FIFTH SECTION

Application no. 65303/10 Andrei BUDREVICH against the Czech Republic lodged on 9 November 2010

STATEMENT OF FACTS

The applicant, Mr Andrei Budrevich , is a Belarusian national who was born in 1979 and lives in Prague . He is represented before the Court by Ms H. Franková , 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. Asylum proceedings

The first asylum request

On 28 October 2006 the applicant requested asylum in the Czech Republic . He explained that he had left Belarus in October 2006 because of pressure from the State authorities which had been related to the fact that he had imported advertisements in support of the opposition candidate in the presidential elections , Aliaks andr Milinkevich . The applicant asserted that he had been detained for forty-five days and fined, and that his car and passport had been confiscated. Moreover, several searches had been carried out at his house. Following his departure from the country, militia had repeatedly visited his house and threatened his mother and sister that criminal proceedings would be initiated against him. Thus, he feared imprisonment in Belarus for cooperation with an illegal political party.

On 6 September 2007, the applicant ’ s asylum request was refused by the Czech Ministry of the Interior. The Ministry had carried out a detailed analysis of the applicant ’ s situation and come to the conclusion that the applicant ’ s allegations were contradictory and not credible. It noted, inter alia , that although the applicant might have originally been prosecuted and convicted for importing advertisements in support of the opposition candidate in the presidential election, this had only been a one-off activity carried out for a financial reward and the applicant was not politically active in Belarus . Moreover, he had not made any attempt to file a criminal complaint against the prosecuting organs which had allegedly pressurised him, or to move to another part of the country. Further, the applicant had already been punished on that account and did not have any political engagement in his country. Nothing indicated that he would run any new risk or that there was any likelihood of a violation of international engagements by the Czech Republic .

On 22 May 2008, the Hradec Králové Regional Court upheld that decision. It found inter alia that the events related by the applicant did not amount by their intensity to “persecution for upholding political rights and freedoms” since the applicant had also had problems with the police in connection with the importing of other goods.

On 10 June 2009 the Supreme Administrative Court rejected the applicant ’ s appeal on points of law on the ground that he had failed to specify the reasons for his appeal. This was due to the fact that the applicant could not be reached by his lawyer, who stated that he could not complete the grounds of the appeal without discussing them with the applicant. The Supreme Administrative Court considered that the applicant was obliged to cooperate duly with his lawyer or to bear the consequences of his passivity.

The second asylum request

On 21 January 2010 the applicant renewed his asylum request on the ground that if returned to Belarus he would be prosecuted by the police and punished for having sought asylum in the Czech Republic . He declared that he was not aware of any ongoing criminal proceedings against him in Belarus . His renewed request was rejected by the Ministry of the Interior on 3 February 2010 on the ground that it was a repeated request and that there were no new circumstances.

The decision was upheld by Plzeň Regional Court on 13 September 2010. The court rejected the applicant ’ s argument that an extradition request was pending holding, inter alia :

“ ... during the examination of the applicant ’ s renewed asylum request, the Ministry of the Interior was only informed of the fact that the applicant was being sought on the national level in Belarus for drug trafficking ... and that a preliminary examination was being carried out into an extradition request in connection with criminal proceedings in Belarus.

The court is of the opinion that under such circumstances the Ministry did not proceed erroneously given that it only asked the applicant whether he was aware that he was being prosecuted in Belarus (response: “No, I do not know anything about that.”) and left any other steps to the competent authorities in the Czech Republic. Indeed, a repeated asylum request is ... inadmissible when the foreigner does not provide any new facts or findings which were not, for reasons for which the foreigner is not to blame, examined in the previous proceedings which have already ended, but not when the administrative authority does not of its own motion re-examine any potential sign which would justify the granting of asylum. Therefore, the argument regarding the extradition request of Belarus cannot be regarded as well-founded.”

The applicant states that he was aware of his new prosecution in Belarus for drug related offences neither during the first asylum proceedings nor at the moment of filing of his second asylum request. Indeed, he became aware of it only when the Plzeň Regional Prosecutor informed him about the extradition request filed by Belarusian authorities (see below). He stresses that the Ministry was however aware of his new prosecution in Belarus when it examined his second asylum request as is demonstrated by the Plzeň Regional Court ’ s decision above.

On 28 February 2011 the Supreme Administrative Court quashed the Plzeň Regional Court ’ s decision of 13 September 2010. It considered that the Ministry - which had known about the extradition request filed by Belarusian authorities at the time when it had examined the second asylum request - should have informed the applicant about it and not merely asked him whether he had been aware of it. The Ministry ’ s decision was insufficiently reasoned since it did not examine the question whether the new criminal prosecution and the extradition request constituted a new circumstance rendering a new meritorious examination of the asylum request necessary.

On 18 May 2011 Plzeň Regional Court applying the Supreme Administrative Court ’ s decision quashed the Ministry ’ s decision of 3 February 2010 and remitted the case before the Ministry.

On 22 December 2011 the Ministry of the Interior, referring to its decision of 17 October 2011 in the fourth asylum proceedings (see below), stopped the proceedings. It stated that the same right could not be granted twice. It further stated that the applicant had not filed an action against the decision of 17 October 2011 which became final on 19 November 2011.

The applicant filed an appeal against this decision, which is currently pending, esteeming that the decision was based on wrong facts since he had filed an action against the decision of 17 October 2011.

The third asylum request

Another asylum request was lodged b y the applicant on 29 September 2010. The Ministry of the Inter ior rejected it on 30 September 2010 pursuant to Section 10a(e) of the Asylum Act, on the ground that it was a repeated request and that there were no new circumstances. The Ministry acknowledged that the applicant had not previously alleged that charges against him had been fabricated or that criminal proceedings had been initiated against him in Belarus . These circumstances had, however, been known to the applicant during the previous asylum proceedings since he had explained that he had left Belarus precisely because of fabricated charges against him. According to the Ministry, these circumstances should have been raised by the applicant in his previous requests and therefore could not be examined at this stage.

On 13 January 2011, the Prague Municipal Court rejected the applicant ’ s action against that decision as belated. The court held that the Ministry ’ s decision had been validly served upon the applicant on 1 October 2010, despite the latter ’ s refusal to receive it. The applicant had refused to receive it without providing any grounds. According to the court the case-file did not contain any power of attorney; consequently, the decision could be validly delivered without presence of any representative. The presence of an interpret into Russian language was not necessary either due to the fact that the applicant had submitted his asylum request in Czech language and that he had informed the Ministry that he was able to communicate in Czech language. The court stated that the applicant respected neither the 7 nor the 15 days time-limit given that he had sent his appeal on 21 October 2010.

On 2 February 2011, the applicant lodged a cassation appeal.

On 31 May 2011 the Supreme Administrative Court found that the Ministry ’ s decision had not been validly served upon the applicant and remitted the case before the Prague Municipal Court, where the action is currently pending.

The fourth asylum request

On 22 November 2010 the applicant lodged a fourth asylum request.

On 17 October 2011 the Ministry of the Interior partly granted the request. The Ministry considered that in light of the developments in Belarus following Lukasenko ’ s re-election it could not exclude that the applicant would run a real risk of inhuman or degrading treatment upon his return. Therefore, the applicant was granted an alternative form of international protection for one year as of the date of the decision becoming final (19 October 2011).

The applicant filed an action against this decision before the Hradec Králové Regional Court . In a letter of 17 April 2012, the agent of the Government explained to the Court that since this action had a suspensive effect, the applicant was not protected by the above one year temporary protection. He was however protected by the Court ’ s request not to proceed with the expulsion until further notice. He was also protected, pursuant to article 350b of the Code of Criminal Proceedings by his status of asylum seeker, unless his asylum request was considered entirely manifestly ill-founded.

2. Criminal proceedings and decisions on the applicant ’ s expulsion

(a) Proceedings before the Prague 10 District Court

On 5 November 2008 the Prague 10 District Court found the applicant guilty of theft and sentenced him to expulsion from the territory of the Czech Republic for a period of thirty months. The applicant did not appeal against that decision.

On 9 September 2010 the applicant requested suspension of the execution of the above expulsion on the ground that he would face prosecution for a fabricated criminal offence and run the risk of a violation of his rights under Articles 3 and 6 of the Convention. He also referred to the Plzeň Regional Court ’ s refusal to authorise his extradition (see extradition proceedings below) and informed the District Court that he had filed another asylum request.

On 23 September 2010 the District Court granted the applicant ’ s request to stay the expulsion pending the decision on his asylum request.

On 25 October 2010 the District Court cancelled the suspension of the expulsion, referring to the dismissal of the applicant ’ s asylum request by the Ministry of the Interior on 30 September 2010. The District Court refused to take into account a new suspension request filed by the applicant on 19 October 2010 and grounded on the fact that he had filed a new asylum request with the Ministry of the Interior.

On 9 November 2010 the applicant appealed to the Prague Municipal Court.

On 10 November 2010 the District Court stayed the expulsion, in compliance with the Court ’ s request not to proceed with the expulsion until further notice. The District Court did not mention any time-limit for the duration of the suspension.

On 13 January 2011, the Prague Municipal Court rejected the applicant ’ s appeal of 9 November 2010 as belated. This decision was served on the applicant in April 2011. The court esteemed that the applicant had received the challenged decision on 5 November 2010 and the last day to lodge an appeal thus had been 8 November 2010.

The applicant stated that he had not been able to lodge the appeal in due time because he had been in extradition detention at the time when the decision had been served on him (Friday 5 November 2010) and had not been able to contact his representative in due time. Indeed, it was necessary to make a special written request in order to be allowed to use the telephone. Moreover, a return call could not be directly transferred to the applicant without a prior written request. Thus, the applicant could not telephone his representative until Tuesday 9 November 2010. Further, he could not understand the decision or take any appropriate steps since he did not understand the Czech language or the Czech legal system.

(b) Proceedings before the Prague 8 District Court

On 13 March 2009 the Prague 8 District Court found the applicant guilty of theft and sentenced him to one year ’ s imprisonment and expulsion for five years.

According to the Government, the execution of this sentence has not been formally stayed. However, due to the fact that it was pronounced only after the sentence of expulsion of 5 November 2008, it cannot be executed prior to the execution of the sentence of 5 November 2008 which was stayed on 10 November 2010. The Prague District Court indicated not to proceed with the execution of the sentence under the circumstances.

According to the applicant ’ s representative, these proceedings are still pending.

3. Extradition proceedings

On 26 November 2009 Belarus requested the applicant ’ s extradition for the purposes of his prosecution for drug-related offences. At an unspecified date, the Plzeň Regional Prosecutor informed the applicant about the request.

On 23 April 2010 the Plzeň Regional Court decided that the request for the applicant ’ s extradition to Belarus was inadmissible because there existed reasonable fears that the criminal proceedings against him in Belarus would violate his rights under Articles 3 and 6 of the Convention. It relied on a report by the Ministry of Foreign Affairs of the Czech Republic and two reports by Human Rights Watch and Amnesty International provided by the United Nations High Commissioner for Refugees.

B. Relevant domestic law and practice

1. Asylum Act (Act no. 325/1999)

Under Section 10a(e) a repeated asylum request shall be inadmissible where the alien files it after previous proceedings have been terminated without stating any new facts or findings which were not, for reasons for which the alien is not to blame, examined in the previous proceedings.

Under Section 32(3), applicable until 31 December 2011, lodging a request for judicial review against the decision of the Ministry concerning asylum shall not have a suspensive effect if the proceedings were discontinued because the asylum request was inadmissible under Section 10a(e).

2. Criminal Code (Act no. 40/2009)

Under Section 80(3)d the sentence of expulsion is inadmissible if there is a risk that the offender will be persecuted on account of his race, ethnicity, nationality, belonging to a social group, or political or religious beliefs in the State of return, or if he could be exposed to torture or other inhuman or degrading treatment or punishment.

3. Code of Criminal Proceedings (Act no. 141/1961)

Under Section 350b, where a person sentenced to expulsion requests asylum and that request is not entirely manifestly ill-founded, the president of the chamber shall suspend the execution of the expulsion at the applicant ’ s request or of his own motion.

Under Section 350h the court shall not execute the sentence of expulsion if following the adoption of a judgment imposing this sentence, circumstances under which a sentence of expulsion is inadmissible have occurred.

Under Section 393k an extradition request cannot be granted if there are reasonable fears that criminal proceedings in the requesting State will violate Articles 3 and 6 of the Convention or that the imprisonment in that State will not be executed in compliance with Article 3 of the Convention.

4. Opinion of the Supreme Court of 17 April 2003

According to an opinion of the Supre me Court of 17 April 2003 ( Tpjn 310/2001), pending asylum proceedings do not bar execution of a sentence of expulsion. A criminal court does not need to wait until the end of the asylum proceedings but can itself assess whether the expulsion by the Czech Republic would violate its international obligations, especially under the Convention, the Convention relating to the Status of Refugees or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

C. Relevant international materials concerning the human rights situation in Belarus

The relevant international materials concerning the human rights situation in Belarus were set out in the Court ’ s judgment Y.P. and L.P. v. France , no. 32476/06 , § 37-45, 2 September 2010 .

COMPLAINTS

1. The applicant complains that if he is deported to Belarus, there is a real risk that he will be subjected to ill-treatment. He further complains that the Ministry of the Interior, the Prague 10 District Court and the Prague 8 District Court did not examine the risk of a violation of his rights guaranteed under Article 3 of the Convention, despite his complaints and despite the Plzeň Regional Court ’ s prohibition on extradition.

2. Relying on Article 13 in conjunction with Articles 3 and 6 § 3 of the Convention, the applicant further complains that the Czech legal system did not provide him with any effective remedy against the decision of the Ministry of the Interior of 30 September 2010, as the action brought before the Regional Court did not have an automatic suspensive effect. Although it was theoretically possible to file a suspension request, such requests are ineffective in practice. Moreover, under domestic law asylum proceedings do not constitute an obstacle to a sentence of expulsion. Thus, the criminal courts would still be authorised to proceed with the expulsion while the asylum proceedings were pending, and to expel him to Belarus where he would face a risk of ill-treatment and flagrant denial of justice in the criminal proceedings brought against him after he left the country.

3. Still relying on Article 13 in conjunction with Articles 3 and 6 § 3 of the Convention, the applicant complains that the three-day time-limit for filing an appeal against the Prague 10 District Court ’ s decision of 25 October 2010 was too short and made this legal avenue ineffective in his case. Further, even if the appeal had not been rejected as belated in his case, it could not be deemed to be an effective remedy since criminal courts are not provided with instruments enabling them to examine the situation in the country of origin. Such an examination can only be carried out by the Ministry of the Interior. Criminal courts may also conclude that a pending asylum request is manifestly ill-founded and proceed with the execution of a sentence of expulsion.

QUESTIONS

1. Would the applicant ’ s expulsion to Belarus violate Article 3 of the Convention? Have the domestic authorities (apart from the extradition proceedings) given an appropriate assess ment of the risk flowing from a return, in the light of his claim that the drugs charges against him were fabricated?

2. Had the applicant at his disposal an effective remedy within the meaning of Article 13 read in conjunction with Article 3 of the Convention at the decisive stage of the proceedings? In particular, was the applicant ’ s complaint that his removal to Belarus would have consequences contrary to Article 3 of the Convention – notably because of the criminal proceedings brought against him in Belarus after he left the country – subjected to appropriate scrutiny by the relevant national authorities, and were remedies with an automatic suspensive effect available to the applicant (see Gebremedhin [ Gaberamadhien ] v. France , no. 25389/05, §§ 58, 66-67 ECHR 2007 ‑ V)?