FIRST SECTION
Application no. 10226/13
Ramazan Teshtemirovich TERSHIYEV
against Azerbaijan
lodged on 5 February 2013
STATEMENT OF FACTS
The applicant, Mr Ramazan Tershiyev, is a Russian national, who was born in 1961 and is serving a prison sentence in Baku. He is represented before the Court by Mr E. Osmanov, a lawyer practising in Baku.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Background
The applicant is a Chechen who appears to have arrived in Azerbaijan in 2009. In July 2009 he was arrested while attempting to illegally cross the border from Azerbaijan to Russia together with several other persons.
On 5 April 2011 the Assize Court convicted the applicant, together with a number of other accused persons, of a number of serious criminal offences committed in Azerbaijan in 2009, including inter alia creation of an illegal organised armed unit, illegal border crossing, illegal possession of firearms, explosives and other weapons, and creation of a network of clandestine flats in Baku for temporary accommodation of members of illegal armed units operating in Chechnya. He was sentenced to fourteen years’ imprisonment. This conviction was upheld by higher courts. The applicant is currently serving this sentence in Prison No. 11 in Baku.
B. Criminal proceedings instituted against the applicant in Russia and the extradition request
By a decision of 6 September 2011, an investigator of the Vedeno District Department of the Ministry of Interior of the Russian Federation (“the Vedeno ROVD”) instituted criminal proceedings against the applicant under Article 208 § 2 (participation in an armed unit that is not envisaged by federal law) of the Criminal Code of the Russian Federation, on suspicion that, during the period from 2000 to 2007, the applicant had been an active member of an illegal armed unit operating in the Vedeno District of Chechnya under the command of Khuseyn Gakayev and that he was still a member of that unit at the time of institution of the criminal proceedings.
On 10 October 2011 the Vedeno ROVD issued a search warrant in respect of the applicant as a suspected person.
On 26 April 2012 the Vedeno ROVD formally charged the applicant as an accused person under Article 208 § 2 of the Criminal Code of the Russian Federation.
On 18 July 2012 the Vedeno ROVD issued an international search warrant in respect of the applicant.
By a decision of 20 July 2012, the Vedeno District Court of the Chechen Republic ordered the applicant’s remand in custody.
C. Extradition proceedings in Azerbaijan
In the meantime, in January 2012 the applicant applied to the UNHCR Baku Office with a request for asylum (It appears that, since the early 2000s, according to a mutual agreement and understanding between UNHCR and the Azerbaijani Government, processing of asylum applications by persons originating from Chechnya was separated from the ordinary Government procedures, and applications by members of this group were dealt with directly by UNHCR). In September 2012 the applicant was interviewed by UNHCR representatives and his application was rejected.
On 24 August 2012 the Deputy Prosecutor General of the Russian Federation formally requested the Prosecutor General’s Office of the Republic of Azerbaijan to extradite the applicant under the CIS Convention on legal assistance and legal relations in civil, family and criminal cases (“the 1993 Minsk Convention”). As an alternative to the extradition, in the event the extradition was subject to postponement under Article 64 of the 1993 Minsk Convention owing to the fact that the applicant was serving a prison sentence in Azerbaijan, he requested the applicant’s “temporary extradition” for a period of three months for the purpose of carrying out necessary procedural steps in the framework of the criminal proceedings pending in Russia.
The extradition request contained a number of assurances, including inter alia that the applicant would be prosecuted only in connection with the criminal offence he was charged with, that he would not be subjected to torture or ill-treatment, and that in the event of “temporary extradition” he would be returned to Azerbaijan no later than three months after he was handed over to Russian law-enforcement authorities.
By a decision of 26 November 2012, the First Deputy Prosecutor General of the Republic of Azerbaijan granted the extradition request and ordered the applicant’s “temporary extradition” to Russia for a period of three months.
The applicant, who had a lawyer, lodged an appeal against the temporary extradition order of 26 November 2012 with the Sabayil District Court, arguing inter alia that there was a serious risk that he would be tortured or ill-treated by the Chechen law-enforcement authorities if he was extradited.
By an inquiry letter of 17 January 2013, the judge of the Sabayil District Court dealing with the case requested the UNHCR Baku Office to provide information about grounds on which the applicant requested a refugee status and whether any decision had been taken by UNHCR in this respect.
By a letter of 23 January 2013, the UNHCR Baku Office informed the judge that the applicant’s asylum application had been rejected by UNHCR “at first instance”, but that the applicant had lodged an appeal against that decision which was pending consideration by UNHCR. Therefore, UNHCR “strongly requested” that the applicant’s forced return to the Russian Federation should be “prevented” until a final decision is taken by UNHCR in respect of his application for a refugee status.
By a decision of 24 January 2013, the Sabayil District Court rejected the applicant’s appeal against the temporary extradition order of 26 November 2012. The court noted that there were no grounds under the domestic law or the relevant international instruments precluding the applicant’s temporary extradition to Russia, that his request for a refugee status had been rejected by UNHCR and that therefore currently he did not enjoy a refugee status, that the Russian authorities’ extradition request provided necessary assurances, and that no evidence of an alleged risk of torture or ill-treatment had been presented to the court.
On 28 January 2013 the applicant lodged an appeal against this decision.
On 1 February 2013 the Baku Court of Appeal rejected the appeal, finding that the Sabayil District Court had reached a correct decision. The Baku Court of Appeal’s decision was silent as to the pending examination by UNHCR of the applicant’s asylum request and as to the applicant’s allegations concerning the risk of torture or ill-treatment in the receiving country.
In accordance with the procedural rules concerning appeals against prosecution authorities’ decisions concerning extradition, no further appeal lay against the Baku Court of Appeal’s decision.
According to the Government, on 1 March 2013 the applicant was again interviewed by UNHCR in Prison No. 11. His appeal with UNHCR is still pending a final decision.
COMPLAINTS
1. Relying on Articles 2 and 13 of the Convention, the applicant complains that, if he is extradited to Russia, there is a serious risk that he would be killed or tortured or otherwise ill-treated by the Russian law-enforcement authorities, and that no effective remedies were available to him in Azerbaijan in respect of his complaints concerning those risks.
2. Relying on Article 1 of Protocol no. 7 to the Convention, the applicant complains that the domestic procedural rules concerning appeals against an extradition order did not provide for sufficient procedural safeguards.
QUESTIONS TO THE PARTIES
1. In the light of the applicant’s claims and the documents which have been submitted, would he face a risk of being subjected to treatment contrary to Articles 2 and 3 of the Convention if the extradition order were enforced?
2. Before deciding on his extradition, did the authorities consider the applicant’s claim that he would be exposed to a risk of being subjected to inhuman treatment if returned to the Russian Federation? Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?
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