FIFTH SECTION

DECISION

Application no . 44344/12 Magomed Ibragimovich NALGIEV against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 24 June 2014 as a Committee composed of:

Boštjan M. Zupančič , President, Ann Power-Forde , Helena Jäderblom , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 17 July 2012 ,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Magomed Ibragimovich Nalgiev , is a Russian national, who was born in 1983 . He was represented before the Court by Mr A. Maksymov , a lawyer practising in Kyiv .

The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms Nataly Sevostianova , of the Ministry of Justice of Ukraine .

In accordance with Article 36 § 1 of the Convention, the Russian Government were invited to exercise their right to intervene in the proceedings, but they declined to do so.

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

1. Criminal proceedings against the applicant and his extradition

O n 26 March 2011 the applicant was stopped in Kyiv International Airport when attempting to fly to Egypt with false documents.

On 2 April 2011 the applicant was charged by the Russian authorities with unlawful use of arms and with the use of violence against State agents. It was noted that on 28 October 2010 the police had stopped a car containing the applicant and K. The latter was on the federal wanted list for unlawful use of arms and participation in an unlawful military unit. K. had threatened the police officers with a grenade and he and the applicant had escaped. When running away the applicant dropped his gun. On the same day the Malgobekskiy Town Court of Ingushetiya (Russian Federation) ordered the applicant ’ s pre-trial detention and the applicant was put on a wanted list circulated internationally.

On 4 April 2011 the applicant applied for refugee status in Ukraine.

On 5 April 2011 the Boryspilskyy Local Court authorised the applicant ’ s detention for 40 days pending an extradition request ( тимч а совий арешт ). The court noted that the applicant was wanted by the Russian authorities upon suspicion of having committed a crime.

Being informed about the applicant ’ s arrest, on 29 April 2011 the Prosecutor General of the Russian Federation requested the Prosecutor General of Ukraine to extradite the applicant.

On 12 May 2011 the Shevchenkivskyy District Court of Kyiv prolonged the applicant ’ s detention for up to 18 months pending extradition proceedings ( екстрадиційний арешт ) .

On 27 July 2011 the Boryspilskyy Local Court sentenced the applicant to a fine for use of forged documents.

On 23 March 2012 the Deputy Prosecutor General of Ukraine decided that the applicant could be extradited to the Russian Federation.

The applicant appealed against this decision. He stated that he would be persecuted in the Russian Federation on political, ethnic and religious grounds. The applicant underlined that he would be persecuted for his political views and this allegation, according to him, was proved by the criminal charges against him. He alleged that since he was suspected of terrorism, he would be tortured. The applicant also submitted that on 7 March 2012 he had been granted UNHCR refugee status. He also referred to various international sources, such as Amnesty International, reporting about the lack of human rights protection in Ingushetiya.

On 26 April 2012 the Shevchenkivskyy District Court of Kyiv upheld the decision of 23 March 2012 referring to the decisions of the national courts in the applicant ’ s refugee status proceedings (see below). On 17 July 2012 the Kyiv City Court of Appeal, by a final decision, upheld the decision of 26 April 2012.

On 15 August 2012 the applicant was extradited to Russia.

After his extradition, on 27 August 2012 the General Prosecutor ’ s Office of the Russian Federation informed the Ukrainian authorities that the applicant would face a fair trial and that the criminal proceedings against him would not be discriminatory; in case of need he would receive adequate medical assistance; the Ukrainian authorities would have the possibility to visit the applicant and to be present at his trail and they would be informed about the final decision in his case.

The applicant ’ s lawyer submitted that in May 2013 the applicant was found guilty of illegal possession of arms and organisation of an illegal armed group and sentenced to six years and four months ’ imprisonment.

2. Refugee status proceedings

On 22 April 2011 the Kyiv Regional Migration Service rejected the applicant ’ s request for refugee status as unsubstantiated.

The applicant challenged this refusal before the court. He complained that the above decision was not motivated. He also alleged that the Migration Service authorities had failed to question him thoroughly about his situation. The applicant stated that since 2010 he had been persecuted in Ingushetia for no reason. He believed that these persecutions were targeted against him because he was a Muslim Ingush. In October 2010 armed people had broken into the applicant ’ s house but since he was away, had arrested his brother instead. The applicant further referred to the situation in Ingushetia highlighted by Amnesty International and stated that his return to Russia would breach Article 3 of the Convention.

On 6 June 2011 the Kyiv City Administrative Court rejected the applicant ’ s complaint.

The court noted that on 20 April 2011 the applicant was questioned by the migration authorities. The applicant had substantiated his request by stating that his brother had been arrested by masked persons and that people in his region had been arrested by the law-enforcement authorities. It have been also established by the migration authorities , following questioning, that the applicant was not a member of any political, military or religious union and had not been involved in any incidents involving the use of violence arising from religious views, ethn icity, race or political belief s. Moreover, the applicant had illegally arrived in Ukraine, was stopped attempting to cross the State border with forged identity papers and had applied for refugee status only after his arrest. The court finally noted that the applicant was on a wanted list for “having committed a serious crime” and had not ma d e out his application for a refugee status.

On 23 February 2012 the Kyiv Administrative Court of Appeal upheld this decision.

On 7 March 2012 the applicant was granted UNHCR refugee status.

On 30 March 2012 the applicant ’ s lawyer lodged an appeal in cassation. He requested an extension of the time-limit for appeal since he had received the decision of 23 February 2012 on 16 March 2012 only.

On 5 April 2012 the Higher Administrative Court of Ukraine considered that the reasons invoked by the applicant ’ s lawyer did not justify the late submission of appeal and provided him with a month to substantiate his request for an extension of the time limit.

On 24 April 2012 the applicant ’ s lawyer submitted another request reiterating that he had received the copy of the appealed decision on 16 March 2012. No further information about these proceedings is available.

On 11 June 2012 the Finnish Immigration Service, following a request lodged by the UNHCR, granted the applicant refugee status in Finland.

COMPLAINTS

T he applicant complained, referring to his personal situation and to the evidence on the situation in Ingushetia available from various international sources, that he was accused of association with “insurgency groups” and that individuals who face such charges run a serious risk of being subjected to treatment prohibited by Article 3 of the Convention. The applicant stated that the Ukrainian authorities had breached Article 3 of the Convention by failing to examine carefully his situation and by extraditing him to the Russian Federation.

The applicant also complained that his extradition put him at serious risk of a flagrant denial of justice contrary to Article 6 of the Convention. His brother has faced unfair criminal proceedings and unfair trials in the Russian Federation.

The applicant complained under Article 13 of the Convention that there was no effective remedy in respect to his above complaints .

THE LAW

By letter dated 16 January 2014 the Government ’ s observations were sent to the applicant ’ s representative, who was requested to submit any observations together with any claims for just satisfaction in reply by 27 February 2014 .

On the latter date the applicant ’ s representative informed the Court that the applicant wanted to withdraw the application “in light of the documents received from the Government and in light of the most recent developments in the case” .

The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court , unanimously ,

Decides to strike the application out of its list of cases.

Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President