Information Note on the Court’s case-law 246
December 2020
Shiksaitov v. Slovakia - 56751/16 and 33762/17
Judgment 10.12.2020 [Section I]
Article 5
Article 5-1-f
Extradition
Authorities’ lack of diligence in determining admissibility of extradition of applicant to his country of origin despite refugee status granted by another EU member State: violation
Facts – The applicant, a Russian national of Chechen origin, was granted refugee status in Sweden on grounds of his political opinions. An international arrest warrant had been issued against him on account of alleged acts of terrorism committed in Russia. While travelling, he was apprehended at the Slovak border as a person appearing on Interpol’s list of wanted persons. He was later arrested and held in detention while the Slovak authorities conducted a preliminary investigation into the matter, followed by detention in view of extradition to Russia. In November 2016, the Supreme Court found his extradition to be inadmissible in light of his refugee status. He was released and administratively expelled to Sweden.
Law – Article 5 § 1 (f):
(a) The applicant’s initial apprehension and arrest
The applicant had been apprehended in order that he could be taken to the border police station, as his name had been found on the international list of wanted persons. He had been arrested the next day after the authorities had verified that he had still been the subject of an international search and that Russia had confirmed that an extradition request would be sent in good time. Those measures had served the purpose of arresting a person “against whom action is being taken with a view to extradition”, within the meaning of Article 5 § 1 (f). Indeed, at that point in time the fact that the applicant had refugee status had not been known to the Slovak authorities. This phase of the applicant’s deprivation of liberty therefore disclosed no appearance of any arbitrariness.
(b) The applicant’s further detention
The applicant’s further allegations under Article 5 § 1 (f) concerned the period of preliminary detention, and the period of detention pending extradition. Both detention orders had been issued in compliance with the relevant provisions of the domestic law.
(i) Alleged failure to give due consideration to the applicant’s recognition as a refugee in Sweden
The Court has consistently held that the detention of a person for the purpose of extradition was rendered unlawful and arbitrary by the existence of circumstances that under domestic law excluded the extradition of that person. However, in contrast, it could not be asserted in the instant case that the applicant’s extradition had been completely banned.
The applicant had been granted refugee status in Sweden – not in Slovakia. Such a decision was extraterritorially binding in that an award of refugee status by Sweden, as one of the State Parties to the 1951 Geneva Convention, could be called into question by Slovakia only in exceptional circumstances giving rise to the appearance that the beneficiary of the decision in question manifestly fell within the terms of the exclusion provision of Article 1F of the 1951 Convention and therefore did not meet the requirements of the definition of a refugee contained therein. Thus there might be situations where information which came to light in the course of extradition proceedings concerning a recognised refugee might warrant a review of his or her status.
It had been legitimate for the Slovak courts to examine whether an exclusion provision might be applicable in respect of the applicant – all the more so given that it had been established that the Swedish authorities had not checked the Interpol database during the asylum proceedings in respect of the applicant and had not examined the nature of the criminal charge brought against him in Russia. In so doing, the Slovak authorities had had to consider all the circumstances of the applicant’s individual case. Given that the requesting State was the country in which the applicant had been persecuted (presumably because of his and his brother’s political activities), any evidence presented by it had to be treated with great caution when establishing whether or not the extradition request was based on fabricated charges or whether the crime giving rise to that request could be categorised as “non-political” within the meaning of Article 1F of the 1951 Convention and Article 12 § 2 (b) of Directive 2011/95/EU. Furthermore, since the Slovak authorities had initially concluded that the act amounted to a “non-political” offence, they had been obliged to examine whether the extradition might be precluded for other reasons, such as, in the instant case, insufficient evidence in support of the allegations made against the applicant.
The Slovak authorities therefore could not be blamed for having carried out the preliminary investigation, despite the applicant having been previously granted refugee status in Sweden. It could be regarded as being intrinsic to actions “taken with a view to extradition”. While the applicant’s extradition to Russia had eventually been declared inadmissible, this could not itself retroactively affect the lawfulness of the detention pending examination of the extradition request.
(ii) Whether the whole duration of detention was justified under Article 5 § 1 (f)
The salient issue was there whether it could be said that action had been taken with a view to the applicant’s extradition throughout the whole duration of his detention and consequently, whether it had been justified under Article 5 § 1 (f).
The applicant’s overall detention in view of his extradition had lasted one year, nine months and eighteen days (from 15 January 2015 to 2 November 2016). The authorities had been aware as far back as 16 January 2015 that the applicant had been granted asylum in Sweden, which had been rapidly confirmed by Interpol in Stockholm. The first effort on the part of the Slovak authorities to establish the circumstances surrounding the applicant’s refugee status had been made in late January 2015. By mid-February, the authorities had received an extradition request from their Russian counterparts. However, following the applicant’s hearing in March 2015, it had taken six months for the prosecutor to ask the Regional Court to allow the applicant’s extradition to Russia. More than three further months had elapsed before a hearing was held in January 2016, but which had been adjourned. In September 2016, a new hearing had been held, at which the extradition was authorised.
Lastly, while the Supreme Court had ruled in March 2015 that the exclusion provision of Article 12 § 2 (b) of Directive 2011/95/EU had been applicable to the applicant (given that he was suspected of having committed a serious non-political crime, which prevented Slovakia from accepting and applying the refugee status conferred on him by Sweden), in its decision of 2 November 2016 another chamber of the same court had reached the opposite conclusion – even though no new information had become available in the meantime. More importantly, information about the applicant’s refugee status (which had constituted the main reason for the decision of 2 November 2016), as well as documents relating to his criminal prosecution in Russia (which had allowed for an assessment – for the purposes of the applicability of the relevant exclusion clauses – of the political/non-political nature of his acts) had been available to the Slovak authorities since February 2015.
In the light of the above, the authorities had not proceeded in an active and diligent manner when gathering all necessary information and adjudicating legal challenges raised by the case at hand. Nothing had prevented the courts from reaching a final decision on the admissibility of the applicant’s extradition much earlier than they in fact had done. The grounds for the applicant’s detention therefore had not remained valid for the whole period concerned.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 5 § 5, on the basis that the applicant had not had an enforceable right to compensation for the violation of his rights under Article 5 § 1.
Article 41: EUR 8,500 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.
(See also Eminbeyli v. Russia, 42443/02, 26 February 2009; M. and Others v. Bulgaria, 41416/08, 26 July 2011, Information Note 143)
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This summary by the Registry does not bind the Court.
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