asylum in the Czech Republic. On 19 February 2009 the Department for Asylum and Migration Policy of the Ministry of the Interior rejected his application as manifestly unjustified under section 16(2) of the Asylum Act because the applicant had lodged his application for asylum only after having been threatened with extradition even though he could have done so before.

On 1 December 2009 the Municipal Court quashed this decision.

On 10 August 2010 the Supreme Administrative Court dismissed the appeal on points of law lodged by the Ministry of the Interior.

On 5 April 2013 the Ministry of the Interior refused the applicant ’ s application as manifestly unjustified stating, inter alia , that although the safety situation of Chechens in Russia was problematic, a progress had been marked in the region recently.

On 19 December 2013 the Municipal Court dismissed the applicant ’ s appeal against this administrative decision.

On 22 July 2014 the Supreme Administrative Court quashed the decision of the Municipal Court and that of the Ministry of the Interior of 5 April 2013 on the grounds that the Ministry had failed to carefully assess the evidence provided by the applicant and had incorrectly evaluated all the statements of persons knowledgeable of the case and of the situation in the country as insignificant for the applicant ’ s application. The judgment became final on 24 July 2014.

The asylum proceedings have therefore returned to the Ministry of the Interior which shall assess the applicant ’ s application again and decide on it.

COMPLAINTS

1. The applicant complain ed under Article 3 of the Convention that if extradited to the Russian Federation, he w ould be subjected to inhuman and degra ding treatment.

2. Relying on Article 6 of the Convention, the applicant further complain ed that his right to a fair trial w ould not be respected in the criminal proceedings in the Russian Federation.

THE LAW

1. The applicant complained that extraditing him to the Russian Federation would violate Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government maintained in their additional observations submitted on 11 September 2014 that the applicant had lost his victim status following the cancellation of the decision of the Minister of Justice approving his extradition, by the Constitutional Court ’ s judgment of 10 September 2013 and following the judgment of the Supreme Administrative Court of 22 July 2014 which had quashed the Ministry of Interior ’ s negative decision on international protection of 5 April 2013 and the subsequent judgment of the Municipal Court. The asylum proceedings had thus returned to the initial stage before the Ministry of the Interior. The Government added that the Constitutional Court had made it clear that the Minister of Justice could not decide on the applicant ’ s extradition pending the outcome of the asylum proceedings. According to the Government, there was currently not any decision at the national level enabling the applicant ’ s extradition.

Relying on the same facts, the Government further objected that the applicant did not exhaust all domestic remedies.

The applicant disputed the Government ’ s arguments. He stated that the judgment of the Supreme Administrative Court of 22 July 2014 could not negatively affect his locus standi , referring to the previous proceedings and decisions which had not provided him the necessary protection.

The Court reiterates that the word “victim” in Article 34 of the Convention denotes a person directly affected by the act or omission in question. In other words, the person concerned must be directly affected or run the risk of being directly affected. It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007 ‑ I).

In cases where applicants have faced expulsion or extradition the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable (see Etanji v. France ( dec. ), no. 60411/00, 1 March 2005). It has adopted the same stance in cases where execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Nasrulloyev v. Russia , no. 656/06, § 59, 11 October 2007; Dobrov v. Ukraine ( dec. ), no. 42409/09, 14 June 2011; Rakhmonov v. Russia , 50031/11, §§ 34-37, 16 October 2012; and Budrevich v. the Czech Republic , no. 65303/10, §§ 64-72, 17 October 2013).

In the instant case, the Court notes that by a judgment of 22 July 2014, the Supreme Administrative Court quashed the decision on international protection on the grounds that the Ministry of the Interior, when rejecting the applicant ’ s application for asylum, had failed to carefully assess the evidence provided by the applicant and had incorrectly evaluated all the statements of persons knowledgeable of the case and of the situation in the country as insignificant for the applicant ’ s application. This judgment, which became final on 24 July 2014, returned the procedure on international protection before the Ministry of the Interior which should continue to deal with and decide on the applicant ’ s application for asylum.

The Court further notes that the applicant cannot be extradited in the course of the asylum proceedings as it was clearly stated in the judgment of the Constitutional Court of 10 September 2013 which followed this court ’ s Plenary Opinion of 13 August 2013 concerning the extradition and asylum matter.

It follows that, as matters now stand, there is not any decision on the basis of which the applicant could be extradited and that he may not claim to be a “victim” of that act. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The above findings do not prevent the applicant from lodging a new application before the Court and from making use of the available procedures, including the one under Rule 39 of the Rules of Court, in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov v. Ukraine cited above ).

2. T he applicant further complain ed that his right to a fair trial , as guaranteed by Article 6 of the Convention, w ould not be respected in the criminal proceedings in the Russian Federation.

Referring to its above conclusion concerning the applicant ’ s complaint under Article 3 of the Convention, t he Court considers that the applicant does not have locus standi also in respect of the present complaint which is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 July 2015 .

Milan Blaško Boštjan M. Zupančič Deputy Registrar President