FIFTH SECTION

CASE OF S.A. v. UKRAINE

(Application no. 7445/21)

JUDGMENT

STRASBOURG

24 February 2022

This judgment is final but it may be subject to editorial revision.

In the case of S.A. v. Ukraine,

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

Stéphanie Mourou-Vikström, President, Lado Chanturia, Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 7445/21) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 February 2021 by a Tajikistani national, S.A., born in 1993 and detained in Kyiv (“the applicant”) who was represented by Ms S. Butenko, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, their Agent, Mr I. Lishchyna, and then by their Acting Agent, Ms O. Davydchuk;

the decision not to have the applicant’s name disclosed;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the decision to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court;

the parties’ observations;

Having deliberated in private on 27 January 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1. The application concerns the applicant’s complaints under Articles 3 and 13 of the Convention that the domestic authorities failed to examine his claims that he would face a risk of ill-treatment if extradited to Tajikistan.

2 . The applicant was arrested and remanded in custody in Ukraine in December 2019 on suspicion of the offences of aggravated robbery and illegal arms possession committed in the country.

3. The Tajik authorities requested the applicant’s extradition on charges of involvement in the activities of the terrorist groups Islamic State of Iraq and the Levant and Al-Nusra Front, active in Syria. They provided assurances that the applicant would not be subjected to ill-treatment.

4 . While detained at the Kyiv Pre-Trial Detention Facility, the applicant filled in and signed a standard asylum application form, approved for use by the Ministry of the Interior. In it the applicant stated that he feared persecution in Tajikistan on the basis of his Salafist religious beliefs and practice, and that it was for that reason that criminal proceedings had been instituted against him in Tajikistan.

5. On 4 May 2020 the police department in charge of investigating the Ukrainian criminal case in respect of the applicant sent the application form to the Kyiv Regional Office of the State Migration Service (“the Migration Service”).

6. The Migration Service, without examining the asylum application on the merits, instructed the applicant (by letter of 3 June 2020) to submit the application in person or through the prison administration. It also sent him a new blank asylum application form.

7. According to a letter from the prison administration, in June 2020 the applicant submitted a new asylum application form to the prison administration. The latter posted it to the Migration Service on 16 June 2020. It appears that the document was sent without any form of postal tracking. The applicant received no reply. According to the Government, the Migration Service did not receive the relevant letter and no record of its delivery could be obtained from the post office.

8. The applicant lodged a claim before the Kyiv Circuit Administrative Court, challenging the Migration Service’s failure to examine his application. The proceedings are pending.

9 . On 8 October 2020 the General Prosecutor’s Office of Ukraine (“the GPO”) decided to extradite the applicant to Tajikistan.

10 . The applicant lodged an appeal against the extradition decision. He argued in particular that his asylum application had not been duly accepted and considered, and that he had been forced to initiate court proceedings in order to compel to examine his application. In a supplement to his appeal he also stated in general terms that he faced a risk in Tajikistan of ill-treatment prohibited by Article 3 of the Convention.

11 . The appeal was refused by a final decision of the Kyiv Court of Appeal of 2 February 2021. The domestic courts ruled that the decision to extradite the applicant had been lawful, in particular given that, according to the information provided by the Migration Service, the applicant had not lodged an asylum application. The fact that the applicant had appealed to the administrative courts against the refusal to accept his asylum application was not a barrier to extradition under the law.

12 . On 12 February 2021 the GPO informed the Government Agent’s office that it had decided to postpone the applicant’s extradition until the delivery of a final decision in the Ukrainian criminal case against him, and until he served his sentence or was released from serving any possible sentence (under Article 592 § 1 of the Code of Criminal Procedure).

13. Before the Court the applicant presented the complaints set out in paragraph 1 above.

14 . The Government disputed the applicant’s allegations. They submitted in particular that the current rules governing the examination of asylum applications did not contain any provisions which would require the Migration Service officials to visit detention facilities to accept asylum applications. However, in practice, where a detainee submitted a duly formulated request for asylum, the Migration Service took measures to obtain permission from the relevant prosecutor’s office to visit the applicant in the detention facility and accept the application. In 2020 the applicant, through the prison administration, had sent a letter to the Migration Service but the Service had not received it. The Convention did not require the State to have a perfectly functioning postal system.

THE COURT’S ASSESSMENT

15. The Court notes that the applicant’s extradition has been postponed for the duration of the criminal proceedings against him and the serving of any possible sentence in Ukraine (see paragraph 12 above). However, the Court has not been informed of the current state of those criminal proceedings. There is no indication that a sentence has been imposed on the applicant which would result in his not being subject to extradition for the duration of its execution. On the contrary, the proceedings against the applicant could be discontinued at any point, which would render the extradition decision immediately enforceable.

16. In such circumstances there is no reason to consider that the risk of extradition is no longer imminent or to examine the question of whether it would be justified to strike the application out of the Court’s list of cases on those grounds (see, for relevant principles, Khan v. Germany (striking out) [GC], no. 38030/12, § 34, 21 September 2016).

17. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

18. A summary of the relevant principles of the Court’s case-law concerning Article 3 can be found in M.S. v. Slovakia and Ukraine (no. 17189/11, §§ 113-16, 11 June 2020, with further references).

19. The Court considers that in view of the human rights situation in Tajikistan (see, for example, K.I. v. Russia , no. 58182/14, 7 November 2017; R.R. and A.R. v. Russia [Committee], nos. 67485/17 and 24014/18, 8 October 2019), and the applicant’s submissions to the domestic authorities (see paragraph 4 above ), he had an “arguable claim” that he might face a risk of treatment contrary to Article 3 of the Convention in Tajikistan.

20. In a case like the present one, where the domestic authorities did not conduct any meaningful examination of the potential risk of ill-treatment in the country of destination, it can be appropriate to take a procedural approach to the examination of the complaint under Article 3, the primary question being whether the applicant had effective access to a procedure in the context of which his claims of risk would be examined in line with the Convention requirements (see, mutatis mutandis , M.A. v. Belgium , no. 19656/18, §§ 87 and 88, 27 October 2020).

21. The domestic law provided for two potential forums in which the applicant’s complaints of potential risk in Tajikistan could be examined: (i) the asylum procedure, including appeals against any adverse decision on the asylum application, and (ii) the appeal to the courts against the extradition decision (see U.S. v. Ukraine (dec.) [Committee], no. 61820/19, § 37, 20 May 2021).

22. The Court does not rule out that either of those two remedies taken separately could be effective. However, the present case demonstrates that in practice the courts examining appeals against extradition decisions may consider, as they did in the present case, the asylum application process to be the primary forum for the examination of any risk of ill-treatment. They rely on the conclusions reached in the asylum procedure or the absence thereof, without conducting any substantive analysis of the matter themselves (see another example of such an approach in U.S. v. Ukraine , cited above, § 38).

23. This approach is not in itself problematic as long as the applicant has effective access to the asylum procedure. However, because of the way the Migration Service treated the applicant’s attempts to lodge an asylum application, that remedy, which was recognised as key by the domestic authorities, proved ineffective.

24. Under domestic law an asylum application, to be validly lodged, must be submitted to an authorised official (currently a Migration Service official) by an asylum-seeker in person. Submission through a representative is apparently not allowed for adult applicants (this follows from sections 1 and 7 of the Refugees and Persons in Need of Subsidiary Protection Act). Only once this official accepts the application and issues an application certificate, does the pending application and any appeals against its rejection exercise an automatic suspensive effect on extradition (under Articles 589 §§ 1 and 2 and 590 § 4 of the Code of Criminal Procedure).

25. Since under existing regulations there are no officials authorised to accept asylum applications in criminal justice detention facilities where the applicant and others subject to extradition procedures are generally detained, the Migration Service needed to arrange for a visit to the facility in order to accept his application.

26 . However, there are neither any rules nor any established procedures in place for arranging such visits and accepting asylum applications from detainees there (see paragraph 14 above). In the absence of any such framework, the Migration Service failed, for no apparent reason, to arrange a visit to the applicant and accept his asylum application, despite his having clearly manifested his desire to lodge it (see paragraph 4 above).

27. The Government’s assertion that the postal service had apparently failed to deliver the applicant’s second asylum request from the prison administration to the Migration Service does not change the Court’s assessment. Indeed, that was the applicant’s second communication to the Migration Service expressing a desire to obtain asylum, and it is unclear why the first such communication had not been sufficient.

28 . As a result, the applicant’s allegations concerning the risk of ill ‑ treatment in Tajikistan were not substantively examined by any domestic authority.

29. These considerations are sufficient for the Court to conclude that there would be a violation of Article 3 of the Convention in its procedural aspect if the applicant were to be removed from Ukraine in the absence of a substantive examination of the risk he allegedly faces in Tajikistan (see K.I. v. France , no. 5560/19, § 146, 15 April 2021).

30. Such an examination must involve a substantive examination of the applicant’s allegations of the risks he faces in Tajikistan, with the applicant being given an effective opportunity to challenge any possible unfavorable decision. In the current state of the domestic law, the most appropriate forum for such an examination, in the applicant’s situation, would be the acceptance and substantive examination of his asylum application.

31. Having regard to the reasoning which has led it to conclude that Article 3 of the Convention was breached in the present case, the Court finds nothing that would justify a separate examination of the same facts from the standpoint of Article 13 of the Convention (see, for example, Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 179, 21 November 2019, and M.S. v. Slovakia and Ukraine , cited above, § 131).

32. The Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final. Accordingly, the measure indicated to the Government under Rule 39 ceases to have any basis. However, it remains open to the applicant to lodge a new request for interim measures should the situation so warrant.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.

34. The Government consider that the claim was unjustified and fully unsubstantiated.

35. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant (see K.I. v. France , cited above, § 155).

FOR THESE REASONS, THE COURT, UNANIMOUSLY ,

Done in English, and notified in writing on 24 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President