FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18358/07
by Adam MAMILOV
against Poland
The European Court of Human Rights (Fourth Section), sitting on 20 October 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 28 April 2007,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Adam Mamilov, is a Russian citizen of Ingush nationality who was born in 1970 and lives in Warsaw. He was represented before the Court by Mr Grzegorz Wilga from the Stowarzyszenie Interwencji Prawnej.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant participated in the first Russian - Chechen war in 1994. He served in the Bamuty Batallion which operated on the Chechen-Ingush border. After 1996 he stayed in Chechnya where he trained volunteers for Chechen military groups in Grozny.
At the beginning of 2000, when the second Chechen war started, the applicant escaped from Grozny. He reached Georgia, where he stayed for three years in the Pankisi Gorge.
In October 2003 he left for Ukraine and finally entered Poland illegally.
On 27 February 2004 the applicant was detained on charges of theft committed in Poland. On 5 May 2006 the Warsaw Regional Court acquitted him. On 15 May 2007 the Warsaw Court of Appeal upheld the judgment.
On 17 June 2006 the applicant married M.O., a Russian citizen of Ingush nationality, in a Muslim ceremony.
On 19 October 2006 the applicant was arrested while attempting to cross the Polish -Czech border, and placed in a detention centre.
His detention pending extradition was subsequently extended by the Radom Regional Court on 21 March 2007, 17 December 2008 and 11 March 2009.
On 20 May 2009 the applicant was released from detention.
1. Application for refugee status
On 6 November 2006 the applicant applied for refugee status in Poland.
On 17 January 2007 the President of the Office for Repatriation and Aliens (Prezes urzędu do spraw repatriacji i cudzoziemców) refused to grant refugee status to the applicant. He further rejected the applicant's request for a “tolerated stay” (pobyt tolerowany). He stressed that there was no evidence that the applicant had ever been persecuted by the Russian authorities. While the applicant could have participated in the 1994-1995 war, almost 12 years had elapsed since then and there was hardly any risk of persecution. In addition, the applicant had applied for refugee status only three years after his arrival in Poland, which would suggest that he had not felt endangered. In the President's opinion the applicant was to be considered an economic migrant rather than a refugee. There were further no grounds to grant his request for a “tolerated stay”.
The applicant appealed against this decision to the Refugee Board (Rada do spraw uchodźców).
On 27 February 2007 the Board upheld the first-instance decision. The Board stressed that the applicant had failed to apply for refugee status earlier, which would suggest that he had not felt endangered. In addition, during the three years that he had spent in Poland he had been running an illegal business (car sales). In the Board's opinion, the applicant had only filed his application for refugee status to avoid extradition to the Russian Federation.
On 4 April 2007 the applicant filed an appeal with the Warsaw Regional Administrative Court against that decision. He alleged in particular that since he had been directly involved in the war in Chechnya he could be persecuted by the Russian authorities. He further stressed that even though the request for extradition concerned offences of a criminal nature, it was probable that the authorities might use the opportunity to punish him for his earlier military activities.
On 23 October 2007 the Warsaw Regional Administrative Court gave judgment. The court upheld the Board's decision in the part relating to the refusal to grant refugee status to the applicant. It further quashed the remainder of the decision relating to the application for a “tolerated stay”. The court held that there were no grounds for granting refugee status to the applicant. However, the court considered that there was a need to re‑examine the applicant's application for a “tolerated stay” in view of the available information concerning the functioning of the judiciary and respect for human rights in the Russian Federation.
On 24 January 2008 the Refugee Board quashed the decision in the part relating to the application for a “tolerated stay” and remitted the case to the first–instance authority.
On 1 April 2008 the President of the Office for Repatriation and Aliens gave a decision and refused to grant a “tolerated stay” to the applicant. The President held that while the situation in Ingushetia was not stable there was no indication that the applicant would be subjected to inhuman or degrading treatment if deported.
On 12 June 2008 the Refugee Board again quashed the first-instance decision and remitted the case.
On 14 October 2008 the President of the Office for Repatriation and Aliens refused to grant a “tolerated stay” to the applicant for the second time.
Upon an appeal by the applicant, on 3 April 2009 the Refugee Board quashed the first-instance decision and gave a decision on the merits granting the applicant a “tolerated stay”. The Board held that there was a strong reason to believe that the applicant, if expelled to the Russian Federation, might face torture or inhuman or degrading treatment.
The prosecutor appealed.
On 4 December 2009 the Warsaw Regional Administrative Court upheld the decision of the Refugee Board.
2. Extradition proceedings
In December 2006 the Polish authorities received an extradition request from the Russian authorities (the Public Prosecutor's Office of North Ossetia). The applicant was charged with taking part in the kidnapping for ransom of several inhabitants of the Tsalyk village (Nothern Ossetia) in June 1998.
On 31 January 2007 the Radom Regional Court allowed the extradition request. The court stressed that there was a high probability that the applicant had committed the offence with which he had been charged. The applicant appealed.
On 9 February 2007 the Radom Regional Court appointed a legal aid lawyer to represent the applicant in the proceedings relating to the imposition of the detention pending extradition.
On 21 March 2007 the Radom Regional Court detained the applicant pending extradition.
Subsequently, the applicant's wife appointed a lawyer to represent the applicant in the extradition proceedings.
On 4 April 2007 the Lublin Court of Appeal held a hearing and upheld the first-instance decision. The court repeated the reasons given by the court of first-instance. The applicant submits that his representative was not informed about the date of the hearing and therefore could not have been present.
On 8 November 2007 the Minister of Justice ordered the execution of the decision to extradite the applicant.
Following parliamentary elections, on 20 November 2007, the new Minister of Justice decided to stay the decision of 8 November 2007 until termination of the proceedings before the Court.
On 15 September 2009 the Ombudsman filed a cassation appeal against the decision of 4 April 2007 on the applicant's behalf.
On 17 January 2010 the Supreme Court quashed the decision of 4 April 2007 and ordered the Court of Appeal to reconsider the case.
On 7 April 2010 the Lublin Court of Appeal quashed the decision of the Radom Regional Court of 31 January 2007 and remitted the case to the Bielsko-Biała Regional Court.
On 25 June 2010 the Bielsko Biała Regional Court gave a decision and prohibited the applicant's extradition.
3. Interim measures
On 30 April 2007 the President of the Fourth Section decided to apply Rule 39 of the Rules of Court and to indicate to the Polish Government that the applicant should not be expelled to the Russian Federation until 10 May 2007.
On 10 May 2007 the Section decided to extend the interim measure until a period of 10 days had elapsed following the final decision in the administrative proceedings concerning the applicant's request for refugee status.
B. Relevant domestic law and practice
Provisions relating to the procedure for granting refugee status and “tolerated stays” to aliens are included in the “Act on granting protection to aliens within the territory of the Republic of Poland” of 13 June 2003. The Act provides in so far as relevant:
“Section 13. 1. Refugee status in the Republic of Poland shall be granted to an alien who fulfils the conditions for being recognized as a refugee specified in the Geneva Convention and the New York Protocol.
(...)
Section 6. 1. In a decision refusing to grant refugee status an alien shall be:
1) granted a permit for a tolerated stay, if the circumstances referred to in art. 97 sec. 1 point 1 have arisen, or
2) ordered to leave the territory of the Republic of Poland within the time-limit specified in the decision, which shall not exceed 30 days.
3) If an alien appeals against the decision refusing to grant refugee status, the appeals authority shall specify a new time-limit, which shall not exceed 14 days, for him or her to leave the territory of the Republic of Poland. (...)
3a. A time-limit for leaving the territory of the Republic of Poland shall not be specified in a decision to refuse refugee status if an alien has been placed in a guarded centre or arrested for the purpose of expulsion.
(...)
Section 97. 1. An alien shall be granted a permit for a tolerated stay on the territory of the Republic of Poland if his / her expulsion:
1) was to be effected to a country where his/her right to life, to freedom and personal safety could be under threat, where he/she could be subjected to torture or inhuman or degrading treatment or punishment, forced to work, deprived of the right to a fair trial, or punished without any legal grounds within the meaning of the European Convention on Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950;
(...)
Section 98. An alien who has been granted a permit for a tolerated stay shall have vested in him or her the same rights as an alien who has been granted a residence permit for a fixed period, unless the provisions of this act or of other acts state otherwise.
Section 101. An alien who has been granted a permit for a tolerated stay must not have a decision on obligation to leave the territory of the Republic of Poland or a decision on expulsion rendered in his or her respect.
Section 104. 1. A permit for a tolerated stay shall be granted by:
(...)
2) the President of the Office:
a) by the court of its own motion, in a decision to refuse to grant refugee status, to withdraw refugee status or to withdraw asylum, if any of the circumstances referred to in art. 97 sec. 1 point 1 have arisen, or in a separate decision if these circumstances arose after the decision not to grant refugee status, including an order to leave the territory of the Republic of Poland, or to withdraw refugee status or to withdraw asylum has been rendered;
(...)
3) the Board, when examining an appeal against a decision not to grant refugee status, if any of the circumstances referred to in art. 97 sec. 1 point 1 have arisen.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that if he were expelled to the Russian Federation he would be subjected to ill‑treatment on account of his past involvement in military activities in the Chechen war. He also alleged under Article 6 that if extradited to the Russian Federation he would receive an unfair trial there.
2. The applicant further complained under the procedural limb of Article 3, alleging that the extradition proceedings were unfair.
3. Under Article 5 § 1 (f) in connection with Article 5 § 4 the applicant complained that he was not granted a legal aid lawyer to represent him during the first set of the extradition proceedings and that his privately appointed lawyer was not informed about the date of the appeal hearing before the Lublin Court of the Appeal.
THE LAW
A. The complaints under Articles 3 and 6 of the Convention
By letter of 18 August 2010 the applicant's representative informed the Court that, he wished to withdraw his application in so far as it concerned complaints under Articles 3 and 6 of the Convention.
The Court notes that on 4 December 2009 the applicant was granted the right to a “tolerated stay”. In addition, on 8 July 2010 the Bielsko-Biała Regional Court had prohibited the applicant's extradition to the Russian Federation. In view of the above the Court observes that the applicant no longer risks deportation from Poland. In these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of this part of the application. 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 this part of the case.
In view of the above, it is appropriate to strike this part of the case out of the list, and to discontinue the application of Rule 39 of the Rules of Court.
B. The complaints under Article 5 § 1 (f) in connection with Article 5 § 4 of the Convention
The applicant complained under Article 5 § 1 (f) in connection with Article 5 § 4 of the Convention that he was not granted a legal aid lawyer to represent him during the first set of the extradition proceedings and that his privately appointed lawyer was not informed about the date of the appeal hearing before the Lublin Court of the Appeal.
The Court firstly observes that the applicant does not complain about the proceedings relating to the imposition of the detention pending extradition but alleges lack of adequate representation in the proceedings in which the merits of the extradition request were examined. It further considers that the substance of this complaint falls to be examined under Article 6 of the Convention.
In this respect the Court reiterates that extradition proceedings do not concern a dispute (“contestation”) over an applicant's civil rights and obligations (see, inter alia, RAF v. Spain (partial dec.), no. 53652/00, ECHR 2000-XI; and A.B. v. Poland (dec.), no. 33878/96, 18 October 2001). It further recalls that the words “determination ... of a criminal charge” in Article 6 § 1 of the Convention relate to the full process of examining an individual's guilt or innocence in respect of a criminal offence, and not merely, as is the case in extradition proceedings, to the process of determining whether or not a person may be extradited to a foreign country (see, among others, RAF, cited above; Eid v. Italy (dec.), no. 53490/99, 22 January 2002; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 82, ECHR 2005‑I).
Therefore, Article 6 is not applicable to the present case in so far as the applicant complained about the fairness of the first set of the extradition proceedings before the Polish courts. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to its Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Rule 39 of the Rules of the Court;
Decides to strike the application out of its list of cases in so far as it concerns the applicant's complaints under Articles 3 and 6 of the Convention;
Declares inadmissible the remainder of the application.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy