FIRST SECTION
DECISION
Application no. 55091/13
Ibragim Khasan Ogly MUSAYEV
against Russia
The European Court of Human Rights (First Section), sitting on 23 September 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 28 August 2013,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having regard to the submissions of the Governments of the Russian Federation and Azerbaijan submitted in reply to the request of factual information under Rule 54 § 2 (a) of the Rules of Court.
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ibragim Khasan Ogly Musayev, is an Azerbaijani national, who was born in 1992 and lived in Shopsha, Yaroslavl Region. He was represented before the Court by Ms O.A. Sadovskaya, a lawyer practising in Nizhniy Novgorod. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The Azerbaijani Government were represented by their Agent, Mr Ç. Asgarov.
2. On 11 September 2013 the President of the Section decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the Russian Federation, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Azerbaijan until further notice. The President of the Section also decided to request the Governments of the Russian Federation and Azerbaijan, under Rule 54 § 2 (a) of the Rules of Court, to submit factual information regarding the extradition proceedings, the criminal prosecution of the applicant in Azerbaijan and his alleged employment by the Ministry of National Security of the Autonomous Republic of Nakhchivan (“the MNS”).
3. The facts of the case, as submitted by the applicant and the Governments of the Russian Federation and Azerbaijan, may be summarised as follows.
4. On 2 September 2012 the applicant left Azerbaijan and travelled to the Russian Federation to live with his father in the village of Shopsha, Yaroslavl Region.
5. On 26 November 2012 notification was sent to the applicant in Azerbaijan that he was being drafted into the armed forces. His relatives informed the authorities that he had moved to Russia. In response, on 3 December 2012 the Nakhchivan city department of the State Service for Mobilisation and Military Draft of the Nakhchivan Autonomous Republic requested the police and prosecution authorities to search for the applicant.
6. On 14 December 2012 the Nakhchivan City Prosecutor’s Office instituted criminal proceedings against the applicant on charges of fraud and misappropriation. According to the investigation, the crimes had been committed in July 2012 against a restaurant and a private individual. The proceeds of the crime totalled some 2,000 euros (EUR).
7. On the same day an investigator at the Nakhchivan City Prosecutor’s Office ordered the applicant’s search and arrest for the purpose of serving an indictment on him.
8. On 25 December 2012, at the request of the Nakhchivan City Prosecutor, the Nakhchivan City Court ordered the applicant’s arrest and two months’ detention from the date of his apprehension.
9. On an unspecified date in December 2012 the applicant told the Azerbaijani media that he was a former agent of the MNS, that he had witnessed the torture of Mr T.Z. on the premises of the MNS in Nakhchivan from 24 to 27 August 2011, and that Mr T.Z. had died as a result of torture. In this connection, he gave the names of the senior officials of the MNS who had allegedly tortured that person.
10. On 8 January 2013 the criminal case against the applicant was suspended pending his arrest.
A. Asylum proceedings
11. In December 2012 the applicant moved from the Yaroslavl Region to Moscow for the purpose of requesting asylum.
12. On 16 January 2013 the applicant applied for asylum to the Moscow Department of the Federal Migration Service (“the MD FMS”). His statements to the immigration authorities and the media contained the following allegations:
(a) He was a former employee of the MNS and a key witness to Mr T.Z.’s death. He had witnessed security officers of the Nakhchivan Autonomous Republic torturing Mr T.Z. and hanging him;
(b) After Mr T.Z.’s death, the wife of the deceased, Mrs A., started to complain to various authorities about the killing of her husband. The applicant was instructed by his employer to contact her and use blackmail to make her withdraw her complaints. In one of his interviews he stated that he had videotaped himself and Mrs A. having sexual intercourse. In another interview he stated that he had asked her to go with him to deliver drugs to someone and on their way they had been stopped by undercover police officers who had “found drugs” in their car; Mrs A. had been warned that if she did not withdraw her complaints, she would be charged with drug trafficking.
(c) When Mrs A. refused to withdraw her complaints the MNS ordered the applicant to kill her. He refused and fled to Russia.
13. On 21 January 2013 the applicant received notification from the MD FMS that his asylum request had been accepted for consideration. Subsequently, he left Moscow and went to the Yaroslavl Region without notifying the immigration authorities. The Moscow address which he had provided to the MD FMS was later discovered to be false.
14. On 6 February 2013 the applicant was arrested by the law‑enforcement authorities in the Yaroslavl Region on the basis of the search-and-arrest warrant issued in Azerbaijan.
15. On 21 April 2013, having considered the merits of the applicant’s asylum request, the MD FMS decided to refuse it. The relevant parts of the decision read as follows:
“Musayev Ibragim substantiated his request by claiming that his life had been threatened by the MNS of Azerbaijan.
He confirmed his identity by [presenting his Azerbaijani passport] ...
He refused to provide his military service identification card, stating that it was ‘a state secret’...
Musayev I.G. reasoned the existence of a threat to his life ... by the fact that he had refused to comply with an order issued by the MNS to kill a person ...
[He stated that] between 2010 and 2012 he had worked as a secret agent for the MNS. He refused to answer the question whether he had followed any secret service training in the MNS, since it was ‘a state secret’.
Musayev Ibragim stated that ... as a result of his failure to comply with an order to ‘kill a person’ he had started to receive threats personally from the Minister of National Security ... [and] that to save his life he had fled to Russia ... [In Russia] he had started receiving further threats ... and four to five times he had been offered a monetary reward of [EUR 95,000 to EUR 380,000] for his ‘silence’ and keeping the state secret.
...
The analysis of Musayev Ibragim’s personal file demonstrates that the reason which triggered his departure from his home country and his unwillingness to return was not a threat to his life from the MNS, but a real fear of arrest for fraud.
The statements of the applicant are contradictory.
Musayev Ibragim ... was not a member of any political, civic or religious association in Azerbaijan, and was never persecuted on ethnic grounds. His employment by the MNS is not proven by any documents.
During the check of his declared place of residence in Moscow ... [it had proven to be non-existent] and this fact demonstrates the lack of sincerity in the applicant’s statements ...
The circumstances mentioned above prove that there are no reasonable grounds to believe that Musayev Ibragim would be a victim of persecution in Azerbaijan ...”.
The decision also contained an extensive section analysing the international human-rights obligations of Azerbaijan, its human-rights record as reported by NGOs and the Commissioner for Human Rights of the Council of Europe, reports on the ethnic, social and economic situation in the country, as well as migration dynamics.
16. The applicant’s representative, Mr S., complained against the decision to the Federal Migration Service (“the FMS”). The complaint stated that the regional immigration authorities had failed to consider two facts: first, that the applicant had left Azerbaijan before the institution of criminal proceedings against him; and secondly, that given the reports of human-rights organisations about the practice of torture and other human-rights violations in Azerbaijan, the applicant would be exposed to those risks, especially in view of the political nature of his prosecution.
17. On 4 July 2013 the FMS issued decision No. 1198 upholding the decision of the regional authorities. The relevant parts read as follows:
“It must be observed that the applicant’s statement that the reason for his presence in Russia is to seek asylum is not corroborated by the facts ... After arriving on 2 September 2013 he did not lodge his request until January 2013 after the period of his lawful stay [in Russia] had expired. Publications on the internet signed by him started to appear only in November 2012 (after leaving Azerbaijan and at the end of the period of lawful stay in Russia).
The asylum seeker claims that he was an agent of the MNS, but does not provide any supporting documents and only refers to information on the internet as proof.
The claim that since the spring of 2011 he has been persecuted by the leadership of the MNS as a result of his refusal to kill a woman ... has also not been proved.
In the spring of 2011 he ... obtained a passport in his name for travelling abroad ... and until his arrival in Russia in September 2012 he repeatedly travelled outside Azerbaijan, including a trip to Iran in August 2012 with his wife.
From Iran he returned with his wife to Azerbaijan, despite his allegation that his life was threatened there ... [and only one month] later left for Russia.
The analysis of the decision by the MD FMS, the case file, the allegations of the asylum seeker, and information of the FMS and the Ministry of Foreign Affairs on the situation in Azerbaijan demonstrate that ... there are no reasonable grounds for [Mr Musayev’s] alleged fear of persecution in Azerbaijan.”
18. On 8 August 2013 the applicant’s representative, Mr S., appealed against the above decisions to the Zamoskvoretskiy District Court of Moscow. Neither the applicant nor his representative informed the Court about the outcome of the appeal.
B. Extradition proceedings
19. On 12 February 2013 the Deputy Prosecutor General of Azerbaijan forwarded to the Russian authorities an extradition request in respect of the applicant. The relevant parts of the request read as follows:
“We guarantee that in accordance with international law Musayev I.G. will be provided in Azerbaijan with all the facilities for defence, including the services a of defence counsel, he will not be tortured or subjected to any inhuman or degrading treatment or punishment (Article 3 of the European Convention, and relevant conventions of the UN and the Council of Europe).
The Prosecutor General of Azerbaijan guarantees that the extradition request has not been lodged with the aim of persecuting [the applicant] on political, racial, religious or ethnic grounds.
The Prosecutor General of Azerbaijan guarantees that in accordance with Article 66 of the Convention on legal cooperation and relations in civil, family and criminal matters of 22 January 1993 Musayev I.G. would be prosecuted only for the crime which served as the basis for this extradition request, and after his trial or, in case of conviction, after serving his sentence he would be free to leave Azerbaijan. Musayev I.G. will not be extradited, expelled or transferred to any other State without the consent of the Russian competent authorities”.
20. On 23 July 2013 the Deputy Prosecutor General of the Russian Federation authorised the applicant’s extradition, stating that there were no obstacles to it under international law and Russian legislation.
21. The applicant’s representative, Mr S., challenged the authorisation in court. The complaint stated that the asylum proceedings were still pending and that the criminal prosecution of the applicant had a political nature, because he “engages in human rights defence and reveals facts of human rights violations in Azerbaijan”.
22. On 6 August 2013 the applicant was released from detention on his own recognisance and immediately fled from his last known place of residence in Russia. According to the statements of his relatives and representatives, the applicant avoided any contact with the law-enforcement authorities.
23. On 2 September 2013 the Yaroslavl Regional Court considered the complaint against the extradition authorisation in the absence of the applicant, who had avoided any contact with the Russian authorities. The Regional Court upheld the authorisation. The relevant parts of the judgment read as follows:
“The defence counsel Mr S. stated in court that there were no reasons to extradite Musayev I.G., who had been persecuted by officers of the Ministry of National Security of Azerbaijan on political grounds ... In the event of extradition the police of the Nakhichevan Autonomous Republic would subject Musayev to violence and torture ...
The defence witness Mr M. stated that his son ... had started living with him in the village of Shopsha, Yaroslavl Region in August 2012, and that according to [an unidentified] colonel of the MNS his son was an agent of the security services ...
The prosecution stated that the complaint should be dismissed, since all the arguments of the defence had been refuted during the extradition check ...
[T]he court considers the extradition authorisation ... to be reasonable and lawful ...
The arguments of the defence counsel that the asylum proceedings are not yet finished are erroneous.
... The case materials demonstrate that the decision of the Federal Migration Service [to refuse asylum] of 21 April 2013 was considered lawful and upheld on appeal on 4 July 2013 ...
The opinion of the complainant that Musayev I.G. must not be extradited to another State, since his criminal prosecution is of a political nature is arbitrary.
The case file contains no evidence proving that Musayev I.G. was employed by the Ministry of National Security, any political party or human rights organisation. The statements of Musayev and his father that [the applicant] is being persecuted as a former agent of the MNS are unsubstantiated.
The extradition request of the Prosecutor General of Azerbaijan guarantees that he will not be subjected to torture, inhuman or degrading treatment or punishment and that the request does not pursue any political motives ...
The court examined the materials submitted by the defence counsel about possible human rights violations in the Nakhichevan Autonomous Republic.
Having regard to the generally positive situation regarding respect for human rights in the State seeking extradition, the specific circumstances of the present case and the guarantees of the Azerbaijani authorities, the court does not consider that there are any reasonable grounds to believe that [the applicant would be subjected to torture, inhuman or degrading treatment]”.
24. The applicant’s representative allegedly appealed against the judgment to the Supreme Court of the Russian Federation. However, neither the applicant nor his representative informed the Court about the outcome of that appeal.
C. Information submitted by the Governments of the Russian Federation and Azerbaijan under Rule 54 § 2 (a) of the Rules of Court
25. On 3 October 2013 the Government of the Russian Federation informed the Court that they were not aware of any documents proving the applicant’s employment by, or any other cooperation with, the MNS of the Nakhichevan Autonomous Republic. They highlighted the fact that the extradition request did not contain such information either.
26. On 7 October 2013 the Government of Azerbaijan stated to the Court that the applicant had never been an employee of the MNS and had not cooperated with it in any other form.
27. The Government of Azerbaijan also stated that the criminal investigation into the death of Mr T.Z. had been conducted by the Nakhichevan City Prosecutor’s Office, but that the applicant had no relation to the case or the investigation.
D. Information on the applicant’s case by human-rights activists and non-governmental organisations
28. In support of the applicant’s account of events his representative submitted to the Court several letters and statements of human-rights activists and non-governmental organisations.
29. The statement of 12 April 2013 by the Human Rights House Foundation urged the Court to stay the applicant’s extradition to Azerbaijan in view of the risk of ill-treatment. The statement does not contain any specific information on the applicant’s case, but provides a summary of international reports on the situation in Azerbaijan in general and in the Nakhichevan Autonomous Republic in particular.
30. In a letter of 3 June 2013 Ms Malahat Nasibova, a well-known human-rights activist and president of the Democracy and NGO Development Resource Centre, an NGO based in Nakhichevan, asked the Russian authorities not to extradite the applicant to Azerbaijan, alleging that he had been involved in the case of Mr T.Z. and risked “serious punishment” by the authorities.
31. In a letter of 23 August 2013 the lawyer of the deceased Mr T.Z. stated that the applicant, according to his statements, was a “key witness” to Mr T.Z.’s death and that he had been forced to leave Azerbaijan under pressure from the authorities.
COMPLAINTS
32. The applicant complained under Articles 3 and 8 of the Convention that his extradition to Azerbaijan would expose him to the risk of ill‑treatment and sever his ties with family members living in Russia.
THE LAW
A. Complaint of the risk of treatment contrary to Article 3 of the Convention in the event of extradition to Azerbaijan
33. The Court reiterates that Contracting States have the right, as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94), and that the right to asylum is not explicitly protected by either the Convention or its Protocols (see Salah Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007 I (extracts)).
34. However, it is the settled case-law of the Court that expulsion or extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008, and Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161).
35. In determining whether it has been shown that the applicant runs a real risk of suffering treatment proscribed by Article 3 if extradited, the Court will examine the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (see Saadi, cited above, § 128).
36. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it (see Ryabikina v. Russia, no. 44150/04, § 112, 7 June 2011).
37. Turning to the present case, the Court observes from the outset that the case concerns extradition between two High Contracting Parties to the European Convention on Human Rights, which have undertaken to secure the fundamental rights guaranteed under the Convention (see Chankayev v. Azerbaijan, no. 56688/12, § 80, 14 November 2013, with further references). In such circumstances the Court reiterates that in the absence of any proof to the contrary, it must be presumed that the State in question will comply with its obligations under the Convention. (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 342, ECHR 2011, with further references)
38. In her submissions to the Court the applicant’s representative relied heavily on the general reports regarding the situation with respect to human rights in Azerbaijan. Notably, she cited the conclusions and recommendations of the visits to Azerbaijan by Thomas Hammarberg on 5 March 2010 and Nils Muižnieks on 22-24 May 2013 in their capacity as Commissioners for Human Rights of the Council of Europe. Both reports acknowledged several incidents considered as human-rights violations in respect of journalists, including unjustified and selective prosecutions and general harassment by the authorities. The applicant’s representative also mentioned the issues regarding the independence of the judicial system and instances of torture reported by human-rights organisations.
39. While being concerned with these reports, and most notably with the findings of the successive Commissioners for Human Rights of the Council of Europe, the Court nevertheless reiterates its well-established opinion that reference to a general problem concerning human-rights observance in a particular country cannot alone serve as a basis for refusal of extradition (see Dzhaksybergenov v. Ukraine, no. 12343/10, § 37, 10 February 2011). Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence, with reference to the individual circumstances substantiating his fears of ill-treatment (see Mamatkulov and Askarov [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I, and Dzhaksybergenov, cited above, ibid.).
40. Considering the materials in its possession, the Court cannot conclude that the applicant has met that standard of proof. Neither before this Court, nor before the Russian authorities did the applicant produce any evidence of his employment by the Ministry of National Security of the Nakhichevan Autonomous Republic or his persecution by the authorities.
41. In the Court’s opinion the national authorities in both the asylum and the extradition proceedings acted in line with their obligation under Article 3 of the Convention to inquire into the claims of the real risk of ill‑treatment. Before rejecting the applicant’s allegations as unsubstantiated, the immigration and prosecution authorities, as well as the courts, afforded him and his representative opportunities to present evidence, and despite the lack of such evidence, they examined the general situation in Azerbaijan, the assurances of the Azerbaijani authorities, and the applicant’s own conduct (see paragraphs 15, 17 and 23 above). Accordingly, the Court is satisfied that the assessment made by the Russian authorities was adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources (see Salah Sheekh, cited above, § 136, and Ismoilov and Others v. Russia, no. 2947/06, § 120, 24 April 2008).
42. The Court notes that the asylum proceedings were tainted by the unwillingness on the part of the applicant to cooperate with the Russian authorities, whose protection he sought. He did not in any way substantiate his alleged association with the secret services, gave the immigration authorities a false address of his residence in Russia, moved between the regions without notifying them and, relying on the excuse that they were “state secrets”, refused to produce any military service identification in his possession or to answer any questions concerning his alleged military training (see paragraphs 13 and 15 above).
43. Without reflecting on the exhaustion of domestic remedies aspect of the case, it must be taken into account that the applicant also failed to supply this Court with any information pertaining to the appeals lodged in both the asylum and the extradition proceedings (see paragraphs 18 and 24 above). Effectively, the applicant and his representative terminated all contacts with the Court after the indication of an interim measure preventing the applicant’s extradition to Azerbaijan, whereas the judgments of the appeal courts would doubtless have constituted significant developments in the case.
44. Lastly, the statements and letters of human-rights activists and organisations produced by the applicant’s representatives at national level and before this Court (see paragraphs 29-31) are unable to persuade the Court to depart from its findings, since all of them focus predominantly on the general situation in Azerbaijan and in respect of the present case rely on the applicant’s own statements and reports of his statements in the media.
45. In the light of the considerations above, it must be concluded that the applicant’s claims that he would risk ill-treatment in the event of extradition to Azerbaijan presented to the Russian authorities as well as the complaints to this Court were devoid of any convincing corroboration and were generally unsubstantiated. Accordingly, they are manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible.
B. Complaint of interference with respect for family life contrary to Article 8 of the Convention in the event of extradition to Azerbaijan
46. The applicant’s complaint under Article 8 of the Convention that his family ties in Russia would be severed in the event of his extradition to Azerbaijan were never brought by the applicant or his representative to the attention of the national authorities, in the course of either the asylum or the extradition proceedings. Accordingly, the applicant failed to exhaust the available and effective domestic remedies in respect of this complaint. The complaint under Article 8 must therefore be declared inadmissible under Article 35 § 1 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
In view of the conclusions reached above, the Court considers it appropriate to discontinue the application of Rule 39 of the Rules of Court.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy