FIFTH SECTION

Application no. 14021/10 Ali Dzokajevic ATSAEV against the Czech Republic lodged on 10 March 2010

STATEMENT OF FACTS

The applicant, Mr Ali Džokajevič Atsaev , is a Russian national who was born in 1966 and lives in the Czech Republic . He is repres ented before the Court by Mr M. Čechovský , a lawyer practising in Prague.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, 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 of the territory. His name was entered on the list of Chechen fighters in the first Chechen war. As a result he was twice, allegedly arbitrarily, detained by Russian authorities. His second detention was in the town of Ufa and lasted one month. On both occasions his friends allegedly secured his release by bribing the police officers.

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 Prosecutors ’ Office of the Russian Federation requested the Czech Republic to extradite the applicant who had been charged with hiring, on an unspecified date, an assassin to murder a certain I.M. The victim was murdered on 4 April 2002 in Moscow . 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 Prosecutors ’ 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 criminal chamber of 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. The applicant 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 holding that they were premature because the Municipal Court had only relied on the applicant ’ s submissions and had not sought any other evidence such as opinions of the Ministry of Foreign Affairs, Ministry of the Interior, embassy or NGOs.

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 submissions 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 . The court also noted diplomatic assurances by the Prosecutor General of the Russian Federation who had guaranteed that the applicant would have a fair trial and would not be subjected to ill-treatment or death penalty. The court did not state whether the assurances included any monitoring of compliance with them. It further referred to the opinion of the Department for Asylum and Migration Policy of the Ministry of the Interior ( odbor azylové a migrační politiky ministerstva vnitra ) which had not found that the applicant had a well-founded fear of persecution in Russia . The court rejected as unnecessary the applicant ’ s request to hear a number of witnesses and read out statements of employees of the Radio Free Europe / Radio Liberty.

On 2 March 2010 the High Court upheld the Municipal Court ’ s decision. It noted a 1999 amnesty law in Russia that had pardoned all participants in the first Chechen war and the fact that the applicant had lived and worked in Russia freely until 2003. It added that the report of Amnesty International on conditions of detention in Russia submitted by the applicant contained only general information and did not prove any individual risk for the applicant.

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

The applicant lodged a constitutional appeal contesting his extradition. On 18 March 2011 the Constitutional Court issued an interim measure staying the applicant ’ s extradition. The proceedings are pending.

3. Asylum proceedings

On 28 January 2009 the applicant applied for asylum in the Czech Republic . He explained that he had not applied for asylum earlier because he was waiting for all his family to leave Russia and also because he would be identified as Ali Atsaev and liable to extradition to Russia . He also stated that he had used false identity because he was sought by the Russian secret service.

On 19 February 2009 the Department for Asylum and Migration Policy of the Ministry of the Interior rejected his request 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. It thus did not examine whether the applicant ’ s fear of ill-treatment in Russia was well-founded or not.

On 1 December 2009 the administrative chamber of the Municipal Court quashed this decision holding that by applying section 16(2) of the Asylum Act the Ministry had failed to consider the merits of the applicant ’ s request. It referred to a judgment of Supreme Administrative Court no. 5 Azs 24/2008 from 15 August 2008, in which it had held that section 16(2) of the Asylum Act could be applied only when the asylum application had been submitted with the exclusive aim to avoid an impending extradition.

The Ministry of the Interior lodged an appeal on points of law arguing that the threat of the applicant ’ s ill-treatment in Russia had been sufficiently scrutinised in the extradition proceedings and thus a new examination would be superfluous and in most cases without any effect for the asylum seeker as pending asylum proceedings did not bar extradition.

On 10 August 2010 the Supreme Administrative Court dismissed the appeal on points of law. The court stressed that decisions of criminal courts on extradition were not enough to rule out that the applicant ’ s right would not be violated in the target country noting that the two proceedings had different aims. It held that it was primarily the Ministry of the Interior in the asylum proceedings that had to ensure that the Czech Republic did not breach its international obligation of non- refoulement . It added that the Minister of Justice should not give his consent to extradition while asylum proceedings were pending.

On an unspecified date the applicant lodged an action against the Ministry of Interior complaining of delays in the asylum proceedings. On 5 December 2012 the Prague Municipal Court ordered the Ministry to issue a decision within 60 days.

B. Relevant domestic law

Asylum Act (Act no. 325/1999)

Under section 16(2) an application for asylum shall also be rejected as manifestly unjustified if it is apparent from the applicant ’ s procedure that he or she has lodged it with the aim to avoid an impending expulsion, extradition or transfer for criminal prosecution to a foreign country although he or she might have applied for granting of asylum earlier.

C. Relevant international documents regarding the treatment of Chechens in the Russian Federation

1. PACE Resolution 1738(2010) on Legal remedies for human rights violations in the North Caucasus region, 22 June 2010

In the resolution the Assembly observed that “the situation in the North Caucasus region, particularly in the Chechen Republic, Ingushetia and Dagestan, constitute[d] ... the most serious and most delicate situation from the standpoint of safeguarding human rights and upholding the rule of law, in the entire geographical area covered by the Council of Europe”. It noted that in the Chechen Republic, “the autho rities continue[d] to nurture a climate of pervading fear” and that “the human rights situation, as well as the functioning of justice and the democratic institutions, nonetheless continue[d] to arouse the keenest anxieties: disappearances of government opponents and defenders of human rights still remain[ ed ] widely unpunished and [were] not elucidated with due diligence, ... , and the judicial organs plainly [did] nothing about the misdeeds of the security forces.”

The resolution also called on all Council of Europe member countries to “guarantee adequate protection to refugees from the North Caucasus who ha[d] been harboured on their territory, and consider with the greatest care and caution requests concerning their extradition, in compliance with the European Convention on Human Rights.“

2. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”)

On 13 March 2007 the CPT issued a public statement concerning the Chechen Republic of the Russian Federation under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in view of the failure of the Russian authorities to improve the situation in the light of the Committee ’ s recommendations. The recommendations covered in particular the issues of ill-treatment by law-enforcement officials and prison staff in Chechnya , unlawful detentions and the effectiveness of investigations into cases involving allegations of ill-treatment.

The CPT decided to make public the relevant extracts of its visit report, which also included the following information:

“In the course of the visits to the North Caucasian region in 2006, the CPT ’ s delegation once again received many credible allegations of recent ill-treatment of detained persons by members of law enforcement agencies and security forces in the Chechen Republic. The ill-treatment alleged was frequently of such a severity that it could be considered to amount to torture; the methods involved included extensive beating, asphyxiation using a plastic bag or gas mask, electric shocks, suspension by the limbs, hyperextension and, more rarely, the infliction of burns by cigarettes, lighters or other devices. Accounts were also received of threats of execution or of sexual abuse in order to obtain a confession or information.

The general picture which emerged was that any detained person who did not promptly confess to the crime of which he was suspected (or provide information being sought by those responsible for the detention) would be in imminent danger of being ill-treated.”

The CPT conducted subsequently several visits to Russia . Report from a visit in April and May 2011 showed that the ill-treatment of detainees especially in Dagestan and Chechnya persists. The visit documented credible allegations of torture/severe ill-treatment and found evidence of injuries that were consistent with those allegations.

3. Report by Thomas Hammarberg , Commissioner for Human Rights of the Council of Europe, following his visit to North Caucasus region of the Russian Federation from 12 to 21 May 2011

The Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions, disappearances and ill-treatment of persons deprived of their liberty in the North Caucasus . The report noted the following:

The issue of torture and ill-treatment of persons deprived of their liberty has been the subject of a number of allegations brought to the Commissioner ’ s attention in relation to various parts of the North Caucasus . The information indicative of ill-treatment he received is of a serious nature and requires decisive action on the part of the authorities. Most of the allegations received related to treatment of persons by law enforcement officials; however, some allegations of physical ill-treatment related to a pre-trial establishment (SIZO). The Commissioner also received documents from lawyers of persons remanded in custody which are indicative of inaction on the part of prosecutorial authorities in the face of clear allegations and other information concerning ill-treatment.

4. United Nations bodies

In its Concluding Observations of 2012 the Committee against Torture was concerned over “persistent reports of the widespread practice in the State party of torture and ill-treatment of detainees, including as a means to extract confessions”.

In its Concluding Observations of 2009, the Human Rights Committee was “concerned about the continuing substantiated reports of acts of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement personnel and other State agents, including of persons who [were] in police custody, pre-trial detention and prison.” It was further concerned about the lack of effectiveness of investigation of the incidents of ill-treatment.

In its Concluding Observations of 2008, the Committee on the Elimination of Racial Discrimination was concerned that ethnic minorities such as Chechens reportedly continued to be subject to disproportionately frequent identity checks, arrests, detentions and harassment by the police and other law enforcement officers.

The United Nations Special Rapporteur on Torture requested a visit to Russia in 2006 but he was unable to do so because “ at a very late stage in the preparations, he was informed by the Government [of Russia] that certain elements of his Terms of Reference for carrying out visits to detention facilities would contravene Russian Federation law, particularly with respect to carrying out unannounced visits, and holding private interviews with detainees.” The planned visit has not been conducted until today.

D. NGO ’ s reports regarding the treatment of Chechens in the Russian Federation

1. Report of the NGO Memorial “On the situation of residents of Chechnya in the Russian Federation, October 2007 – April 2009”, 4 June 2009

The report documented numerous instances of inhuman treatment, amounting sometimes to torture, of prisoners of Chechen origin in Russian prisons, including those that returned to Russia from abroad. It noted that former Chechen fighters, in particular those in prison where some of the guards were former Russian soldiers that had fought in the Chechen wars, were especially at risk:

The report also found:

“Mass fabrication of criminal cases became the most cruel and cynical form of persecuting Chechens.

The standard mechanism of persecution is simple: when performing housing or body search, police officers plant a small amount of narcotics, bullets, a grenade, or explosives, and then, after having detained the citizen, they wring a confession out of him or her. At that, there is often no other grounds to check papers, do a body or housing search than close attention of law enforcement bodies to persons of a specific ethnic background.”

2. Amnesty International

In its 2012 Annual Report regarding Russia Amnesty International noted that “[r] eports of torture and other ill-treatment remained widespread. Allegations were seldom effectively investigated and documented injuries were often dismissed as resulting from the legitimate use of force. The successful prosecution of perpetrators was rare. The denial of adequate medical care in custody was widely reported, and was allegedly used to extract confessions. Convicted prisoners frequently reported being subjected to violence, by both prison officials and inmates, shortly after their arrival in prison.”

In its International Report 2010 it also especially noted (and further elaborated in its Briefing to the Human Rights Committee from October 2009) a serious and continuing ill-treatment of a Chechen prisoner Z.Z. in several Russian prisons. Z.Z. returned to Russia from Austria and was suspected by Russian security services to be a militant and terrorist.

3. European Council on Refugees and Exiles (“ECRE”) Guidelines on the Treatment of Chechen Internally Displaced Persons (IDPs), Asylum Seekers and Refugees in Europe, March 2011

In its most recent report on the treatment of Chechens in Russia , ECRE noted many reports of torture and inhuman treatment of Chechens in detention and stated the following:

“NGOs and Chechen refugee groups have raised concerns about several extradition cases of Chechens to Russia because of fears that the person to be extradited would be tortured or disappear upon return. NGOs have frequently reported cases of falsified evidence against Chechens in Russia , whilst many acts of violence, murder and disappearances allegedly carried out by the authorities are not investigated. There is a large body of evidence of gross human rights violations and “secret” prisons in Chechnya as well as reports of mistreatment of Chechens in prisons and penal colonies in other regions of the Russian Federation . Any state party to the European Convention on Human Rights or other relevant international human rights legislation, considering extraditing a Chechen to Russia would have to be certain, not only that the evidence submitted by the requesting state represented a genuine case of prosecution, rather than persecution, but also that the person extradited would not suffer torture or inhuman or degrading treatment upon return.”

The report noted in particular several cases of ill-treatment of Chechens in Russia that had been expelled there or extradited from other European countries.

E. Other reports regarding the treatment of Chechens in the Russian Federation

1. The United States Department of State 2011 Human Rights Report on Russia

The report noted that there were numerous, credible reports that law enforcement personnel engaged in torture, abuse, and violence to coerce confessions from suspects, and there were allegations authorities did not consistently hold officials accountable for such actions. There is no law defining torture, and prosecutors are therefore only able to bring charges of simple assault or exceeding authority against police suspected of engaging in torture. Government forces engaged in the conflict in the North Caucasus reportedly tortured and otherwise mistreated civilians and participants in the conflict.

According to the report prison conditions remained harsh and at times life threatening, resulting in approximately 50 deaths during the year in pre-trial detention centres.

2. United Kingdom Country Guideline Determinations

On 5 June 2006, the then Asylum and Immigration Tribunal, in the case of RM (Young Chechen Male - Risk – IFA) Russia CG [2006] UKAIT 00050, held that a Chechen, who was recorded as wanted by the Russian authorities in connection with or for supporting the rebels in Chechnya, would be at real risk of persecution or a breach of Article 3 of the Convention on return at Moscow or St Petersburg Airports, and anywhere else in the Russian Federation.

COMPLAINTS

The applicant complains under Article 3 of the Convention that if extradited to the Russian Federation , he will be subjected to inhuman and degrading treatment.

Relying on Article 6 of the Convention, the applicant further complains that his right to a fair trial will not be respected in the criminal proceedings in the Russian Federation .

QUESTIONS TO THE PARTIES

1. Would the applicant ’ s extradition to Russia violate Article 3 of the Convention?

2. If extradited where in Russia would the applicant be detained and tried?