FIFTH SECTION
Application no. 44344/12
Magomed Ibragimovich NALGIEV
against Ukraine
lodged on 17 July 2012
STATEMENT OF FACTS
The applicant, Mr Magomed Ibragimovich Nalgiev, is a Russian national, who was born in 1983. According to his lawyer, he is currently detained in the Pre-Trial Detention Centre No. 1 in the town of Pyatigorsk, Russia. The applicant is represented before the Court by Mr A. Maksymov, a lawyer practising in Kyiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant and his extradition
According to the applicant, before 2010 on two occasions the Russian special military forces surrounded him and other people praying in the mosques in Sagopshi and Malgobek (Russian Federation). On the first occasion the applicant was questioned by the police about his religious believes. He also alleges that some of his acquaintances disappeared and two of them were shot by State agents after the first questioning in the Sagopshi village.
On 28 October 2010 the applicant was driving his neighbour, K., to the city of Nazran (Russian Federation). They were stopped by the police. K. threatened the police with a grenade. Shots were allegedly fired and the applicant fled since he had feared to be tortured in case of his arrest. Apparently, K. also fled. According to the applicant, in March 2011 K. was killed, together with another person, by State agents. According to official sources, K. was killed while resisting his arrest.
On 28 October 2010 the applicant’s brother was arrested in Russia. According to the applicant, the police officers planted a grenade on his brother. The applicant submitted a copy of a certificate stating that the applicant’s brother had been questioned with the use of a lie detector. He had positively reacted when asked whether a grenade had been planted on him by the police. The applicant also states that his brother was ill-treated in detention and was detained in order to induce the applicant to surrender. The applicant’s brother was released in May 2011.
On 8 November 2010 criminal proceedings were instituted in the Russian Federation against the applicant for unlawful use of arms and for the use of violence against State agents.
In December 2010 the applicant’s wife was called by the police. Subsequently she left Russia and fled to Egypt.
On 28 January 2011 the applicant was put on a wanted list.
In February 2011 the applicant left the Russian Federation.
On 26 March 2011 the applicant was stopped in Kyiv International Airport when attempting to fly to Egypt with false documents.
On 2 April 2011 the applicant was charged by the Russian authorities with unlawful use of arms and with the use of violence against State agents. It was noted that on 28 October 2010 the police stopped the car with the applicant and K. The latter was on the federal wanted list for unlawful use of arms and participation in unlawful military unit. K. had threatened the police officers with a grenade and he and the applicant had escaped. When running away the applicant also dropped his gun.
On the same day the Malgobekskiy Town Court of Ingushetiya (Russian Federation) ordered the applicant’s pre-trial detention and the applicant was put on a wanted list circulated internationally.
On 4 April 2011 the applicant applied for refugee status in Ukraine.
On 5 April 2011 the Boryspilskyy Local Court authorised the applicant’s 40-days detention pending an extradition request (тимчасовий арешт). The court noted that the applicant was wanted by the Russian authorities upon suspicion of having committed a crime.
Being informed about the applicant’s arrest, on 29 April 2011 the Prosecutor General of the Russian Federation requested the Prosecutor General of Ukraine to extradite the applicant.
On 12 May 2011 the Shevchenkivskyy District Court of Kyiv prolonged the applicant’s detention for up to 18 months pending extradition proceedings (екстрадиційний арешт).
On 8 July 2011 the same court authorised the applicant’s further detention.
On 27 July 2011 the Boryspilskyy Local Court sentenced the applicant to a fine for use of forged documents.
On 7 September, 2 November, 28 December 2011 and 28 February 2012 the Shevchenkivskyy District Court further authorised the applicant’s detention.
On 23 March 2012 the Deputy Prosecutor General of Ukraine decided that the applicant could be extradited to the Russian Federation.
The applicant appealed against this decision. He stated that he would be persecuted in the Russian Federation on political, ethnic and religious grounds. The applicant underlined that he would be persecuted for his political views and this allegation, according to him, was proved by the criminal charges against him. He alleged that since he was suspected of terrorism, he would be tortured. The applicant also submitted that on 7 March 2012 he had been granted UNHCR refugee status. He also referred to various international sources, such as, the Amnesty International, reporting about the lack of human rights protection in Ingushetiya.
On 26 April 2012 the Shevchenkivskyy District Court of Kyiv upheld the decision of 23 March 2012 referring to the decisions of the national courts in the applicant’s refugee status proceedings (see below).
The applicant appealed reiterating his arguments.
On 17 July 2012 the Kyiv City Court of Appeal, by a final decision, upheld the decision of 26 April 2012.
On 15 August 2012 the applicant was extradited to Russia.
After his extradition, on 27 August 2012 the General Prosecutor’s Office of the Russian Federation informed the Ukrainian authorities that the applicant would face a fair trial and that the criminal proceedings against him would not be discriminatory; in case of need he would receive adequate medical assistance; the Ukrainian authorities would have the possibility to visit the applicant and to be present at his trail and that they would be informed about the final decision in his case.
The applicant’s lawyer submitted that in May 2013 the applicant had been found guilty of illegal possession of arms and organisation of an illegal armed group and sentenced to six years and four months’ imprisonment.
2. Refugee status proceedings
On 22 April 2011 the Kyiv Regional Migration Service rejected the applicant’s request for refugee status as unsubstantiated.
The applicant challenged this refusal before the court. He complained that the above decision was not motivated. He also alleged that the Migration Service authorities had failed to question him thoroughly about his situation. The applicant stated that since 2010 he had been persecuted in Ingushetia for no reason. He believed that these persecutions were targeted against him because he was a Muslim Ingush. In October 2010 armed people had broken into the applicant’s house but since he was away, had arrested his brother instead. The applicant further referred to the situation in Ingushetia highlighted by the Amnesty International and stated that his return to Russia would breach Article 3 of the Convention.
On 6 June 2011 the Kyiv City Administrative Court rejected the applicant’s complaint.
The court noted that on 20 April 2011 the applicant was questioned by the migration authorities. The applicant substantiated his request by stating that his brother had been arrested by masked persons and that people in his region had been arrested by the law-enforcement authorities. It was also established, following questioning, that the applicant was not a member of any political, military or religious union and had not been involved in any incidents involving the use of violence arising from religious views, ethnicity, race or political believes.
Moreover, the applicant illegally arrived in Ukraine, was stopped attempting to cross the State border with forged identity papers and had applied for refugee status only after his arrest. The court finally noted that the applicant was on a wanted list for “having committed a serious crime” and did not substantiate his application for a refugee status.
On 23 February 2012 the Kyiv Administrative Court of Appeal upheld this decision.
On 7 March 2012 the applicant was granted UNHCR refugee status.
On 30 March 2012 the applicant’s lawyer lodged an appeal in cassation. He requested to renew him the time-limit for appeal since he had received the copy of the decision of 23 February 2012 on 16 March 2012 only.
On 5 April 2012 the Higher Administrative Court of Ukraine considered that the reasons invoked by the applicant’s lawyer did not justify the late submission of appeal and provided him with a month to substantiate his request for an extension of the time limit.
On 24 April 2012 the applicant’s lawyer submitted another request reiterating that he had received the copy of the appealed decision on 16 March 2012. No further information about these proceedings is available.
On 11 June 2012 the Finnish Immigration Service, following a request lodged by the UNHCR, granted the applicant refugee status in Finland.
COMPLAINTS
The applicant complains, referring to his personal situation and to the evidence on the situation in Ingushetia available from various international sources, that he is accused of association with “insurgency groups” and those individuals who face such charges run a serious risk of being subjected to treatment prohibited by Article 3 of the Convention. As for his personal situation the applicant submitted that he was an Ingush pious Muslim young male, who had been interrogated about his religious belief by the Russian law enforcement authorities. He was also present when another man threatened the police officers with a grenade. The applicant’s brother has been “abducted” and criminal charges supported by fabricated evidence had been brought against him. The applicant states that in view of the above, the Ukrainian authorities breached Article 3 of the Convention by failing to examine carefully the applicant’s situation and by extraditing him to the Russian Federation.
The applicant also complains that his extradition put him at serious risk of a flagrant denial of justice contrary to Article 6 of the Convention. His brother has faced unfair criminal proceedings and unfair trials in the Russian Federation. This was confirmed by many respected sources, including, this Court.
The applicant complains under Article 13 of the Convention that there is no effective remedy in respect to his above complaints.
The applicant finally complains that his rights under Articles 6 § 2 and 34 of the Convention were breached. In particular, he submitted that the Ukrainian authorities referred to him as a person who “had committed an offence” and that “the extradition proceeding contain procedural deficiencies that hinder effective and prompt contact between persons subject to extradition proceedings”.
QUESTIONS TO THE PARTIES
1. Before deciding on the applicant’s extradition, did the authorities assess appropriately his claim that he would be exposed to a risk of being subjected to treatment prohibited by Article 3 of the Convention if he were to be returned to the Russian Federation?
2. In the light of the applicant’s claims and the documents which have been submitted, has the applicant been exposed to a real risk of suffering from treatment which violates Article 3 of the Convention?
3. In the light of the applicant’s claims and the documents submitted, has the applicant, by his extradition, been exposed to a real risk of a flagrant denial of justice contrary to Article 6 of the Convention?
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