Published on 3 April 2023

FIFTH SECTION

Application no. 27477/19 M.M.K. against Ukraine lodged on 23 May 2019 communicated on 17 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s extradition to Tajikistan on charges of participation in the activities of Jamaat Ansarullah, a terrorist group associated with the Taliban, and his complaint under Articles 3 of the Convention in that respect.

On 24 June 2016 the applicant, a Tajikistani national, arrived in Ukraine from Türkiye, with a forged passport and with an apparent plan to re-enter Türkiye (where he and his family lived at the time) under his new forged identity. He was arrested at the airport and detained at the request of Tajikistani authorities and on 25 November 2016 the General Prosecutor’s Office of Ukraine authorised his extradition to Tajikistan. He did not appeal against that decision within the time-limit set. However, the GPO suspended extradition for the duration of asylum procedure.

In January 2017 the applicant applied for asylum arguing that he was being persecuted in Tajikistan due to his Muslim religion and referring to the poor human rights situation there. On 9 February 2017 the authorities rejected his application based on the fact that there were no indications of politically motivated persecution (notably because the applicant stated that he was not a member of any political party or group), that his account was vague and contradictory and that he was abusing the asylum process to avoid accountability for his terrorist activities. On 22 February 2017 the applicant lodged an administrative and then judicial appeals which were unsuccessful. Final decision: Sixth Administrative Court of Appeal, 17 April 2019.

On 22 May 2019 the applicant was extradited to Tajikistan. Being unaware of this development, the next day the Court indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited until 14 June 2019. The interim measure was not extended, since the Government provided the information and confirming documents that the applicant had been extradited before his representative lodged the Rule 39 request.

On 18 January 2023 the applicant’s lawyer, replying to an inquiry from the Registry as to whether he maintained contact with the applicant and whether he wished to maintain the application, replied that the applicant’s wife wished to maintain the application. He provided a handwritten statement from her to that effect, dated 17 January 2023. He stated that the wife had no news from the applicant for 1,5 years. According to her information, in 2021 the applicant had been kept in a prison near Dushanbe, the capital of Tajikistan. His trial had been held behind closed doors. It was only known that he had been sentenced to 23 years in prison.

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of his complaint under Articles 2 and 3 of the Convention (see, for example, U.S. v. Ukraine (dec.), no. 61820/19, §§ 38 and 39, 20 May 2021 [Committee])?

2. In the light of the general situation in Tajikistan and the applicant’s personal circumstances, was he exposed to a risk of being subjected to treatment in breach of Articles 2 and 3 of the Convention due to his extradition there (see F.G. v. Sweden [GC], no. 43611/11, § 114, 23 March 2016)? In particular:

(i) did the applicant sufficiently bring his personal situation to the attention of Ukrainian authorities (see Khasanov and Rakhmanov v. Russia [GC], nos. 28492/15 and 49975/15, §§ 97-112, 29 April 2022)?

(ii) did the applicant belong to a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in Tajikistan (see, for example and mutatis mutandis , K.I. v. Russia , no. 58182/14, §§ 34-36, 7 November 2017)?

(iii) did the authorities carry out an adequate assessment of his claim about the above-mentioned risk (see F.G. v. Sweden , cited above, §§ 119-27)?