O.V.B. v. UKRAINE

FIFTH SECTION

DECISION

Application no. 34925/21
O.V.B.
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 30 May 2024 as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Kateřina Šimáčková, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 34925/21) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 July 2021 by a Russian national, Ms O.V.B. (“the applicant”), who was born in 1969 and lives in Dnipro;

the decision to give notice of the complaint under Article 3 of the Convention to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, and to declare the remainder of the application inadmissible;

the decision not to have the applicant’s name disclosed;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the decision to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the decision to extradite the applicant to the Russian Federation on charges of fraud. The applicant complained that her extradition would violate Article 3 of the Convention because, if extradited, she risked ill-treatment in a Russian prison because of a conflict between her partner and people involved in organised crime.

2.  The applicant entered the territory of Ukraine legally and in 2016 was granted a permanent residence permit.

3.  In November 2020 the applicant was arrested on an extradition request from the Russian authorities who sought her extradition on charges of fraud.

4.  In December 2020, while the applicant was detained in the Dnipro Pre‑Trial Detention Facility, the applicant’s lawyer sought to lodge an asylum application on her behalf with the Dnipro Regional Office of the State Migration Service (“the Migration Service”). The Migration Service refused the request, saying that an asylum application must be made to an authorised official by an asylum-seeker in person (see S.A. v. Ukraine, no. 7445/21, §§ 24-26, 24 February 2022 [Committee], for the description of the relevant legal framework).

5.  In January 2021 the applicant filled in and signed another asylum application and sent it to the Migration Service through officials at the detention facility. In it the applicant stated that she would be at risk of ill‑treatment in Russia because of her partner’s (Mr U.’s) conflict with his former business partner.

6.  From February to June 2021 the Migration Service repeatedly but unsuccessfully sought leave from the prosecutor’s office to visit the applicant in the detention facility to interview her for the purposes of lodging her asylum application.

7.  On 22 February 2021 the General Prosecutor’s Office granted the extradition request, finding that there were legal grounds for extradition.

8.  The applicant’s lawyer lodged an appeal with the courts against her extradition. On 3 June 2021 the Dnipro Court of Appeal upheld the extradition decision, finding that there were no grounds to set it aside since the charges against the applicant were for extraditable offences which were not time-barred, and the applicant did not seek asylum.

9.  In March 2021 the applicant’s lawyer challenged the Migration Service for inactivity, arguing that they had failed to provide the applicant with a certificate giving her the status of asylum-seeker and seeking an order that she be registered as an asylum-seeker.

10.  On 16 February 2022 the Third Administrative Court of Appeal dismissed the challenge because the applicant was held in detention and the Migration Service had duly sought to visit her to accept her application but had not been granted a permission to visit by the prosecutor’s office.

11.  The applicant’s partner Mr U. was also subject to extradition proceedings in Ukraine and lodged a request for interim measure under Rule 39 of the Rules of Court (application no. 31227/21). On 23 June 2021 the Court, under Rule 39 of the Rules of Court, indicated to the Government of Ukraine that U. should not be extradited until one week after the conclusion of the domestic proceedings related to his asylum request. However, according to the information received from the Government, U. had been extradited shortly before the Government received the Court’s letter notifying the interim measure. His application was struck out of the Court’s list of cases on 17 January 2022.

12.  On 9 July 2021 the Court indicated an interim measure in the applicant’s case in the same terms.

13.  In November 2021 the applicant was released from detention. She was required to give a personal undertaking not to abscond and not to leave the city of Dnipro without prior permission from the prosecutor or the court. According to the most recent available information, on 22 September 2023 a local court in Dnipro extended that obligation until 20 November 2023.

14.  On 16 March 2022 the Committee of Ministers of the Council of Europe, in the context of a procedure launched under Article 8 of the Statute of the Council of Europe, adopted Resolution CM/Res(2022)2, by which the Russian Federation ceased to be a member of the Council of Europe as from 16 March 2022. On 22 March 2022 the Court, sitting in plenary session in accordance with Rule 20 § 1 of the Rules of Court, adopted the Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights. It stated that the Russian Federation would cease to be a High Contracting Party to the Convention on 16 September 2022.

15.  The Ukrainian Government informed the Court that a number of bilateral and international agreements with the Russian Federation had been suspended following the full-scale armed attack by the Russian Federation on Ukraine. In particular, on 1 December 2022 Ukraine had withdrawn from the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases and a Protocol thereto which had previously governed, inter alia, cooperation in extradition matters between Ukraine and the Russian Federation. That Convention (also known as the Minsk Convention) had been the basis for the extradition request in the applicant’s case.

16.  The Government also pointed out that diplomatic relations with Russia had been broken off from 24 February 2022 and, from 26 February 2022, border crossings with Russia and Belarus were closed.

17.  The Government informed the Court that the General Prosecutor’s Office had not carried out any extraditions to the Russian Federation since 22 February 2022 and that implementation of the extradition of the applicant had been suspended.

THE COURT’S ASSESSMENT

18.  The Court notes that, together with her claims for just satisfaction, the applicant raised a new complaint under Article 2 of Protocol No. 4 to the Convention about a ban imposed on her leaving Dnipro without authorisation (pursuant to the personal undertaking not to abscond that she was required to give).

19.  In the Court’s view, this new complaint is not an elaboration of the original complaint under Article 3 of the Convention on which the parties have commented. It is therefore inappropriate to take this matter up within the framework of the present case (see Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, §§ 75-88, 27 November 2023).

20.  The Contracting States have the right, as a matter of international law and subject to their obligations under international treaties, including the Convention, to control the entry, residence and expulsion of aliens (see F.G. v. Sweden [GC], no. 43611/11, § 111, 23 March 2016). However, it is the Court’s settled case‑law that expulsion or extradition by a Contracting State may give rise to an issue under Article 3 and so engage the responsibility of that State under the Convention where substantial grounds have been shown for believing that the individual concerned, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).

21.  In cases where applicants have faced expulsion or extradition the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable (see Vijayanathan and Pusparajah v. France, 27 August 1992, § 46, Series A no. 241-B; Pellumbi v. France (dec.), no. 65730/01, 18 January 2005; and Etanji v. France (dec.), no. 60411/00, 1 March 2005).

22.  It has adopted the same stance in cases where the execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against through the appropriate courts (see Nasrulloyev v. Russia, no. 656/06, § 59, 11 October 2007; Rakhmonov v. Russia, no. 50031/11, §§ 34-37, 16 October 2012; and Budrevich v. the Czech Republic, no. 65303/10, §§ 64-72, 17 October 2013).

23.  The Court considers that the general approach established in its case‑law and summarised above should apply in the present case.

24.  Although the extradition order has not been formally revoked, as the case stands at present the risk referred to by the applicant is not imminent.

25.  After being arrested pursuant to the extradition request by the Russian Federation, the applicant twice sought to apply for asylum. She relied mainly on the risk of ill-treatment in a Russian prison because of her husband’s conflicts with people involved in organised crime.

26.  Although Russian Federation is no longer a party to the Convention, the general human rights situation in Russia is not such that any expulsion to the country would contravene Article 3 of the Convention (see U. v. France, no. 53254/20, § 111, 15 February 2024).

27.  The Court further emphasises that it does not appear from the materials at the Court’s disposal that the applicant belongs to any vulnerable group or to any group systematically exposed to ill-treatment in the requesting country. She is facing charges of fraud, that is to say, an ordinary criminal offence, and nothing indicates that those charges were politically motivated.

28.  The applicant’s account of her individual circumstances shows some weaknesses: her allegations about the risk of ill-treatment are general and vague. Her claims that she had been targeted by a particular businessman who she said ran a property business together with her partner were not supported by any relevant evidence.

29.  To be sure, because the right guaranteed is absolute, Article 3 of the Convention applies not only to danger emanating from State authorities but also where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the responsible State are not able to obviate the risk by providing appropriate protection (see F.H. v. Sweden, cited above, § 102). The applicant did not make any coherent argument, let alone provided evidence, to show the latter.

30.  The applicant’s fear of persecution in Russia is mainly based on U.’s alleged conflict with organised crime elements. However, he was extradited to Russia in June 2021 and the applicant did not allege that any of those fears materialised, which is a relevant factor in assessing the credibility of her account (see, for example, Cruz Varas and Others v. Sweden, 20 March 1991, §§ 76 and 79, Series A no. 201; Mamatkulov and Askarov v. Turkey, nos. 46827/99 and 46951/99, §§ 69 and 76, 4 February 2005; and contrast R. v. France, no. 49857/20, §§ 136-39, 30 August 2022).

31.  Moreover, at the domestic level, the appropriate venue for the assessment of the risks the applicant might face was the asylum process (see U.S. v. Ukraine (dec.), no. 61820/19, § 38, 20 May 2021 [Committee], and S.A. v. Ukraine, no. 7445/21 §§ 22-23, 24 February 2022 [Committee]).

32.  The Court acknowledges that the applicant faced difficulties in making the asylum request when she was detained. However, she has since been released from detention and there is no indication that she attempted to make the application again.

33.  Given that the applicant has not demonstrated that she would face any risk of ill-treatment if extradited, and her lack of interest in pursuing her asylum application, the Court considers that her complaint under Article 3 of the Convention does not meet the admissibility criteria set out in Article 35 §§ 1 and 3 and must be rejected in accordance with Article 35 § 4 of the Convention. The interim measure previously indicated to the Government under Rule 39 in this application ceases to have any basis.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 June 2024.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President