Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, SLOVAKIA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.24-14062 (E) 180924 190924
Human Rights Committee
Views adopted by the Committee under article 5 (4)
of the Optional Protocol, concerning
communication No. 3193/2018*, **
Communication submitted by:
Aslan Achmetovič Jandiev (represented by
counsel, Lukáš Opett)
Alleged victim:
The author
State party:
Slovakia
Date of communication:
15 June 2018 (initial submission)
Document references:
Decision taken pursuant to rules 92 and 94 of the
Committee’s rules of procedure, transmitted to
the State party on 21 June 2018 (not issued in
document form)
Date of adoption of Views:
16 July 2024
Subject matter:
Extradition to the Russian Federation
(non-refoulement)
Procedural issues:
Admissibility – substantiation of claims;
res judicata
Substantive issue:
Freedom from torture or cruel, inhuman or
degrading treatment or punishment
Article of the Covenant:
7
Articles of the Optional Protocol:
2 and 5 (2)
1.1
The author of the communication is Aslan Achmetovič Jandiev, a national of the
Russian Federation born on 23 October 1978. The author claims that his rights under article 7
of the Covenant have been and would be violated again if he were extradited to the Russian
Federation, where he fears he is at risk of torture. The Optional Protocol entered into force
for the State party on 28 August 1993. The author is represented by counsel.
1.2
On 21 June 2018, the Committee, acting through its Special Rapporteurs on new
communications and interim measures, requested the State party to refrain from extraditing
the author to his country of origin while his communication was being considered. On 13 July
* Adopted by the Committee at its 141st session (1–23 July 2024).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly
Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah
Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
United Nations
CCPR/C/141/D/3193/2018
International Covenant on
Civil and Political Rights
Distr.: General
19 September 2024
Original: English
CCPR/C/141/D/3193/2018
2
GE.24-14062
2018,1 the Committee reiterated its request for interim measures. On 17 July 2018, the author
was extradited to the Russian Federation, despite the request for interim measures made by
the Committee to the State party. On 18 July 2018, the State party submitted a request to
consider the admissibility of the communication separately from the merits. On 24 October
2022, the Committee, acting through its Special Rapporteurs on new communications and
interim measures, decided to examine the admissibility of the communication together with
the merits.
Facts as submitted by the author
2.1
The author is an agricultural worker, a national of the Russian Federation of Ingush
ethnicity and a Muslim, born on 23 October 1978 in Kostroma Province, Russian Federation.
After graduating from school, he began working in construction, in 1998, and then in
agriculture in 2001. From late 2005 onwards, the author was detained and interrogated
multiple times and tortured by the police of the Russian Federation, in the context of its
anti-terrorism operation in Ingushetia over the period from 2004 to 2007. In May 2006, the
author was detained by the police in the Russian Federation and transported to the Municipal
Police Department for Domestic Matters. He was beaten by police officers to force him to
confess to criminal activities. He was hospitalized from 12 May to 14 June 2006, due to
concussion as a result of torture.2
2.2
Subsequently, the author was accused of being a member of an organized crime group
deemed to have committed several criminal offences between 2 February and 25 June 2006.3
The author denied these accusations, stating that they were clearly connected with the
political situation in Ingushetia,4 his ethnicity and his religious affiliation. The accusations
against him were based on testimonies by other persons who later retracted their statements
and indicated that they had been forced to testify by the Russian authorities.
2.3
In September 2006, the author went into hiding from the State authorities of the
Russian Federation with his relatives and acquaintances. In March 2008, he went to the city
of Kislovodsk and then left the Russian Federation, first for Ukraine and subsequently
Slovakia, Czechia and, ultimately, Germany, where he arrived in April 2008. However, he
was returned to Czechia and then to Slovakia, where he applied for asylum on 13 May 2008
under a different identity out of fear for his life and of extradition, given the influence of the
Government of the Russian Federation within Eastern Europe. The asylum claim was rejected
on 18 November 2010. On an unspecified date in 2010, the author left Slovakia for Belgium,
where he unsuccessfully applied for asylum in November 2010, and was ultimately returned
to Slovakia on 9 December 2010.
2.4
On 9 December 2010, the author again applied for asylum in Slovakia, this time under
his real name. The proceedings have been pending for almost eight years and have been
continually prolonged. The Migration Office rejected his asylum application five times, with
all the decisions subsequently quashed by the domestic courts.
2.5
On 2 February 2011, the Office of the Prosecutor General of the Russian Federation
requested the Ministry of Justice of Slovakia to extradite the author to be tried on charges
1 In response to the updated information provided by the author on 12 July 2018 about the imminent
risk of his extradition.
2 The hospital release form (counsel’s translation) states that: “He was injured as a result of a beating.
He lost [consciousness] for 10 minutes. Brought in by the ambulance. Recorded vomiting once and
sickness, systematic dizziness. Damages to the memory of the events which preceded the injury and
of the time of injury… They discovered during the visual examination numerous scratches on the
upper and lower limbs with significant bruise, contusion and flesh wounds of the soft tissues on the
chest part of the backbone and in the projection of the shoulder girdle.”
3 The author underlines that this period also includes the time when he was hospitalized.
4 The period between 2004 and 2007 was one in which so-called Chechen and Islamic rebels were
particularly active, with many terrorist attacks carried out not only in Chechnya but also in Ingushetia
and North Ossetia-Alania. At the same time, there was rivalry and land disputes between these
territories. These activities triggered an anti-terrorist operation by Government of the Russian
Federation, which was accompanied by considerable violations of human rights, torture and forced
confessions, especially from Muslim citizens of Ingushetia, North Ossetia–Alania and Chechnya, in
an attempt to suppress the terrorist organizations operating in those territories.
CCPR/C/141/D/3193/2018
GE.24-14062
3
related to acts of terrorism that he had allegedly committed with other individuals in North
Ossetia–Alania. The Office of the Prosecutor General of the Russian Federation provided the
State party with the following diplomatic guarantees: that court proceedings would be held
in accordance with the standards of international law; that the author would be prosecuted
only for the offences for which he would be extradited and that he would not be extradited to
another State without the consent of the State party; that the author would not be subjected
to torture or inhuman treatment; and that he would be able to leave the Russian Federation
once he completed his sentence. At the State party’s request, the possibility for the extraditing
State to monitor the author after his extradition to the Russian Federation, if the State party
so wishes, was included as a guarantee.
2.6
On 9 February 2016, the Supreme Court of Slovakia quashed a previous decision of
5 October 2015 rendered by the Regional Court in Košice, quashed the decision of the
Migration Office and returned the matter to the Migration Office for renewed consideration.
The Supreme Court did not agree that the author’s story should be characterized as untruthful.
It contested an expert opinion of 18 October 2015, according to which the concussion that
the author had suffered in May 2006 could not have resulted in the current memory blackouts
suffered by the author. The court considered that that conclusion – based only on a discussion
with the person under observation and one medical report from 2006, which had diagnosed
a brain injury – without any other expert examination, such as through scanning methods,
could not be considered sufficiently substantiated. Acknowledging that information from the
area of the author’s country of origin had confirmed the existence of practices leading to
forced confessions, the Supreme Court considered that the statement by the Migration Office
that the author’s story was not truthful and that the author was unreliable was premature and
unconvincing in that context.
2.7
The Supreme Court considered that the practices of the police in the Russian
Federation, as described by the author, could be considered, without any doubt, a serious
violation of article 3 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights). It considered therefore that the
conclusion of the Migration Office that the author did not fulfil the legal requirements for the
granting of asylum, without the author being able to provide further arguments to support his
case, was unreasonable and premature. The Supreme Court concluded that the fact that the
author had been tortured in the past did not mean that the risk of similar treatment had ceased
to exist. It considered that the probability of the author being further exposed to torture was
increased by the fact that he had unsuccessfully sought international protection. According
to the Supreme Court, the threat was sufficiently individualized and the author was in danger,
given the specific circumstances of his situation. The Supreme Court noted that the torture
of the author in the Russian Federation had been sufficiently proven and that the author faced
a real threat of being tortured again if he were to be extradited.
2.8
The Supreme Court contested the effectiveness of the guarantees offered by the
Government of the Russian Federation, emphasizing that the criminal proceedings against
the author would not take place in Moscow but in North Ossetia–Alania or Ingushetia.
Therefore, it was necessary to evaluate the exact situation in those regions, and potential
guarantees should be provided from those regions and their authorities, which had not
happened. After evaluating reports from international non-governmental organizations, the
Supreme Court concluded that the guarantees did not reduce or eliminate the reasonable fears
of a reoccurrence of the same practices if the plaintiff returned to his country of origin for the
purposes of criminal prosecution.
2.9
Despite the decision by the Supreme Court, the Migration Office again rejected the
author’s asylum application. On 14 February 2017, the decision of the Migration Office not
to grant asylum was again cancelled by the Regional Court in Košice, as the decision was not
aligned with the legal opinion issued by the Supreme Court. The Regional Court also
questioned the effectiveness of the guarantees offered by the Government of the Russian
Federation and ordered their evaluation in relation to recent developments in the Russian
Federation, in particular the amendment of its constitutional law enabling the authorities not
to comply with decisions of the European Court of Human Rights. At that time, the Migration
Office again issued a notification of prolongation of the asylum proceedings, in an attempt
to ensure that the author was extradited before the decision on asylum was made.
CCPR/C/141/D/3193/2018
4
GE.24-14062
2.10
On 24 March 2016, the European Court of Human Rights declared inadmissible as
manifestly unfounded the author’s application in relation to article 3 of the European
Convention on Human Rights.5 The Court concluded that there were no substantial grounds
for believing that the author would be exposed to a real risk of ill-treatment if extradited.6 As
to the diplomatic guarantees offered by the Government of the Russian Federation, the Court
noted that they were similar to guarantees offered in previous cases, which had been
respected by the Government of the Russian Federation. It therefore found no reason to doubt
them in the author’s case.
2.11
On 2 May 2018, the Constitutional Court, in its last resort, confirmed a decision by
the Minister of Justice dated 7 February 2018, which granted permission to extradite the
author, basing the decision on the above-mentioned decision of the European Court of Human
Rights. However, according to the author, the Constitutional Court did not take into account
a substantial change in the factual circumstances after the European Court of Human Rights
rendered its decision, to an extent that refutes the key assumptions on which the decision of
the European Court of Human Rights was based.
2.12
The author had been in detention for almost seven years, since 21 January 2011, at the
time of the initial submission.
2.13
The author submits that, on 28 May 2018, he applied to the European Court of Human
Rights for a renewal of the proceedings and requested interim measures, following the
decision of the Constitutional Court of 2 May 2018. His request for interim measures was
rejected by the European Court of Human Rights on 30 May 2018, as the European
Convention on Human Rights does not allow for proceedings to be renewed. The author
therefore withdrew his application to the European Court of Human Rights on 5 June 2018.
There are no other pending proceedings regarding the matter before an international authority.
Complaint
3.1
The author invokes article 7 of the Covenant and considers that his right not to be
subjected to torture has been violated, as the State party not only approved his extradition to
a country where he is at risk of being subjected to torture but did so while the domestic
authorities were still evaluating his application for international protection (asylum or
subsidiary protection).
3.2
As to the inadmissibility decision rendered by the European Court of Human Rights
on 24 March 2016, the author submits that there has been a substantial change in the factual
circumstances since that decision was handed down, which entitles him to a new evaluation
of the risk of torture that he would face if he were to be extradited to the Russian Federation.
The decision of 9 February 2016 of the Supreme Court and that of 14 February 2017 of the
Regional Court in Košice were not taken into account by the European Court of Human
Rights. On the basis of these two decisions, the author identifies a strong possibility of being
granted asylum or subsidiary protection.
3.3
The author draws the Committee’s attention to reports by non-governmental
organizations documenting numerous cases of people in a similar situation who were tortured
by the authorities in the Russian Federation and from whom confessions were forcibly
extracted. At the same time, the judicial system in the Russian Federation is not a sufficient
guarantee for preventing torture or for removing its consequences.
3.4
As to the diplomatic guarantees provided by the Government of the Russian
Federation, the author contests their trustworthiness and submits that, in the past, the
Government of the Russian Federation has repeatedly violated such guarantees. He also
submits that the guarantees were provided by the Office of the Prosecutor General of the
5 European Court of Human Rights, A.Y. v. Slovakia, Application No. 37146/12, Decision, 24 March
2016.
6 In that context, the author argues that the European Court of Human Rights based its decision on the
findings of the Migration Office in regard to the author’s asylum application, which were
subsequently annulled by the Supreme Court in its decision of 9 February 2016. The author adds that
the assumptions contained in the decision of the European Court of Human Rights were refuted by the
Supreme Court in its decision.
CCPR/C/141/D/3193/2018
GE.24-14062
5
Russian Federation, which was not in charge of the investigation or the criminal prosecution
in the author’s case. The Russian Federation is a federative State, and the author’s
investigation is led by the authorities of Ingushetia, which are the source of the risk of torture
and which have not provided any diplomatic assurances.
3.5
The author also emphasizes that the asylum proceedings in his case started on
9 December 2010 and had not been exhausted at the date of submission of the initial
communication to the Committee. The mere length of the asylum proceedings indicates that
his application is not groundless. The Supreme Court, in its decision of 9 February 2016, also
declared that his statements were trustworthy and that he had a right to be protected against
extradition.
3.6
The author points to the ineffective steps by the State party’s authorities concerning
his asylum application. He recalls that the Migration Office issued four decisions not to grant
the author asylum – preceding the decision of the Supreme Court of 9 February 2016 – which
were all cancelled by the courts. Following the decision rendered by the Supreme Court, the
Migration Office again issued a decision not to grant the author asylum, which was then
cancelled, as it did not respect the decision of the Supreme Court. After that decision of the
Supreme Court, and for more than a year, the Migration Office repeatedly postponed the
proceedings without issuing a decision on the merits. Therefore, the author considers that the
Migration Office tried to prevent him from effectively seeking protection in the form of
asylum or subsidiary protection, with the intention of ensuring that he was extradited
following the extradition proceedings and before issuing a final decision on his asylum
application.
State party’s observations on admissibility
4.1
On 18 July 2018, the State party submitted its observations on the admissibility of the
communication, arguing that the communication was inadmissible, given that the same
matter had been examined under another procedure of international investigation or
settlement.
4.2
The State party submits that the author’s case has already been decided on the merits
by the European Court of Human Rights. The communication is thus inadmissible on the
basis of res judicata. The State party requests that the decision of the European Court of
Human Rights be respected. Contradictory outcomes would jeopardize the credibility of the
Court as an international judicial body.
4.3
The State party challenges the author’s claim that the substance of his arguments with
respect to changes in factual circumstances were not adequately considered. The rejections
by the European Court of Human Rights of the author’s requests for interim measures 7
proved that no new factual circumstances had emerged in his case. The State party submits
that, if the European Court of Human Rights had believed that new factual circumstances had
emerged following its decision of 24 March 2016, it would have issued new interim measures,
as it did in several other cases.8 The author’s case has therefore already been considered on
the merits by another procedure of international investigation or settlement.
4.4
The State party submits that it could not accommodate the Committee’s request to
refrain from extraditing the author to the Russian Federation in the light of the findings of
the Constitutional Court,9 the legally non-binding nature of the Committee’s decisions, the
7 On 8 February 2018, the European Court of Human Rights decided not to grant the author’s interim
measures and not to prevent his extradition. On 28 May 2018, the author lodged a new request for
interim measures before the Court to prevent his extradition to the Russian Federation. On 29 May
2018, the European Court of Human Rights decided not to grant the interim measures and not to
prevent the applicant’s extradition.
8 European Court of Human Rights, Chentiev v. Slovakia, Application No. 27145/14; and Ibragimov v.
Slovakia, Application No. 65916/10.
9 On 13 July 2018, the author applied to the Constitutional Court of Slovakia, again claiming that his
fundamental rights had been violated. The Constitutional Court did not suspend the enforceability of
the extradition decision issued by the Minister of Justice on 7 February 2018 before the author’s
actual extradition on 17 July 2018.
CCPR/C/141/D/3193/2018
6
GE.24-14062
risk of releasing the author upon the expiration of the statutory limit for detention and the
risk that the author presented to public safety.
4.5
On 14 August 2018, the State party informed the Committee that, on 7 August 2018,10
the Constitutional Court had rejected the author’s complaint of a violation of his fundamental
rights in the context of his extradition to the Russian Federation, despite the Committee’s
request for interim measures of 21 June 2018.
Author’s comments on the State party’s observations on admissibility
5.1
On 14 September 2018, the author submitted his comments on the State party’s
observations on admissibility, arguing that the communication was admissible and that
article 5 (2) (a) of the Optional Protocol applied only to ongoing proceedings and not to the
present communication, given that the examination of the author’s case by the European
Court of Human Rights had concluded.11
5.2
The author submits that new factual circumstances emerged following the decision of
24 March 2016 of the European Court of Human Rights.12 The non-permissibility of the
extradition of the complainant to the Russian Federation can be derived from this new
evidence. These factual circumstances were not considered by the European Court of Human
Rights or the domestic courts in the State party, 13 nor did it consider whether an
asylum-seeker could be extradited during ongoing asylum proceedings.14 The decision of
24 March 2016 therefore does not render the communication inadmissible. With respect to
the Court’s denials of the interim measures requests of 8 February 2018 and 28 May 2018,
the author emphasizes that such decisions are not on the merits and were reached without
evaluating the facts. Moreover, the Court is not bound by such decisions when evaluating an
application on its substance. Because the author was not provided with preliminary protection
by the Court, he concluded the proceedings, which appeared ineffective, and submitted a
communication to the Committee.
5.3
The author also submits that the State party violated articles 2 (1) to (3), 5 (1) and 5 (2)
of the Covenant and articles 1 and 2 of the Optional Protocol by extraditing him to the Russian
Federation on 17 July 2018.15 The State party did not respect the interim measures requesting
it to refrain from extraditing the author while his communication was under consideration by
the Committee. Moreover, the author is of the opinion that the State party did not contest the
factual argumentation that he set out, nor its legitimacy.
5.4
The author challenges the State party’s contention that the Committee’s decisions,
including interim measures, are not legally binding. It is a fundamental rule of international
law that international treaties are of a legally binding nature.16 Furthermore, article 1 of the
Optional Protocol indicates that States parties have provided the Committee with the
competence to receive individual complaints. States parties have therefore committed
themselves to respecting the Views issued by the Committee and should be obliged to respect
the requests for interim measures. The author argues that otherwise the protection afforded
to an individual on the basis of article 1 would be illusory. Through article 2 of the Optional
Protocol, States parties allow individuals to file complaints with the Committee. This
obligation is violated where the State party, through its failure to comply with the
10 Constitutional Court of Slovakia, Decision No. III ÚS 319/2018-30, 7 August 2018. The
Constitutional Court decided to reject the author’s complaint for lack of competence to hear the case
and also pointed out that the Committee’s decisions are non-binding.
11 All proceedings before international bodies had concluded either by a decision or on the basis of a
request of the applicant.
12 The new circumstances are the decision of the Supreme Court of Slovakia of 9 February 2016 and
other findings from the asylum proceedings.
13 E.g. the decision of the Constitutional Court of Slovakia of 2 May 2018.
14 This question was not even considered in the decision of the European Court of Human Rights.
Therefore, the decision of the European Court of Human Rights in the matter cannot present an
obstacle to the consideration of the present communication.
15 He adds that the domestic remedies in this regard have been exhausted with the decision of 7 August
2018 of the Constitutional Court.
16 Article 26 of the Vienna Convention on the Law of Treaties, 23 May 1969.
CCPR/C/141/D/3193/2018
GE.24-14062
7
Committee’s request for interim measures, prevents an individual from bringing a complaint
before the Committee.
5.5
The author’s reading of the Constitution of Slovakia allows for his case to be
re-examined by the national authorities on the basis of a decision from the Committee.17
Renewal of the proceedings would provide the author with a sense of redress, owing to the
fact that his rights have been violated by the State party due to its failure to comply with the
request for interim measures, whose binding nature should be reasserted by the Committee.
5.6
The author requests the Committee to recommend to the State party to grant him
adequate financial compensation for the damages suffered by the violation of his rights.
State party’s additional observations
6.1
On 12 December 2018 and 1 March 2019, the State party submitted that
representatives of the Embassy of Slovakia to the Russian Federation in Moscow had
conducted a visit to the Federal State Institution for Detention in Vladikavkaz, where the
author was being held in custody. The visit was aimed at monitoring the observance of the
rights guaranteed by the author’s home country.
6.2
The consent by the Ministry of Justice of the State party to extradite the author on
charges of organized crime and complicity in a terrorist attack hinged on the diplomatic
assurances provided by the Russian Federation.
6.3
During the monitoring visit conducted on 21 February 2019, the author was
interviewed in private. He appeared to be in good physical condition and did not complain
about unsatisfactory conditions of detention or about having been subjected to torture or
abuse, nor did he claimed to have been injured or beaten. The author stated that he had been
granted all rights. In his view, the guards were “normal”. He was granted access to medical
care and could be visited by relatives, whom he could also contact by videoconference. The
detention facility was modern, with a capacity of 35 inmates.
6.4
The visit indicated that the guarantees given by the Office of the Prosecutor General
of the Russian Federation had been upheld and were likely to be further respected. The State
party promised to continue its monitoring.
Author’s comments on the State party’s additional observations
7.1
In a letter to the Committee of 7 May 2019, the author’s counsel expressed doubts
about the conditions of detention of the author, given that, following the author’s extradition,
he had had no direct information from him about the place and conditions of detention, and
the counsel’s inquiries had remained unanswered.18
7.2
However, the author’s counsel argues that updated information on the author’s
conditions of detention would have no bearing on the ongoing proceedings before the
Committee, because the State party violated the author’s rights by extraditing him to the
Russian Federation, despite the serious risk that he would be subjected to torture and the fact
that his asylum proceedings were still pending and in disregard of the Committee’s request
for interim measures to stay his extradition while his complaint was being examined by the
Committee. It is essential to consider what the risk of torture was at the moment of the
author’s extradition and what the State party did to properly examine this risk.
7.3
By submissions of 30 June and 19 July 2019, the author’s counsel reiterated that he
had not heard from the author directly by mail and indicated that he doubted the State party’s
assessment of the author’s conditions of detention.
17 Article 133 of the Constitution of Slovakia.
18 On 17 May 2019, the counsel sent an inquiry to the author about his whereabouts, conditions of
detention and fairness of the criminal proceedings. However, on 15 July 2019, the counsel indicated
to the Committee that the author had not received the counsel’s letter of inquiry.
CCPR/C/141/D/3193/2018
8
GE.24-14062
State party’s observations on the merits
8.1
On 1 March 2023, the State party submitted its observations on the merits. It recalled
the findings of the Constitutional Court of Slovakia taking into account the conclusions of
the European Court of Human Rights on the author’s application. Having considered the
obligation to comply with the statutory regulation regarding the time limits for the author’s
detention, and being aware of the risk that the author has presented to public security, the
State party had no possibility to accommodate the Committee’s request for interim measures
to refrain from extraditing the author to the Russian Federation.
8.2
Having accepted the diplomatic guarantees by the Russian Federation, the State party
has also taken proactive measures to ensure that the author’s rights are respected, in
accordance with international human rights law.
8.3
The State party reiterated its request that the Committee declare the present
communication inadmissible as res judicata, in view of the fact that the same claims have
already been decided on the merits by the European Court of Human Rights, which declared
the application in relation to articles 3, 13 and 6 of the European Convention on Human
Rights inadmissible on 24 March 2016, bringing the application of the interim measures to
an end and thereby removing the obstacle preventing the applicant’s extradition.19
8.4
The State party recalled its previous arguments with regard to the extradition decision
by the Minister of Justice, the decision of the Constitutional Court of Slovakia of 2 May 2018,
the applications to the European Court of Human Rights20 and the monitoring visit conducted
at the facility where the author was placed.
8.5
The State party requests the Committee to respect the final decisions of the European
Court of Human Rights. If decided otherwise, the conclusions of the Committee in the present
case would not be in compliance with the final decisions of the international judicial body.
Author’s comments on the State party’s observations on the merits
9.1
On 11 October 2023, the author’s counsel submitted comments on the State party’s
observations on the merits, dated 1 March 2023.
9.2
Although the author’s counsel accepted the State party’s account of the facts, it
considered their observations to be incomplete. With regard to the interim measures request
issued by the European Court of Human Rights in relation to A.Y. v. Slovakia, in 2012, it
constituted an obstacle to the extradition of the applicant. The three arguments related to a
perceived lack of credibility and consistency, for which the Court considered the author’s
application inadmissible in its decision of 24 March 2016, and were all refuted by later
decisions of the national authorities in the asylum procedure, including the Supreme Court
of Slovakia and the Regional Court in Košice.
9.3
The author’s counsel reiterated his main claim that the author was extradited on
17 July 2018, in violation of the Committee’s request for interim measures of 21 June 2018.
9.4
With regard to the State party’s information about the only visit to monitor the
conditions of detention of the author, which occurred some 3.5 years ago, in line with the
diplomatic guarantees, the information has not been updated and it could have changed since
that time in a substantial way, due to the risk that the author faces of torture or other
ill-treatment. The author’s counsel questions the effectiveness of such means of supervision,
given that the approval of a judge is required for each monitoring visit, which excludes the
moment of surprise. The counsel also questions the date when the actual visit took place,
19 The European Court of Human Rights concluded that it had not been established in the author’s case
that there were substantial grounds for believing that he would be exposed to a real risk of
ill-treatment in the event of his extradition to the Russian Federation. The Court pointed out that the
guarantees provided by the Russian Federation were similar to those provided in other cases involving
Slovakia that had been accepted by the Court (see Chentiev and Ibragimov v. Slovakia, Applications
No. 51946/08 and No. 21022/08).
20 In its decision of 26 May 2020, the Constitutional Court again dismissed the complaint of the author,
in which he had reiterated the claims of a violation of his fundamental rights, due to the length of the
extradition detention.
CCPR/C/141/D/3193/2018
GE.24-14062
9
given that the Ministry of Justice and the Ministry of Foreign and European Affairs both
indicated that it had taken place already on 21 February 2019. However, the State party did
not mention the date of such a monitoring visit in its observations of 12 December 2018, and
there is also a lack of certainty about the number of visits undertaken in 2019 and whether
there have been any other visits since.
9.5
Through a status enquiry, the Slovak post office confirmed that the counsel’s letter
was delivered to the author on 29 May 2019, however, it is not certain that the signature on
the note of receipt belongs to the author. The counsel is not able to verify the relevance of
the information about the status of the author provided by the State party, given that the
author has not subsequently contacted the counsel’s law firm. The author’s counsel is
therefore not able to confirm or deny the State party’s information.
9.6
The author’s counsel concluded by objecting to the State party’s reference to the
decisions of the Constitutional Court and the European Court of Human Rights, its arguments
about the limitations on the duration of detention of the author and its assertion that the danger
posed by the author to public security was the reason that it was not possible to comply with
the Committee’s interim measures request to halt the author’s extradition. Such interpretation
is in contradiction to the State party’s Constitution and its obligations under the Covenant
(arts. 2 (3) (a) and (c)) to prevent irreparable harm. The counsel rebuts the State party’s
assertion that the decision of inadmissibility of the European Court of Human Rights
represents res judicata preventing the proceedings before the Committee, given that the
European Convention on Human Rights and the Covenant are two separate legal instruments,
and that the European Court did not rule on the claims raised by the author under article 7 of
the Covenant.
Additional submissions
From the author
10.1
On 11 January 2024, the author’s counsel submitted further comments, indicating,
inter alia, that he had had no updates on the author’s conditions of detention since 18 July
2020, when the State party had reported on its monitoring visit. Even from that report, it was
not evident when the latest monitoring visit of the author had been undertaken, who was
present, what information the author provided and whether there were currently any checks
on the diplomatic guarantees at all.
10.2
According to the information from the Embassy of Slovakia in Moscow of
17 November 2019, the author had been transported to the Federal Penitentiary Facility in
the city of Dimitrovgrad, Ulyanovsk Province. Although the consul of the Embassy indicated
that the Embassy was enquiring about the possibility of carrying out a subsequent visit to the
author, no corresponding information has been provided to the author’s counsel.
From the State party
11.
On 20 May 2024, the State party submitted further observations, informing the
Committee that the author was in prison in Vladikavkaz on 21 July 2019 when he had been
visited by the Slovak diplomatic staff and he was in good condition, that the author could not
be visited between 2020 and 2022 by the Slovak authorities, owing to the restrictions related
to the coronavirus disease (COVID-19) pandemic, that the Slovak authorities were informed
in October 2020 by the Russian authorities that the author was being held in the Federal
Penitentiary Facility in Dimitrovgrad, Ulyanovsk Region, and that, in October 2023, the
author’s counsel requested the Slovak authorities to carry out an additional visit to the author,
the request was transmitted to the Russian authorities on 19 January 2024 and was answered
in the affirmative in February 2024, however, the exact date of a visit had not been fixed and
was being negotiated. The State party also reiterated its arguments on the inadmissibility of
the present communication on the grounds of res judicata.
CCPR/C/141/D/3193/2018
10
GE.24-14062
Issues and proceedings before the Committee
State party’s failure to respect the Committee’s request for interim measures pursuant to
rule 94 of the Committee’s rules of procedure and article 1 of the Optional Protocol
12.1
In a note verbale dated 21 June 2018, the Committee requested the State party to
refrain from extraditing the author to the Russian Federation. It reiterated that request in a
note verbale dated 13 July 2018. The Committee notes that the State party failed to respect
the Committee’s request for interim measures by extraditing the author on 17 July 2018,
before the Committee had concluded its consideration of the present communication.
12.2
The Committee recalls that the adoption of interim measures pursuant to rule 94 of its
rules of procedure, in accordance with article 1 of the Optional Protocol, is vital to the role
entrusted to the Committee under that article. Failure to respect the interim measures
requested by the Committee with a view to preventing irreparable harm undermines the
protection of the rights enshrined in the Covenant.21
12.3
The Committee reiterates that, apart from any violation of the Covenant found against
a State party in a communication, a State party commits serious violations of its obligations
under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee
of a communication alleging a violation of the Covenant or to render examination by the
Committee moot and the expression of its Views concerning the implementation of the
obligations of the State party under the Covenant nugatory and futile.22 Having been notified
of the communication and the request by the Committee for interim measures of protection,
the State party failed in its obligations under article 1 of the Optional Protocol by extraditing
the alleged victim before the Committee had concluded its consideration of the present
communication.23
Consideration of admissibility
13.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
13.2
As regards article 5 (2) (a) of the Optional Protocol, the Committee takes note of the
State party’s objection that the author’s application on this issue was rejected by the European
Court of Human Rights as inadmissible. The State party also argued that the same matter, in
which the interim measures were granted, was considered on the merits and constitutes res
judicata, which should prevent consideration of the present communication. The Committee
takes note of the author’s assertion however that the application to the Court did not concern
the same matter, arguing that the present communication has addressed new circumstances
which arose after 24 March 2016, that article 5 (2) (a) of the Optional Protocol conceives as
obstacle to admissibility another pending international investigation or settlement, not
proceedings that were concluded, and that the author requested interim measures from the
Court on 8 February and 28 May 2018, which were rejected, and the author withdrew his
application to the Court on 5 June 2018 (see para. 2.13 above). The Committee therefore
considers that the same matter is not being examined under another procedure of international
investigation or settlement and that it is therefore not precluded from considering the author’s
claims by the requirements of article 5 (2) (a) of the Optional Protocol.
13.3
The Committee takes note of the author’s statement that he has exhausted all effective
domestic remedies available to him, in the context of both extradition and asylum
proceedings. In the absence of any objection by the State party in that connection, the
21 See, e.g., Saidov v. Tajikistan (CCPR/C/81/D/964/2001), para. 4.4; Tolipkhuzhaev v. Uzbekistan
(CCPR/C/96/D/1280/2004), para. 6.4; Kovaleva et al. v. Belarus (CCPR/C/106/D/2120/2011), para.
9.5; and Rehman v. Hungary (CCPR/C/138/D/2963/2017), para. 7.1.
22 See, e.g., Piandiong v. Philippines (CCPR/C/70/D/869/1999 and CCPR/C/70/D/869/1999/Corr.1),
para. 5.1; Idiev v. Tajikistan (CCPR/C/95/D/1276/2004), para. 7.3; Maksudov et al. v. Kyrgyzstan
(CCPR/C/93/D/1461/2006, 1462/2006, 1476/2006 and 1477/2006), paras. 10.1–10.3; Yuzepchuk v.
Belarus (CCPR/C/112/D/1906/2009), para. 6.2; and Kovaleva et al. v. Belarus, para. 9.4. See also
general comment No. 33 (2008) on the obligations of States parties under the Optional Protocol to the
International Covenant on Civil and Political Rights, paras. 15 and 19.
23 Rehman v. Hungary, para. 7.2.
CCPR/C/141/D/3193/2018
GE.24-14062
11
Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have
been met.
13.4
The Committee considers the author’s claims under article 7, read in conjunction with
article 2 (3), of the Covenant to have been sufficiently substantiated for the purposes of
admissibility, and, in absence of observations from the State party to the contrary, proceeds
to its examination of the merits.
Consideration of the merits
14.1
The Committee has considered the case in the light of all the information submitted
to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
14.2
The Committee takes note of the author’s claims that, by permitting his extradition,
and if extradited to the Russian Federation, he would be at risk of torture, inhuman and
degrading treatment or punishment. He fears such risks on account of his perceived
membership of an organized crime group, in the context of which investigation he was
detained and exposed to violence to force a confession, in connection with the political
situation in Ingushetia, his ethnicity and religious affiliation and the nature of charges brought
against him, which are connected to terrorism-related crimes. The Committee also takes note
of the author’s account of having endured previous beatings and torture by the federal
security forces between 2005 and 2006. The Committee further takes note of the author’s
references to the country information concerning the torture of terrorist suspects in the
Russian Federation. The Committee notes that the author has raised these claims before the
authorities of the State party in the context of the asylum proceedings.
14.3
The Committee takes notes of the author’s allegations that the Migration Office of
Slovakia and the courts failed to properly assess his account of previous detention, torture and
forced confessions by the federal security service of the Russian Federation while considering his
asylum request and did not take into consideration the country information concerning the
treatment of terrorism suspects in the Russian Federation. The Committee also takes note of the
author’s claim that the Migration Office repeatedly failed to consider the opinion of the Supreme
Court or regional courts indicating that, given that the author had previously been exposed to
torture at the hands of the federal authorities and the authorities in Ingushetia, the risk of torture
for the author, if extradited, were foreseeable, real and personal, which led to five decisions not to
grant the author asylum, and that the asylum proceedings were still pending at the time when the
author was extradited, without a suspensive effect on his extradition.
14.4
The Committee observes, from the documents provided by the author, that the domestic
authorities, in assessing his asylum application, focused on the fact that the author had been
charged with terrorism-related crimes, that he left the Russian Federation in March 2008 with
possibly forged documents, that he used a false identity in the initial asylum proceedings in the
State party, that his statements were not considered credible and that he tried to obtain
international protection in other European countries before returning to the State party in 2010,
where he again applied for asylum. The Committee notes the reliance of the domestic
authorities on the guarantees provided by the Office of the Prosecutor General of the Russian
Federation in the extradition request of 2 February 2011 (see para. 2.5 above), namely, that the
author would enjoy fair trial safeguards and would not be subjected to persecution or to torture,
which the State party managed to monitor only on one occasion, on 21 July 2019, as reported
to the Slovak authorities and conveyed to the Committee on 20 May 2024 (see para. 11 above),
and that the author’s counsel has not received any further updates on the author’s situation since
then.
14.5
The Committee notes that the available information does not allow it to establish
whether the State party’s asylum authorities carried out a personal interview with the author,
who was considered a risk to public security and was put in extradition detention. The
authorities also did not consider the author’s claims from the point of view of the principle of
non-refoulement, to ensure that he would not be exposed to treatment contrary to article 7 of
the Covenant, even if he did not meet the requirements in order to obtain a status of refugee or
subsidiary or temporary protection in accordance with the State party’s legislation, nor was
there sufficient evaluation in the decisions of the domestic authorities and courts of previous
the experiences of the author in North Ossetia-Alania, i.e. why the author’s allegations were
CCPR/C/141/D/3193/2018
12
GE.24-14062
repeatedly questioned and perceived as not credible, why the Supreme Court’s legal opinion in
that regard was not respected by the subsidiary asylum authorities and why the country
information related to prevalence of persecution and torture in the context of anti-terrorism
operations within the Russian Federation was ignored by those authorities.
14.6
In the light of the foregoing, the Committee considers that the author’s claims were
sufficiently substantiated and finds that the State party has failed to duly assess the author’s
claims concerning possible risk of treatment contrary to article 7 of the Covenant in case of
extradition, in particular as the asylum proceedings were not terminated when the author was
extradited. The Committee is therefore of the opinion that the State party violated its procedural
obligations under article 7 of the Covenant, by failing to duly assess the personal circumstances
of the author, and under article 1 of the Optional Protocol, due to the State party’s disregard of
the Committee’s request for interim measures to stay his extradition while his case was under
consideration by the Committee. The stated violation of article 7 has been compounded by
relying on diplomatic guarantees that cannot be considered as reliable and verifiable when not
regularly monitored.
15.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose a violation by the State party of the author’s rights under article 7,
read in conjunction with article 2 (3), of the Covenant and of article 1 of the Optional Protocol.
16.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to
provide the author with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State party is obligated
to take appropriate steps to verify the author’s current status and continue to regularly monitor
the author’s condition, in cooperation with the authorities of the Russian Federation, after the
extradition and subsequent to any conviction and sentence, and to provide the author with
adequate compensation for the violation of his rights. The State party is also under an obligation
to take all steps necessary to prevent similar violations from recurring in the future.
17.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has been a violation of
the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to
ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in
the Covenant and to provide an effective remedy when it has been determined that a violation has
occurred, the Committee wishes to receive from the State party, within 180 days, information
about the measures taken to give effect to the present Views. The State party is also requested to
publish the present Views and to have them widely disseminated in the official language of the
State party.