Communicated on 7 February 2017

FIFTH SECTION

Application no. 63044/16 Zelimkhan Kureyshevich BELKHAROYEV against Ukraine lodged on 4 November 2016

STATEMENT OF FACTS

The applicant, Mr Zelimkhan Kureyshevich Belkharoyev, is a Russian national, who was born in 1991. His curr ent whereabouts are unknown. He is represented before the Court by Ms I. Biryukova, a lawyer practising in Podolsk (Russia).

The circumstances of the case

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

1. The applicant ’ s personal situation and account of relevant background facts

The applicant is an ethnical Ingush and prior to his departure from Russia he lived in Ingushetia. He is a professional wrestler of international renown, who represented Russia in various international competitions and won several medals. The applicant describes himself as a devoted Sunni Muslim, whose vision of Islam differs from the mainstream Sufi Islam officially endorsed in the North Caucasus.

According to him, in 2012 officials of Russian intelligence services started threatening him with a view to making him leave Russia, as otherwise he would be “crashed and thrown into prison”. Thus, on two occasions in 2012 persons in military clothing had come twice to his house and had conducted a search, without explanations. The applicant and his father had been placed, in a rude manner, with their faces against the wall.

Fearing for his own and his relatives ’ safety, on 23 June 2013 the applicant left for Turkey, where he envisaged continuing his professional sport activities.

In 2014 the applicant ’ s father died, but the applicant was scared to attend the funeral given what he considered to amount to implicit threats from the authorities. Thus, on 21 January 2014 unidentified persons threw an object looking like a self-made explosive device in the house of the applicant ’ s mother. The police conducted a search, but did not open criminal investigation into the matter or give the case any other follow-up. Instead, they allegedly requested the applicant ’ s mother to pass him their “best regards” and to ask him to stay where he was.

As submitted by the applicant, from 23 June 2013 to 17 May 2014 he was in Turkey, and thereafter, from 17 May 2014 to 22 April 2015, he was in Egypt. Those dates of his entry/departure to/from the mentioned states are indicated in his passport.

2. Criminal proceedings against the applicant in Russia

On 3 April 2014 the Federal Security Service of the Russian Federation (“the FSB”) instituted criminal proceedings against the applicant under Article 208 § 2 of the Russian Criminal Code ( participation in an illegal armed formation on a territory of a foreign state running counter to the interests of the Russian Federation). More specifically, it was suspected that the applicant had entered Syria on 23 June 2013 and that starting from 2 November 2013 he had been a member of Jaish al-Muhajireen wal-Ansar (Army of Emigrants and Supporters), fighting against the government forces in the vicinity of Aleppo. The investigator relied on the reports of questionings of several persons incriminating the applicant.

On 18 April 2014 the FSB opened another criminal case against the applicant in respect of the same circumstances, this time under Article 205.3 of the Russian Criminal Code (undergoing training with a view to committing crimes, in particular, under Article 208 of the Criminal Code).

On 24 April 2014 the above two cases were joined.

On 2 May 2014 formal charges were brought against the applicant.

On 11 June 2014 he was placed on an international list of wanted persons.

3. Circumstances of the applicant ’ s arrest in Ukraine and related events

On 13 October 2015, the applicant was arrested at the “Boryspil” International Airport (Kyiv, Ukraine), when he attempted to leave for Amman with a false Tajik passport. On 16 October 2015 he was placed in the Chernigiv temporary detention centre for foreigners and stateless persons, with a view to establishing his identity and his eventual deportation.

Subsequently, in the course of his interview with the Migration Service officials (see “Asylum proceedings” below), the applicant explained that his Russian passport for travelling abroad (in Russia, like in many post-Soviet countries, there are two types of passport: an “internal” one and that for travelling abroad) had expired in September 2015 and that he was scared to apply to the Russian authorities for its renewal.

According to the information sent by the Security Service of Ukraine (“the SBU”) to the Government ’ s Agent on 10 November 2016, the applicant identity was established by chance in the following circumstances. On 15 August 2015 the SBU opened criminal investigation against a group of unnamed individuals pledging allegiance to the “Islamic State” on account of illegal transfer of foreign terrorist insurgents via the territory of Ukraine. On 4 November 2015, when conducting a search in relation to the above criminal proceedings at the residence of one of the suspects, the investigators seized a number of various firearms, including explosive devices, together with numerous documents including a passport issued in the name of Mr Belkharoyev. The applicant was subsequently identified as the passport holder.

In its letter to the Government ’ s Agent of 19 January 2017, the SBU gave some further details and a factual update regarding the criminal investigation mentioned above. It noted that several Russian nationals from the North Caucasus were suspected of creation of a terrorist group (under the Ukrainian Criminal Code). The trial in respect of one of them had been completed: a verdict had been pronounced and had become final. Four other persons, who had not been among the organisers of the criminal group and who had cooperated with the investigation, had been absolved from criminal liability. The trial of one other suspect was ongoing. As regards the applicant, the investigation did not collect sufficient evidence to advance any criminal charges against him in Ukraine. No further information is available regarding the criminal proceedings in question.

4. Asylum proceedings

On 18 November 2015 the applicant brought his first asylum request. On the same date it was refused given that the applicant had falsely presented himself (he provided the identity documents issued in the name of another person).

On 14 December 2015 the applicant lodged another asylum request. He submitted that criminal charges against him in Russia were concocted on the ground of his religious views. The applicant described the events prior to his departure from Russia as summarised above (see “ The applicant ’ s personal situation and his account of relevant background facts”).

In the interview related to his asylum application the applicant claimed that he had been persecuted on religious grounds as he was a Sunni Muslim “following all the traditions of Islam”, who did not share the Sufi Islam imposed in the North Caucasus. He noted that, while all his family members were Sunni Muslims, he went to the mosque more often. In substantiation of his allegation about the imposition of Sufi Islam in Ingushetia, the applicant referred to numerous speeches by the Head of the Chechen Republic Ramzan Kadyrov, according to which the Sufi Islam was the only view acceptable. The applicant argued that Mr Kadyrov ’ s words had a serious impact for the entire North Caucasus. The applicant replied in the negative to the question whether he belonged to any political, religious, military or non-governmental organisation .

On 16 January 2016 the Ukrainian Migration Service rejected the applicant ’ s asylum request. As stated in its conclusion, the applicant ’ s account appeared trustworthy, but did not disclose any reasons for granting him asylum. The incidents, which had allegedly taken place in 2012 and 2014, could hardly be related to the applicant ’ s religious views, as none of his family members or friends with similar views suffered any persecution or threats. It appeared that the applicant ’ s departure from Russia had been driven by his wish to develop his sports career rather than by fear of persecution on religious grounds. The officials of the Migration Service did not consider the records of Mr Kadyrov ’ s speeches to support the applicant ’ s allegations. They observed that he did not provide any information specific for Ingushetia and analysed a report of International Crisis Group (ICG) “ The North Caucasus: The Challenges of Intertation (II), Islam, the Insurgency and Counter-Insurgency ” (19 October 2012). The Migration Service officials quoted the following part of the cited report:

“The state generally supported traditional Muslims and in effect banned Salafism, deepening the sectarian schism. It saw the “hunt for Wahhabis” as part of an anti-terrorist struggle, especially after the August 1999 incursion of Chechen insurgents into Dagestan. Officials in Dagestan, Ingushetia, Kabardino-Balkaria and Karachay-Cherkessia created lists of Salafis in every district. Police referred to these after an incident and allegedly systematically detained, intimidated and tortured those on them. This pressure radicalized the Salafi community and fed the insurgency.”

It was noted in the conclusion that the applicant had repeatedly identified himself as a Sunni Muslim and that there was no information about the authorities ’ ban on that particular movement. The Migration Service referred in that connection to several interviews by the Head of Ingushetia Mr Yevkurov and the official web-site of the authorities of Ingushetia stating that there were no religious conflicts in that republic.

The applicant challenged the above refusal before the courts reiterating his earlier argumentation. He maintained, in particular, that he was studying religious literature in Arab, praying five times per day, following Ramadan, wearing “adequate clothing” and following ascetic life in general. The applicant submitted that people like him were broadly perceived as Wahhabis in Russia and were subjected to various persecutions on that ground. He emphasised that the criminal proceedings against him were fabricated and that he would risk torture or even killing on religious grounds if removed to Russia. The applicant denied his involvement in the crimes he was charged with and stated that he had never been to Syria.

The applicant ’ s lawyer requested the Associate Professor in Religious Studies and Theology of the National University of Ostroh Academy (Ukraine) to give his opinion: as to which religious movement the applicant belonged, as to whether people like the applicant were subjected to persecutions on religious grounds in Russia, and as to whether he risked ill-treatment if returned to Russia. The expert was requested to answer those questions on the basis of the description of the applicant ’ s views and clothing and his account of events. Specifically, the applicant was described as a deeply believing Muslim (see the summary in the paragraph above). He is wearing a beard, on his head he has a black skullcap, his clothing is simple and his trousers are rather short. He does not recognise any translations of religious literature from Arab. Furthermore, as noted in the description, the applicant considers all human beings equal and does not accept any violence on religious grounds.

On 23 March 2016 the expert issued his conclusion, according to which the applicant belonged to Salafi Muslims who were severely persecuted in Russia and that he would risk torture or killing in case of his return to Russia. The above report was included in the case file in the asylum proceedings brought by the applicant.

On 30 March 2016 the Chernigiv Circuit Administrative Court found against the applicant, having upheld the conclusions and reasoning given by the Migration Service.

The applicant, acting through his lawyer, appealed. Relying on the expert report of 23 March 2016, he submitted for the first time that he was a Salafi Muslim. The lawyer noted that the first-instance court had failed to give any assessment to that report.

On 26 May 2016 the Kyiv Administrative Court of Appeal rejected the applicant ’ s appeal. As regards the expert report relied on, the appellate court held that it was purely speculative and not based on any evidence.

On 22 June 2016 the Higher Administrative Court upheld the lower courts ’ decisions stating that the applicant failed to substantiate that he faced a real threat to his life and personal security in his country of origin.

5. Extradition proceedings

On 19 November 2015 the applicant was apprehended by the Ukrainian police as a person appearing on the international list of wanted persons.

On 21 November 2015 the Ripky Town Court in the Chernigiv region (“the Ripky Court”) placed him under provisional arrest.

On 16 December 2015 the Prosecutor General ’ s Office of the Russian Federation requested its Ukrainian counterpart to extradite the applicant given the criminal charges against him. The Russian authorities guaranteed that their request was not aimed at persecuting the applicant on political, racial, ethnical or religious grounds. They further stated that he would be afforded the requisite legal defence facilities and pledged that he would not be subjected to ill-treatment contrary to Article 3 of the Convention.

On 28 December 2015 the Chernigiv Novozavodskyy District Court ordered the applicant ’ s arrest pending extradition. On 6 January 2016 the Chernigiv Regional Court of Appeal, however, quashed that decision and released the applicant. On 13 January 2016 the Ripky Court once again ordered the applicant ’ s detention pending extradition. On 21 January 2016 the Regional Court of Appeal upheld that decision. The case file contains neither copies of the above decisions nor any further details in that regard.

On 31 August 2016 the Prosecutor General ’ s Office of Ukraine (“the PGOU”) ordered to extradite the applicant to Russia. It stated that the extradition inquiry had not established any legal or other impediments to the requested measure and that the charges against him were not politically motivated. The PGOU noted that, as confirmed by the Ministry of Foreign Affairs of Ukraine, the applicant was accused of membership in a terrorist organisation associated with al-Qaeda. The offences, of which he was accused in Russia, were also criminally punishable in Ukraine (participation in a terrorist group or organisation and abetting terrorist acts). Furthermore, the State Security Service of Ukraine submitted that it had no information about the applicant ’ s belonging to any religious organisation or opposition party persecuted in Russia. Lastly, it was observed that the applicant ’ s asylum request had been rejected by the Ukrainian courts and that his health condition allowed proceeding with his transfer.

The applicant challenged the above decision before the courts. He submitted that the criminal charges against him were politically motivated given the wording of the respective provisions in the Russian Criminal Code (“running contrary to the interests of the Russian Federation”). He further observed that the organisation in question had been recognised as terrorist only in August 2015, whereas he had been in Ukraine starting from April 2015. Accordingly, he argued that his prosecution was retrospective. Lastly, he stated that there had yet been no final decision of the Ukrainian judiciary in respect of his asylum request.

On 16 and 26 September 2016 the Novozavodskyy Court and the Regional Court of Appeal, respectively, ruled against the applicant. They stated that the extradition order was lawful and well-grounded. Furthermore, meanwhile the applicant ’ s asylum request had been rejected by a final judicial decision.

On 4 and 7 November 2016 the applicant requested the Court to suspend his extradition to Russia under Rule 39 of the Rules of Court. On 7 November 2016 the Court temporarily granted that request and asked the parties for further factual information. On 2 December 2016 the interim measure was prolonged until the end of the proceedings before the Court.

On 30 December 2016 the Kharkiv Zhovtnevyy District Court (meanwhile the applicant had been transferred from Chernigiv to Kharkiv, closer to the Russian border) ordered the applicant ’ s house arrest instead of the earlier applied detention as a preventive measure pending his extradition. The investigating judge noted that the maximum term of the applicant ’ s detention was to expire on 3 January 2017 and that there remained a need for a preventive measure. Given that starting from 30 November 2016 the applicant rented a room in Kharkiv (in the house of the lawyer representing him in Ukraine, Mr M.), the house arrest was considered a feasible option. The applicant was therefore placed under 24 ‑ hour house arrest with an electronic tracking device, till 28 February 2017 (inclusive).

6. The applicant ’ s disappearance

On 19 January 2017 the applicant disappeared. The Ukrainian Government informed the Court about that on 25 January 2017. They considered that the applicant had absconded.

According to the information sent by the Kharkiv Regional Prosecutor ’ s Office to the Prosecutor General ’ s Office, on 19 January 2017 at 8.20 p.m. the police was alerted that the electronic tracking device worn by the applicant had gone off.

According to the lawyer representing the applicant in the proceedings before the Court, at 12.54 p.m. on that day she had a telephone conversation with the applicant who had been enquiring about any news from the Court. As subsequently Mr M. informed the applicant ’ s representative, he had come home in the evening on 19 January 2017 and had discovered the electronic tracking device, without any sign of the applicant. All the applicant ’ s belongings, including his shoes and mobile phone, were there. Mr M. immediately informed the police of what he considered to be the applicant ’ s abduction. The police arrived with dogs, which followed traces from the house to a tram stop nearby.

The applicant ’ s lawyer further noted that at the time of the events the applicant had a dental abscess disfiguring his face. Having regard to that and noting that the applicant did not know the area, had no documents or money, she suspected that he had been abducted. She also observed that the tracking device had been broken without any signal having been sent to the police. According to her, the applicant would not have been able to break it himself.

COMPLAINT

The applicant complained that his extradition to the Russian Federation would entail a violation of his rights under Article 3 of the Convention.

REQUEST FOR FACTUAL INFORMATION AND QUESTIONS TO THE PARTIES

1. The parties are requested to provide any information and documents available on (i) the circumstances of the applicant ’ s disappearance and his whereabouts, and (ii) actions undertaken with a view to elucidating the circumstances under which he disappeared. In that context the parties are requested to indicate whether (i) the applicant ’ s relatives and/or lawyers raised their allegation of his possible abduction before Ukrainian authorities and, if so, (ii) what investigative steps have been taken and what is the conclusion in that regard.

2. Are there any grounds for striking the application out of the Court ’ s list of cases or declaring it inadmissible?

3. In the light of the applicant ’ s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention in case of his extradition to the Russian Federation?