FIFTH SECTION

Application no. 50609/12 Adam Aslanbekovich OSMAYEV against Ukraine lodged on 9 August 2012

STATEMENT OF FACTS

The applicant, Mr Adam Aslanbekovich Osmayev, is a Russian national, who was born in 1981 and is currently detained in Odessa , Ukraine . He is represented before the Court by Mr G. V. Tokarev, a lawyer, practicing in Kharkiv, and by Ms Y. V. Zayikina, a legal expert.

The circumstances of the case

The applicant is an ethnic Chechen.

On 8 May 2007 criminal proceedings were instituted against the applicant and several other ethnic Chechens, who resided in Moscow , the Russian Federation , at the material time, on suspicio n of membership of a terrorist organisation and participation in terrorist activity, in particular, planning the assassination of Ramzan Kadyrov, the Head of the Chechen Republic .

On 9 June 2007 the applicant was indicted of the above crimes.

In winter 2008, while under an undertaking not to abscond in connection with the above proceedings, the applicant left the Russian Federation and arrived in Ukraine .

On 24 March 2008 the Federal Security Service of the Russian Federation placed the applicant on the i nternational wanted list.

On 2 April 2009 the Moscow City Court convicted some of the applicant ’ s co-defendants of various crimes, including preparation of an assassination of Ramzan Kadyrov, forgery, and other offences.

On an unspecified date the Russian Human Rights Organisation “Union of Solidarity with Political Prisoners” declared the applicant a politically persecuted person.

On 4 January 2012 a private flat on T. street in Odessa , Ukraine , was set on fire as a result of an explosion. Having entered the flat, the fire f ighters discovered I.P., a Kazakh national, seriously burned, and the dead body of R .M., a Russian national of Chechen descent .

Having examined the flat after the incident, the Prymorskyy District Police of Odessa found traces of explosives, arrested I.P. and inst ituted criminal proceedings concerning the incident.

On an unspecified date before 4 February 2012 the applicant settled in a flat on B. street in Odessa with his father and step-mother.

On 4 February 2012 several dozen of masked combatants of the Security Service of Ukraine stormed the flat at B. street and arrested the applicant. During the arrest a passport in the name of S. Dolokhov having the applicant ’ s photograph in it was seized from him.

According to the applicant, at the material time he could hardly get up and walk as some 35% of his body was covered with burns resulting from explosion of the kitchen gas. At the material time he was very weak and physically incapable of resisting his arrest. In spite of this, the masked officers forced him face-down to the ground, handcuffed him and beat him severely. Following his arrest, the applicant was placed in an Odessa detention facility.

Between 4 and 6 February 2012 unidentified law-enforcement officers questioned the applicant concerning the explosion in the T. street flat and his purported involvement in terrorist activity.

According to the applicant, during the questioning he was severely ill-treated. In particular, the law-enforcement authorities threatened him in various ways, covered his head with a plastic bag to interrupt air supply and had a narcotic substance injected in his veins to alter his mental state and break his moral resistance. The applicant further submitted that he was also questioned by an unidentified officer of the Russian Federal Security Service, who had been threatening to have him tortured and killed in the event of his extradition to the Russian Federation .

On or around 6 February 2012 the applicant confessed that he had used the T. street flat to train R.M. and I.P. to become terrorists. They were manufacturing explosives for various terrorist acts in Moscow and were planning an assassinati on of Vladimir Putin (the Prime Minister of the Russian Federation at the material time).

On an unspecified date the applicant obtained a lawyer.

On 7 February 2012 an unspecified district court of Odessa remanded the applicant in custody for two months pending criminal investigation against him.

Following the applicant ’ s arrest, numerous Russian media reported that the security forces had neutralised an important terrorist group planning the assassination of Vladimir Putin and other terrorist acts in the Russian Federation and referred to the applicant by name as a “terrorist” a “bandit” and a “criminal.”

On 12 March 2012 the Security Service of Ukraine indicted the applicant and P.I. of membership of a terrorist group, preparation of terrorist acts, unlawful possession of arms and explosives and intentional destruction of another ’ s property.

On 3 April 2012 the applicant ’ s detention was extended for another two months.

On 24 April 2012 the applicant applied for political asylum with the State Migration Service of Ukraine, maintaining that he had never been involved in any terrorist activities and his criminal prosecution in the Russian Federation was political repression in disguise. In particular, he was a member of a prominent family, which used to have considerable influence in Chechnya before President Kadyrov took his post. In particular, the applicant ’ s father used to chair the Chechen oil company and his uncle used to be the Speaker of the Chechen Parliament. Following the President ’ s Kadyrov rise to power, the family had been driven out of Chechnya . The applicant had publicly shared his dissatisfaction with the policies of Ramzan Kadyrov and Vladimir Putin in respect of Chechnya . His political views were the real reason for his persecution by the Russian Government.

On 26 April 2012 Nadia Banchik, member of Amnesty International from the United States of America , addressed the President of Ukraine, urging him to prevent the applicant ’ s extradition to Russia in view of the imminent risk of his ill-treatment and unfair trial.

On an unspecified date in June 2012 the Odessa Regional Court of Appeal extended the applicant ’ s detention pending criminal investigation until 4 August 2012.

On 8 June 2012 the Odessa Regional Department of Refugee Affairs refused to initiate asylum proceedings in the applicant ’ s respect, having found that his application was manifestly inadmissible. The Department noted, in particular, that regard being had to the applicant ’ s arrival in Ukraine in 2008, his 2012 application lodged after his arrest was time-barred and that in any event his allegations of being a victim of political repression were ill-founded.

The applicant challenged this refusal before the Odessa District Administrative Court . The proceedings in this respect are currently pending.

On 11 July 2012 the General Prosecutor ’ s Office of Ukraine consented to the applicant ’ s extradition.

On 18 July 2012 the Security Service of Ukraine additionally charged the applicant of having crossed the Ukrainian border using a false identity document, while charges of intentional destruction of property against him were re-qualified to those of unintentional destruction. According to the applicant, following this date no further investigative activities were taken in his respect , as apparently the Ukrainian authorities no longer intended to investigate the charges against him and, pending the extradition proceedings, waited to transfer their jurisdiction over the case to their Russian counterparts. The applicant did not present any documents in support of this allegation.

On 23 July 2012 the applicant appealed against the decision on his extradition. He noted, in particular, that he had renounced his Russian citizenship, proceedings concerning his asylum request in Ukraine were pending and that he was at risk of ill-treatment, unfair trial and death penalty, if extradited.

On 30 July 2012 the applicant addressed the Federal Migration Service of the Russian Federation with a declaration on renunciation of his Russian citizenship.

On 31 July 2012 the Odessa Regional Court of Appeal extended the applicant ’ s detention until 4 November 2012 in connection with the pending criminal investigation against him. No copy of this decision has been provided to the Court.

On 3 August 2012 the Malynivskiy District Court of Odessa examined the applicant ’ s appeal against the decision on his extradition in presence of the applicant and his lawyer and upheld the challenged decision. It found, in particular, that in light of the guarantees provided by the Russian Government and the nature of the accusations against him, the applicant ’ s allegations concerning the risk of death penalty, ill-treatment and political prosecution were unsubstantiated. The court took no decision concerning the applicant ’ s detention with a view to his extradition.

On 7 August 2012 the applicant appealed against the decision of the Malynivskiy District Court before the Odessa Regional Court of Appeal, referring to essentially the same arguments as before, and additionally noting that his identity had not been established beyond a reasonable doubt. The applicant also requested to be escorted to the court to take part in the hearing in person.

On 13 August 2012 the applicant supplemented his appeal by submitting that he was no longer sure as to his personal identity. He noted, in particular, that the only identity document he had on him at the moment of his arrest was issued in the name of S. Dolokhov . After having been tortured by the law-enforcement authorities, in particular, after having an unknown substance injected into his body, he had partly lost his memory. In particular, he could hardly remember his childhood, youth and his parents. In these circumstances, a genetic expert assessment was warranted to establish his identity. In addition, having been severely ill-treated by the law-enforcement authorities and having been threatened by them and by the Russian Security officer, who had promised to have him tortured and killed upon his extradition, the applicant had his moral resista nce broken and had confessed to the crimes he had never committed.

On the same date the applicant complained to the Governor of his detention facility about not having access to his lawyer in connection with the extradition proceedings and requested him to facilitate his escort to the Court of Appeal for the hearing.

On 14 August 2012 the Court of Appeal examined the applicant ’ s appeal against the decision on his extradition in the presence of the applicant ’ s lawyer, but not the applicant himself, and upheld the extradition decision .

Currently the applicant is held in detention in Odessa .

COMPLAINTS

The applicant first complains that his extradition to the Russian Federation will put him at imminent risk of torture and unfair trial in breach of Article s 3 and 6 § 1 of the Convention and will deny him a possibility to stand fair trial in Ukraine.

The applicant next complains under Article 3 of the Convention that the Ukrainian law-enforcement authorities subjected him to inhuman and degrading treatment during his arrest and tortured him in the course of investigative activities to obtain false self-incriminating statements.

He also complains under the same provision that there was no effective investigation into his ill-treatment complaints.

The applicant next complains that his detention starting from 11 July 2012 has been unlawful within the meaning of A rticle 5 § 1 of the Convention . In particular, de jure he remained detained with a view to criminal investigation pending against him, however, de facto it was a detention with a view to his extradition only , as the criminal investigation was no longer conducted . In the meantime, no formal decision to detain him with a view to his extradition was taken. The applicant ’ s detention could therefore no longer be justified under any of the provisions of Article 5 § 1.

The applicant next complains under Article 5 § 4 of the Convention that regard being had to the failure of the authorities to regularise his detention with a view to his extradition after 11 July 2012, he had no effective opportunity to bring proceedings to have the lawfulness of his detention examined speedily.

He further complains under Article 5 § 5 of the Convention that applicable legislation does not entitle him to demand compensation for his unlawful detention pending extradition .

Finally, the applicant complains under Article 13 of the Convention that he has no effect ive remedies for his complaints regarding extradition.

QUESTIONS TO THE PARTIES

1. 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 if the extradition decision were enforced?

2 . Is the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, does his detention following the decision on his extradition fall within paragraphs (c) or (f) of this provision? If the detention is effected under Article 5 § 1 (c), regard being had to the applicant ’ s allegation that no investigative activities take place, is his detention based on relevant and sufficient reasons?

3 . Does the applicant have in his disposal the procedure by which the lawfulness of his detention can be examined by a court and his release ordered, as required by Article 5 § 4 of the Convention?

4 . Does the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1 and 4, as required by Article 5 § 5 of the Convention?

5 . D oes the applicant have at his disposal an effective domestic remedy f or his complaints under Article 3 (see Diallo v. the Czech Republic, no. 20493/07, § 74, 23 June 2011), as required by Article 13 of the Convention?