FIFTH SECTION
DECISION
Application no. 63044/16
Zelimkhan Kureyshevich BELKHAROYEV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 10 April 2018 as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
Ganna Yudkivska,
Faris Vehabović,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 4 November 2016,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant’s lawyer,
Having regard to the comments submitted by the Government of the Russian Federation,
Having regard to the factual developments in the case brought to the Court’s knowledge by the respondent Government and uncommented by the applicant,
Having deliberated, decides as follows:
THE FACTS AND PROCEDURE
1. The applicant, Mr Zelimkhan Kureyshevich Belkharoyev, is a Russian national who was born in 1991 and is detained in Ukraine. He was represented before the Court by Ms I. Biryukova, a lawyer practising in Podolsk (Russia).
2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, from the Ministry of Justice.
3. The Russian Government exercised their right of third-party intervention in accordance with Article 36 § 1 of the Convention and were represented by the Representative of the Russian Federation to the European Court of Human Rights, Mr M. Galperin.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 3 and 18 April 2014 the Federal Security Service of the Russian Federation instituted criminal proceedings against the applicant on suspicion of participating in an illegal armed formation on the territory of a foreign state (Syria) and undergoing training with a view to committing crimes.
6. On 11 June 2014 he was placed on an international list of wanted persons.
7. In April 2015 the applicant arrived in Ukraine.
8. On 15 August 2015 the Security Service of Ukraine opened a criminal investigation against a group of unnamed individuals pledging allegiance to the “Islamic State” on account of the illegal transfer of foreign terrorist insurgents via the territory of Ukraine. On 4 November 2015, when conducting a search in connection with the above criminal proceedings at the residence of one of the suspects, the investigators seized a number of assorted firearms, including explosive devices, together with a passport issued in the name of Mr Belkharoyev.
9. On 13 October 2015 the applicant was arrested at Boryspil International Airport (Kyiv, Ukraine) whilst attempting to leave for Amman with a false Tajik passport. He refused to disclose his identity. However, eventually he was identified as the holder of Mr Belkharoyev’s passport (see paragraph 8 above).
10. On 14 December 2015 the applicant lodged an asylum request, submitting that the criminal charges against him in Russia had been fabricated because of his religious views. He described himself as a devout Sunni Muslim, whose vision of Islam differed from the mainstream Sufi Islam officially endorsed in the North Caucasus where he had been living. By a final ruling of the Higher Administrative Court of 22 June 2016, the Ukrainian authorities rejected the applicant’s asylum request as unsubstantiated.
11. On 31 August 2016 the Prosecutor General’s Office of Ukraine (“the PGOU”) ordered that the applicant be extradited to Russia. It stated that the extradition inquiry had not established any legal or other impediments to the requested measure and that the charges against him were not politically motivated. The PGOU noted that, as confirmed by the Ministry of Foreign Affairs of Ukraine, the applicant was accused of membership of a terrorist organisation associated with al-Qaeda. The offences of which he was accused in Russia were also criminally punishable in Ukraine (participation in a terrorist group or organisation and abetting terrorist acts). Furthermore, the State Security Service of Ukraine submitted that it had no information about the applicant’s membership of any religious organisation or opposition party persecuted in Russia. Lastly, it was observed that the applicant’s asylum request had been rejected by the Ukrainian courts and that his state of health allowed his transfer to be effected.
12. The applicant remained in detention pending his extradition.
13. On 7 November 2016 he requested that the Court suspend his extradition to Russia under Rule 39 of the Rules of Court on the ground that he would risk being subjected to ill-treatment in the requesting State.
14. On 2 December 2016 the President of the Chamber to which the application had been allocated decided to apply Rule 39 and to indicate to the Government of Ukraine that the applicant should not be extradited until further notice.
15. On 6 December 2016 the PGOU stayed the applicant’s extradition to Russia in compliance with the above interim measure.
16. On 30 December 2016 the applicant’s detention was replaced by house arrest (he had rented a room in Kharkiv).
17. On 19 January 2017 the applicant disappeared. The police discovered his electronic tracking device in a bucket containing warm water, which they interpreted as an attempt to deceive the device by placing it in an environment with a temperature close to that of the human body.
18. When invited to comment on the above-mentioned event, the lawyer representing the applicant in the proceedings before the Court submitted, in general terms, that her client might have been abducted. She noted that her last contact with him had been by telephone on the eve of his disappearance.
19. On 7 February 2017 the Court decided to give notice of the application to the respondent Government and invited the parties to provide it with any information and documents available concerning the circumstances of the applicant’s disappearance and its investigation.
20. In their observations of 10 April 2017 the Ukrainian Government maintained that the applicant had absconded. In her reply of 1 July 2017, the applicant’s lawyer disagreed with the respondent Government, without providing further details. She stated that she had had no contact with the applicant after the telephone conversation prior to his disappearance.
21. Neither the applicant’s lawyer nor any of his relatives filed any complaints to the law-enforcement authorities in respect of his disappearance.
22. On 13 July 2017 the applicant was arrested in Ukraine with a false Ukrainian passport. According to the information provided by the Ukrainian Government, he resisted the police and firearms had to be used.
23. On 27 July 2017 the Government informed the Court of the above event. Their letter was sent to the applicant’s lawyer, who was invited to comment on it by 18 September 2017. However, she did not submit any comments.
24. By a letter of 13 December 2017 the applicant’s lawyer submitted an enquiry to the Court about the possible date of examination of the application, without further submissions.
COMPLAINT
25. The applicant complained under Article 3 of the Convention that his extradition to the Russian Federation would entail a violation of his rights under Article 3 of the Convention.
THE LAW
26. In their submissions made prior to the applicant’s re-arrest on 13 July 2017 (see paragraph 20 above), the Ukrainian Government invited the Court to declare the application inadmissible either as being incompatible ratione personae on the grounds of the applicant’s disappearance or as being manifestly ill-founded. In reply, the applicant’s lawyer reiterated her client’s initial complaint (see paragraph 25 above).
27. The Government of the Russian Federation maintained in their third‑party submission that in the event of the applicant’s extradition to Russia his rights under Article 3 of the Convention would be respected. They emphasised the gravity of the offences with which he had been charged and submitted that not having him extradited might seriously impede the requesting State’s ability to combat terrorism and organised crime.
28. The Court does not find it necessary to examine the respondent Government’s objections, given that the present application is to be struck out from the Court’s list of cases for the following reasons.
29. Article 37 of the Convention reads as follows in the relevant part:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; ...
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
30. The Court has stressed that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 35, 17 November 2016).
31. Whilst it is true that the applicants’ representative has the power to represent them throughout the entire proceedings before the Court, that power does not by itself justify pursuing the examination of the case (see V.M. and Others, cited above, § 37).
32. At the same time, the Court is mindful that where the alleged violation or violations of the Convention are closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State, it is prepared to recognise an exception to the general principle that the proceedings must be pursued by an individual “directly affected” by the measure complained of, in particular the victim’s next of kin (see, for example, S.K. v. Russia (dec.), no. 58221/10, § 31, 7 November 2017).
33. It would appear in the present case that the last time the applicant and his lawyer were in contact was a day prior to the applicant’s disappearance on 19 January 2017 (see paragraph 18 above). The applicant’s lawyer submitted that her client might have been abducted. However, there is nothing in the case file to support that claim. On the contrary, the absence of any subsequent complaints to the law-enforcement authorities by the applicant’s lawyer or his relatives rather suggests that the responsibility of the State was not engaged in respect of his disappearance. It is also noteworthy that about half a year later the applicant was re-arrested in Ukraine with a false Ukrainian passport (see paragraph 22 above). The Court’s request to the applicant’s lawyer for comments on those developments remained without reply (see paragraph 23 above). Nor has the lawyer ever informed the Court that she has restored her contact with the applicant. The mere fact that she in December 2017 enquired about the state of proceedings without any further submissions or information about the applicant (see paragraph 24 above) is not sufficient to reach another conclusion.
34. That being so, and in the absence of any correspondence from the applicant himself, the Court considers that his conduct can be interpreted as indicating his loss of interest in the proceedings before this Court.
35. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
36. At the same time the Court reiterates that under Article 37 § 2 of the Convention it may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.
37. In view of the above, it is appropriate to strike the case out of the list.
38. Consequently, the indication of an interim measure under Rule 39 of the Rules of Court comes to an end.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 3 May 2018.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy