FIFTH SECTION

Application no . 11657/12 Umar Khasanovich ABUYEV against Ukraine lodged on 27 February 2012

STATEMENT OF FACTS

THE FACTS

The applicant , Mr Umar Khasanovich Abuyev , is a Russian national of Chechen origin. He was born in 1961. He is represented before the Court by Mr Oleg Levytskyy , a lawyer practising in Kyiv.

A. The circumstances of the case

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

1. Background to the case

Between 1999 and 2006 the applicant occupied high-ranking posts in the oil industry of the Chechnya . In particular , he worked as a General Director of the “Grozneft” and then of the “Chechenneftekhimpom” , State-owned petrochemical companies , the latter of which monopolised the fuel and energy sector of Chechnya . Until 2004 he was responsible for fuel and energy matters for the Government of Chechnya , headed by the President Akhmat Kadyrov. According to the applicant , on several occasions , he disclosed to Akhmat Kadyrov information as to criminal economic activities of his son Ramsan Kadyrov , and the latter knew about those accusations in his respect.

I n 2004 , after the death of Mr. Akhmat Kadyrov , the applicant was a n opposition candidate during the Chechen presidential elections . He claims to be a political opponent of the President Ramsan Kadyrov and states that during the election campaign he publicly criticized Mr Ramzan Kadyrov for corruption and embezzlement of public funds .

2. Criminal proceedings against the applicant in the Russian Federation

On 5 August 2005 the Prosecutor ’ s Office of the Chechen Republic instituted criminal proceedings against the applicant for embezzling the State loan bonds from the “Chechenneftekhimpom”.

On 16 November 2006 the Prosecutor ’ s Office of the Chechen Republic charged the applicant with misappropriation of property and abuse of office , crimes provided for by Articles 160 and 285 of the Criminal Code of the Russian Federation (the Criminal Code) . More specifically , the charges concerned embezzlement of State loan bonds from the “Chechenneftekhimpom” committed by the applicant in office between 2001 and 2002.

On 8 October 2007 the Zavodskoy District Court of Groznyy (hereafter – Zavodskoy Court ) acquitted the applicant of those crimes. By the same judgement the court lifted the applicant ’ s preventive measure, acknowledged his right to rehabilitation and compensation for the damage inflicted by his unlawful prosecution.

In 2008 the applicant left the Russian Federation . He claims to have left his country of origin lawfully , after having received credible threats to his life.

On 4 February 2011 the Zavodskoy Court convicted the applicant in absentia of misappropriation of funds and abuse of office , crimes set forth by Articles 160 and 285 of the Criminal Code . The court sentenced him to 9 years ’ imprisonment. The applicant , in particular , was found guilty of embezzlement of State loan bonds from the “Chechenneftekhimpom” committed as an official between 2001 and 2002.

On 11 March 2012 the Prosecutor ’ s Office of the Chechen Republic lodged a supervisory review appeal with the Supreme Court of the Chechen Republic against the judgment of 4 February 2011.

On 27 April 2012 the Supreme Court of the Chechen Republic allowed in part the supervisory review appeal of the Prosecutor ’ s Office of the Chechen Republic . The court upheld the judgment of the Zavodskoy Court of 4 February 2011 , having made some insignificant amendments.

According to the applicant he learned about the developments in the criminal proceedings against him , which had taken place after he had left the Russian Federation , only after h e was arrest ed in Ukraine .

3. Extradition and asylum proceedings in Ukraine

In July 2011 the applicant went to Ukraine on business. On 28 July 2011 the State Border Service arrested the applicant at the Kyiv Boryspil International Airport on the ground that his name had been put on an international wanted list in connection with being accused of crimes committed in the Russian Federation .

On 29 July 2011 the Boryspil District Court of the Kyiv Region ordered the applicant ’ s provisional detention for 40-days ’ period pending a Russian authorities ’ request for his extradition. The applicant was transferred to the Kyiv SIZO (hereinafter – SIZO) .

On 9 August 2011 the General Prosecutor ’ s Office of the Russian Federation (the General Prosecutor ’ s Office) requested the Ministry of Justice of Ukraine to extradite the applicant to the Russian Federation . As a ground for the extradition the General Prosecutor ’ s Office indicated that criminal proceedings against the applicant were pending before the Zavodskoy Court . They stated that these proceedings concerned offences set out in Article 160 (misappropriation of property) and Article 285 (abuse of office) of the Criminal Code. The request contained assurances that the applicant would enjoy a right to defend himself , including through legal assistance and that he would not be subjected to torture or ill-treatment. The General Prosecutor ’ s Office also assured the Ukrainian authorities that the extradition ’ s purpose was not political ly motivated or was not based on rac ial , religio us , national or political views of the applicant . They stated that the applicant would be prosecuted only for the offences for which he would be extradited . They further maintained that the applicant would not be expelled or extradited to a third State without the consent of the Ukrainian authorities and would be able to freely leave the Russian Federation after standing trial and serv ing a sentence , if any .

On 2 September 2011 the Shevchenkivskiy District Court of Kyiv (hereinafter – Shevchenkivskiy Court ) ordered the applicant ’ s arrest with the view of his extradition . The court permitted arrest for a period of no more than 18 months.

On 29 September 2011 the applicant lodged a request with the Kyiv City Department of the State Migration Service (hereinafter – Kyiv Migration Service) seeking to obtain a refugee status in Ukraine . He argued that he was subjected to persecution due to his previous political activity in Chechnya . He also claimed to be the Head of Chechen Regional Representation of the Russian Democratic Party and a political opponent of the President of Chechnya Ramzan Kadyrov. On 26 October 2011 , after preliminary examination of the applicant ’ s request , the Kyiv Migration Service refused to process documents required for making a decision on refugee status.

On 5 December 2011 the Department of International Law and Cooperation of the Ministry of Justice of Ukraine concluded that there were no circumstances which would preclude the applicant ’ s extradition to the Russian Federation and , therefore , the request of 9 August 2011 could be granted.

On 6 December 2011 the Ministry of Justice of Ukraine ordered the applicant ’ s extradition to the Russian Federation .

On 7 December 2011 t he applicant lodged an administrative complaint with the Kyiv City Administrative Court against the refusal of the Kyiv Migration Service of 26 October 2011.

On 23 December 2011 the Kyiv City Administrative Court quashed the decision of 26 October 2011 and ordered re-examination of the applicant ’ s request by the Kyiv Migration Service.

On 26 December 2011 the applicant requested the Shevchenkivskiy Court to invalidate the extradition order of 6 December 2011. He argued in his claim that the Ministry of Justice of Ukraine did not specify with sufficient precision the purpose of his extradition to the Russian Federation . In particular , he stated that they had used vague wording “with the view to bringing him to criminal liability” under Article 160 and 285 of the Criminal Code. He claimed that by using that phrase the Ukrainian authorities covered the genuine purpose of his extradition - enforcement of the judgment , by which the applicant had been convicted in absentia and sentenced to 9 years ’ imprisonment. He also claimed that he had applied for a refugee status in Ukraine due to his politically motivated prosecution in the Russian Federation . He maintained that the asylum proceedings were still pending.

On 25 January 2012 the Shevchenkivskiy Court rejected the applicant ’ s claim for invalidation of the extradition order. The court held that the Ministry of Justice ’ s extradition decision was in compliance with the Ukrainian law as by the date of the delivery of the extradition order the applicant had not been recognised as a refugee.

According to the applicant ’ s representative in the course of the proceedings before the Shevchenkivskiy Court he obtained access to the extradition materials , presented by the Russian authorities. He then observed that the extradition request of the General Prosecutor ’ s Office did not mention the judgments of the Zavodskoy Court of 8 October 2007 and 4 February 2011. He also found that the request was supported by a police officer ’ s resolution , adopted on unspecified date in October 2009 , which had ordered the applicant ’ s placement on an international wanted list on suspicion of committing crimes provided by Articles 145 and 160 of the Criminal Code .

On 30 January 2012 the applicant re-lodged his request for refugee status on account of an administrative reform of the Ukrainian migration authorities.

On 1 February 2012 the applicant lodged an appeal with the Kyiv City Court of Appeal against the resolution of the Shevchenkivskiy Court of 25 January 2012 concerning the extradition order .

On 27 February 2012 the Kyiv City Court of Appeal rejected the appeal and upheld the resolution of 25 January 2012. It noted, in particular, that by the date of the hearing before the Shevchenkivskiy Court the applicant had failed to prove his refugee status, while the fact that the asylum proceedings in his respect were pending could not entail annulment of the resolution of 25 January 2012.

The ruling of 27 February 2012 was final and not subject to appeal except for extraordinary appeal by the Prosecutor. The extradition order, issued by the Ministry of Justice of Ukraine on 6 December 2011 became, therefore, enforceable on 27 February 2012.

On 11 April 2012 the Kyiv Migration Service refused to process documents required for making a decision on a refugee status , having found the applicant ’ s request manifestly ill-founded. The applicant disputed the refusal before the State Migration Service of Ukraine. On 17 May 2012 the State Migration Service allowed the applicant ’ s complaint against the refusal of 11 April 2012. It found , in particular , that:

( i ) the applicant supported his application for refugee status by information which was at his disposal and gave reasonable explanations for his failure to substantiate some other facts;

(ii) his statements were clear, plausible and not contradictory to the general information in his case;

(iii) the applicant was trustworthy.

It was also underlined that the unreasonable decision of the Kyiv Migration Service could endanger the applicant ’ s life and freedom , put him in the risk of being subjected to torture and ill-treatment.

The applicant ’ s request for refugee status is currently being examined by the Kyiv Migration Service .

4. Recognition as a refugee by the Office of the UNHCR

On 7 March 2012 the Office of the UNHCR , having interviewed the applicant on several occasions in the SIZO , declared him a refugee under its mandate. On the same date a refugee certificate in respect of the applicant was issue d by the Office of the UNHCR.

On 14 June 2012 the UNHCR Office updated the applicant ’ s refugee certificate.

B. Relevant domestic law

The relevant domestic law and practice are briefly summarised in the case of Molotchko (see Molotchko v. Ukraine , no. 12275/10 , § 91 , 26 April 2012).

The relevant extracts from the Code of Criminal Procedure of 28 December 1960 (as in force at the material time) read as follows:

Article 467 . Procedure for appeal against a decision to extradite a person

“... An appeal against the decision of the court of appeal may be lodge only by the prosecutor on the ground of wrong application by the court of provisions of the international treaties of Ukraine and provided that annulment of the decision on extradition precludes further proceedings in the case against the person whose extradition is requested by a foreign State.”

Article 469 . Suspension of extradition

After the adoption of the decision on extradition the central authority may suspend actual transfer of the person to a foreign State if:

1) the person , in respect of who the decision on extradition was delivered , is brought to criminal liability or serves a sentence , involving deprivation or restriction of liberty for another crime committed in Ukraine – till the termination of pre-trial investigation or trial , serving sentence or release from punishment on any lawful grounds;

2) the person , in respect of who the extradition request was received , is seriously sick and the extradition may be harmful for the person ’ s life and health – till recover y of the person.

“ ... The central authority may review its decision on extradition if circumstances, which preclude the person ’ s extradition, arise during the period of suspension”.

The relevant provisions of the Refugee Act ( Law of Ukraine on Refugees and Persons in need of Complementary or Temporary Protection in Ukraine of 8 July 2011 (as in force at present moment) establish procedure for requesting asylum in Ukraine and deal with t he status of refugees (Articles 1, 3, 5-12).

COMPLAINTS

The applicant complains under Article 3 of the Convention that in the event of his extradition to the Russian Federation he would face the risk of being subjected to ill-treatment by the Chechen authorities.

He alleges that the Ukrainian authorities disregard those fears. He complains that the Ukrainian migration authorities refused to examine on the merits his request for refugee status, despite they had been given plausible reasons for which he required protection under the Refugee Act.

He also claims that the Ukrainian courts, examining his appeals against the extradition order, did not give any assessment to his arguments concerning the fear to face ill-treatment in the Russian Federation .

With reference to Article 6 of the Convention the applicant further complains that the criminal charges against him in the Russian Federation are politically motivated and that he would not benefit from the guarantees of a fair hearing in the event of their extradition.

QUESTIONS

1. In the light of the guarantees issued by the Russian Federation and having regard to the risk which the applicant allege s to face , would his extradition be contrary to their rights under Article 3 of the Convention?

2. Does the fact that proceedings concerning the applicant ’ s request for refugee status are currently pending constitute a sufficient guarantee that he will not be extradited prior to the outcome of those proceedings?

The parties are further requested to provide cop ies of the documents enclosed to the extradition request made by the General Prosecutor ’ s Office of the Russian Federation on 9 August 2011 .