Published on 21 June 2021

FIFTH SECTION

Application no. 7445/21 S.A. against Ukraine lodged on 3 February 2021 communicated on 1 June 2021

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s pending extradition to Tajikistan where he is wanted on charges of participation in the activities of the so-called “Islamic State in Iraq and al Sham” (“ISIS”) and his complaints under Articles 3 and 13 in that respect.

On 5 December 2019 the applicant was arrested in Ukraine on suspicion of aggravated robbery and illegal arms possession. The Tajik authorities requested his extradition.

The applicant officially requested the police investigator in charge of his case to dispatch his request for asylum to the State Migration Service (SMS). In that request, he asked for asylum on the grounds that due to his affiliation with the Salafi movement, in case of extradition he would be exposed to a risk of ill-treatment. On 4 May 2020 the investigator sent the applicant ’ s request to the SMS. By a letter of 3 June 2020 the SMS, without examining the applicant ’ s application on the merits, instructed him to submit the application in accordance with the established procedure – that is in person or through the administration of the detention facility (the relevant provisions of domestic law were summarised in the Court ’ s communication in the case of Ahmed Noor and others v. Ukraine , no. 77647/11, lodged on 19 December 2011 ).

On 12 June 2020 the applicant lodged his asylum application with the administration of the Kyiv pre-trial detention facility. The latter sent out the applicant ’ s correspondence to the SMS on 16 June 2020 under the internal number A-2996. The applicant did not receive a reply from the SMS. On 18 December 2020 the applicant lodged a claim before the Kyiv Circuit Administrative Court, challenging the SMS ’ s failure to examine his application of 12 June 2020.

On 8 October 2020 the General Prosecutor ’ s Office of Ukraine decided to extradite the applicant to Tajikistan. The applicant lodged an appeal against that decision, which was subsequently refused by the 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 SMS the applicant had not lodged an asylum application.

On 4 February 2020 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Ukrainian Government that the applicant should not be extradited to Tajikistan.

QUESTIONS TO THE PARTIES

1. In the light of the general situation in Tajikistan and the applicant ’ s personal circumstances, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the extradition order was enforced? In particular:

( i ) does the applicant belong to a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in case of transfer to Tajikistan (see, for example and mutatis mutandis , K.I. v. Russia , no. 58182/14 , §§ 34-36, 7 November 2017)?

(ii) did the national administrative and judicial authorities fulfil their obligation, notably in view of the SMS ’ s conduct when treating the applicant ’ s attempts to lodge an asylum application, to conduct an adequate examination of the applicant ’ s allegations that he would be exposed to the above-mentioned risk in Tajikistan, as required by Article 3 of the Convention (see, for example and mutatis mutandis , Abdolkhani and Karimnia v . Turkey , no. 30471/08, §§ 111-17, 22 September 2009 and F.G. v. Sweden [GC], no. 43611/11, § 127, ECHR 2016)?

In answering this question, the Government are also requested to take into account their answers to the question 2 below.

2. Does the asylum procedure constitute an effective domestic remedy for the applicant ’ s complaint under Article 3, with automatic suspensive effect, as required by Article 13 of the Convention (see, for example, De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012)? In particular:

( i ) does the postal dispatch of the asylum application, if need be through prison authorities, constitute an asylum application which would be taken into account as a circumstance barring extradition?

(ii) had the applicant to be visited by the SMS representative in the detention facility to have his application formally accepted and to receive a formal confirmation of its lodging from the SMS for him to be considered to have lodged an asylum application for the purpose mentioned above? Is there an established and foreseeable procedure for such visits?

(iii) does the asylum application process have an automatic suspensive effect when it is launched (within the meaning of question 2 ( i ) and (ii) above):

(a) before the decision to extradite is taken by the General Prosecutor ’ s Office;

(b) after the decision to extradite is taken but while the appeal against that decision is pending before the domestic courts;

(c) after the final court decision upholding the extradition decision?