A.A. v. Bosnia and Herzegovina

The author of the communication is A.A., a national of the Russian Federation born in 1994, who is of Chechen origin. At the time of submitting the present communication, the author was facing extradition to the Russian Federation in view of the criminal charges brought against him in his country of origin. He claims that, in the event of his extradition, the State party would violate his rights under articles 6 and 7 of the Covenant. The Optional Protocol entered into force for the State party on 1 June 1995. The author is represented by counsel.

On 17 October 2018, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party not to extradite the author to the Russian Federation pending consideration of his communication. On 26 October 2018, the author’s counsel informed the Committee that the author had been extradited to the Russian Federation on 24 October 2018.³

3. According to the information provided by the State party in its observations of 21 August 2019, the author was extradited on 25 October 2018 (see para. 4.4). ↩

The author is a Sunni Muslim of Chechen origin. He submits that, in 2013, he left his place of residence in Chechnya, the Russian Federation, due to alleged persecution and threats received from Chechen authorities, who perceived him as a potential terrorist because of his religion and appearance (specifically, the author refers to his having a beard and wearing short trousers). The author explains that the majority of Sunni Muslims of Chechen origin are fighting for recognition of a genocide having been carried out in Chechnya, which is denied by the Government of the Russian Federation. In that regard, anyone raising the issue of genocide or having a beard and wearing short trousers risks being perceived as a terrorist. Since Chechen authorities perceived him as a potential terrorist, his house was searched by the police on several occasions;⁴ in 2012, his car was stopped and searched by the authorities, who secretly planted drugs in his vehicle;⁵ and he received threats that he could be arrested at any moment.⁶ Shortly after having received those threats and fearing for his life, he decided to flee Chechnya. He went to Sochi, where he worked on a construction site for the Olympic Games. Several months later, he left for Türkiye, where he worked as a computer programmer in a private company in Istanbul. Between 2013 and 2018, he lived in Türkiye, working in the same company.

4. The author does not provide further details regarding the alleged searches of his place of residence. ↩
5. The author submits that he identified the drugs planted in his car in time and threw them away. ↩
6. The author does not provide further details in his application before the Committee regarding the alleged threats. ↩

On 10 June 2015, a criminal case was opened against the author and a number of other individuals under article 208 (2) of the Criminal Code of the Russian Federation for participation in an armed formation on the territory of a foreign State with an aim contrary to the interests of the Russian Federation. In particular, it was suspected that, between 2013 and 2015, the author and other individuals, with the aim of participating in the construction and creation of a new caliphate, had travelled to the Syrian Arab Republic, where they had joined an illegal armed formation (Da’esh) and actively participated in combat operations on the territory of that country.⁷ On 16 February 2016, formal charges were brought against him. On 10 April 2016, the Sunzhensky District Department of the Ministry of Internal Affairs in Chechnya ordered the author’s placement on the international wanted list. On 21 April 2016, the Achkhoy-Martanovsky District Court of Chechnya ordered his placement in remand detention.

7. According to the documents submitted in substantiation of the extradition request, the author’s brother – A.M.R. who was questioned as a witness in the criminal case – testified that, in October 2013, he and the author had travelled to Sochi for work. On 18 November 2013, the author disappeared and did not answer telephone calls. About a week later, that is at the end of November 2013, the author contacted A.M.R. and explained that he had left for Türkiye. A.M.R. travelled to Istanbul but was unable to find the author. He therefore concluded that the latter had joined an illegal armed group in the Syrian Arab Republic. Once that information was confirmed, as a result of the operational and search activities conducted by the competent law enforcement agencies, criminal proceedings were instituted against the author and he was charged under article 208 (2) of the Criminal Code of the Russian Federation. ↩

On 21 March 2018, the author travelled from Türkiye to Bosnia and Herzegovina to regularize his residence and work situation in Türkiye.⁸ Upon arrival at Sarajevo International Airport, on the same date, he was arrested on the basis of the Interpol Moscow Red Notice of 16 August 2016 and the Interpol Sarajevo Red Notice of 21 March 2018 due to criminal charges pending against him in the Russian Federation. On 22 March 2018, the Court of Bosnia and Herzegovina ordered the author’s placement in provisional detention, which was subsequently extended to 29 April 2018. On 27 April 2018, the Court ordered the author’s placement in extradition detention for a period of six months.

8. According to the author, in order to obtain a work and residence permit in Türkiye, he needed to receive a stamp in his passport certifying his entry into Türkiye. Therefore, he bought a plane ticket to Bosnia and Herzegovina and planned to return to Türkiye on the same day. ↩

On 19 April 2018, the Office of the Prosecutor General of the Russian Federation requested the author’s extradition in view of the criminal charges pending against him. The request contained assurances to the effect that the extradition did not pursue the purpose of persecuting the author for political reasons, due to race, religion, nationality or political opinion. It was stated that, in accordance with international law, the author would be provided with every opportunity to defend himself, including the assistance of counsel; he would not be subjected to torture or other cruel, inhuman or degrading treatment or punishment; if extradited, he would be held in a penitentiary facility, in compliance with the standards set out in the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and the revised European Prison Rules of 11 January 2006; and representatives of the Embassy of Bosnia and Herzegovina in the Russian Federation would be able to visit him for the purpose of monitoring compliance with the guarantees contained in the extradition request.

According to the author, upon his apprehension, he intended to apply immediately for asylum; however, that opportunity was not provided to him until 4 July 2018.⁹ On 16 July 2018,¹⁰ he lodged an asylum request, which was registered on 1 August 2018. In substantiation of his claim, the author submitted that he had left his country of origin due to persecution by the authorities in Chechnya, who threatened him on two occasions, tried to plant drugs on him and came to his place of residence searching for him. He argued that, by being a Chechen, he was exposed to persecution by the authorities in his country of origin due to the war and genocide against Chechens.¹¹ On 7 August 2018, the author was interviewed in the framework of the asylum proceedings. At the interview, he indicated a fear of persecution in his country of origin on the grounds of his ethnicity and religion, claiming that the authorities had committed genocide against Chechens. He also provided details in relation to the alleged threats received from the authorities, indicating in that respect that an unknown man once threatened to arrest him while he was standing alone at night in the courtyard of his house.¹² The author specified that he had received threats shortly after having left Chechnya. The author alleged the absence of any basis for his criminal prosecution, claiming that he had not committed the crime with which he had been charged and that his right to a fair trial would not be respected in the event of his extradition.

9. The author does not explain what prevented him from submitting his asylum application immediately upon his apprehension. According to the State party, the author expressed his intention to apply for asylum on 4 June 2018 (see para. 4.3). ↩
10. The date as specified in the author’s application submitted before the Committee. ↩
11. Information, as specified in the asylum-seeker registration form, dated 1 August 2018. No further details concerning the grounds for claiming asylum transpire from the document. ↩
12. According to the asylum interview records, the author provided the following account, describing details of the alleged threats: “It happened at night. I was standing alone in the yard [of my house]. A car arrived and stood for a long time, no one came out. After a while, a man came out and asked why I was standing there. I replied that I was standing in my yard and went out to get some air. The man asked: ‘What if I now go to your house and ask if you really live there?’ I replied calmly that it would not be a problem for me if he asked my father about that. The man told me to be careful, otherwise it would be a pleasure for them to arrest me.” ↩

On 2 July 2018, the Court of Bosnia and Herzegovina examined the extradition request of 19 April 2018 and concluded that the legal requirements for the author’s extradition had been fulfilled. In relation to the author’s asylum request, the Court found that the author had expressed his intention to apply for asylum on 4 June 2018,¹³ which was after the Russian Federation had issued the extradition request and that, therefore, under national legislation, the asylum request did not constitute an obstacle to the author’s extradition. The Court also found, inter alia, that the criminal offence for which the author was wanted in the requesting State was not political or military in nature, was also criminally punishable in Bosnia and Herzegovina and was not punishable by the death penalty under the law of the requesting State. The Court further found that the documents provided by the requesting State in substantiation of its extradition request contained sufficient evidence to suspect that the author had committed the offence for which he was charged, and that the extradition was not intended to prosecute or punish him because of his race, gender, national or ethnic origin, religious beliefs or political opinion.

13. The date as specified in the translation, provided by the author, of the decision of the Court of Bosnia and Herzegovina of 2 July 2018. ↩

The author appealed against the decision of the court of first instance before the Appellate Division of the Court of Bosnia and Herzegovina. On 23 July 2018, the Appellate Division of the Court upheld the decision of the court of first instance. It found, in particular, that the documents submitted by the requesting State were sufficient to make a determination on the extradition request; the documents were complete and contained a list of evidence confirming a reasonable suspicion that the author had committed the offence. The Appellate Division of the Court further examined the author’s allegations raised on appeal concerning the inhumane conditions of detention in the penitentiary institutions of the requesting State. It rejected the complaint, finding that the arguments provided were not sufficient to draw a general conclusion about the prevailing inhumane conditions in the penitentiary institutions of the requesting State. It found that the author’s allegations to the effect that his life or health would be in danger in the requesting State were not corroborated by sufficient evidence and were unsubstantiated. In arriving at that conclusion, the Appellate Division of the Court took note of the diplomatic assurances provided by the requesting State in its extradition request.

On 8 August 2018, while the author’s asylum application was pending consideration by the competent asylum authority, the Ministry of Justice of Bosnia and Herzegovina granted the extradition request.

On 16 August 2018, the Ministry of Security of Bosnia and Herzegovina examined whether the author’s asylum application complied with requirements for granting refugee status and rejected the application as unfounded. The Ministry of Security found that, although human rights reports concerning the Russian Federation contained information on human rights violations by law enforcement officials, there was no evidence of systematic persecution of Chechens. Therefore, the risk assessment in the asylum context should be made in the light of the specific circumstances of the individual case. The Ministry of Security examined the author’s statements, supporting documents and country-specific information and arrived at the conclusion that there was no real risk for the author to be subjected to persecution or disproportionate or discriminatory punishment in the event of his return. The Ministry of Security also found that the author’s argument regarding the absence of grounds for his criminal prosecution lacked credibility and that he had hidden facts to make his asylum application credible.

The author submits that he did not challenge the decision of the Ministry of Security of 16 August 2018 in relation to his asylum request before the competent domestic courts, as any remedy would be ineffective due to the absence of suspensive effect. He explains that, according to the Asylum Act, a decision of the asylum authority can be appealed before the Court of Bosnia and Herzegovina and that, as a general rule, the appeal has a suspensive effect. However, in extradition cases, the authority in charge of extradition-related matters – namely, the Ministry of Justice – applies the Act on Legal Assistance in Criminal Matters and proceeds with extradition irrespective of whether all legal remedies have been exhausted in the framework of the asylum procedure. The author also submits that no avenues of appeal against the extradition decision taken by the Ministry of Justice in his case on 8 August 2018 are envisaged under domestic legislation. Thus, there are no domestic remedies available to him to prevent his extradition. The author, therefore, argues that all available domestic remedies have been exhausted in his case.

On 27 August and 7 September 2018, the author requested that the European Court of Human Rights apply interim measures to prevent his extradition. On 28 August and 7 September 2018, the Court rejected his requests. The author submits that he did not pursue his application further, therefore, his complaint has never been considered by the Court on the merits.

The author claims that his extradition to the Russian Federation would put him at risk of torture, inhuman or degrading treatment or death, in violation of articles 6 and 7 of the Covenant. The author argues that the proceedings against him in his country of origin were initiated as part of the policies in the North Caucasus targeting young Sunni Muslim men by initiating criminal proceedings against them for supporting terrorism. The author submits that, due to “corruption and anarchy”, he fears that his right to a fair trial would not be respected, or he would be killed or subjected to ill-treatment or torture in prison in the event of his extradition. In support of his claims, he provides reports and statements by non-governmental organizations and private individuals on ill-treatment of terrorist suspects in the Russian Federation, describing the situation in Chechnya as one characterized by a significant number of well-founded complaints of torture and inhuman treatment by law enforcement officials. The author states that the criminal case against him was fabricated and that there exists a practice of fabricating criminal cases in the North Caucasus on the basis of insufficiently substantiated charges of participation in terrorist and military activities in the Syrian Arab Republic.

The author claims that the authorities of the State party did not carry out a thorough evaluation of his asylum application and country information concerning the requesting State. He submits that the scope of the examination of his asylum request by the State party was limited to an assessment of the compliance of his request with requirements for granting refugee status, whereas the possibility of granting him subsidiary protection and the compatibility of his removal with the principle of non-refoulement were not assessed.

By a note verbale dated 21 August 2019, the State party submitted its observations on admissibility and the merits of the communication. The State party argued that the decisions of the domestic authorities in the author’s case were lawful, and that his extradition was justified and proportionate, taking into account the fact that the author was on the international wanted list for criminal charges related to terrorism.

Concerning the decision taken by the Ministry of Security in relation to the author’s asylum request, the State party submits that the Ministry carefully examined the evidence submitted by the author, together with the relevant country information, and found that there was no real risk of the author being subjected to persecution in his country of origin and that the author did not fulfil the requirements for granting refugee status. In response to the author’s argument that the asylum authority only examined whether the author met the requirements for granting refugee status and did not consider the possibility of granting him subsidiary protection, nor did it examine whether the author’s return would be in compliance with the principle of non-refoulement, the State party explains that, in the framework of the domestic asylum procedure under the Asylum Act, granting one form of protection excludes the other forms of protection. In particular, if grounds for persecution such as race, religion, nationality, political opinion or affiliation to a social group, as in the present case, are alleged, the asylum application is considered in the context of determining refugee status. In the present case, the author’s asylum request was considered in the context of determining refugee status, as all allegations related to political opinions. In that connection, his application was not considered in the context of granting subsidiary protection. The State party concludes that the present communication, in relation to the asylum procedure and the decision taken by the asylum authority, is unfounded.

Concerning the decision on the extradition request adopted by the Ministry of Justice on 8 August 2018, the State party argues that the decision was lawful, issued within the competence of the Ministry and in compliance with the standards applied by it in similar cases. The State party explains the domestic procedure in extradition cases and submits that, once the Ministry of Justice received the extradition request from the requesting State, the Office of the Prosecutor of Bosnia and Herzegovina examined the request and concluded that it complied with legal requirements. Thereafter, the request was transmitted to the Court of Bosnia and Herzegovina for examination. In its decision of 2 July 2018, the Court established that legal requirements for the author’s extradition had been met. The decision was upheld on appeal by the Appellate Division of the Court of Bosnia and Herzegovina. The State party explains that, in determining whether or not the extradition requirements were met in the author’s case, the Court of Bosnia and Herzegovina specifically took into consideration the fact that the author had expressed his intention to apply for asylum on 4 June 2018, whereas the extradition request in relation to the author was issued on 19 April 2018. The Court, therefore, concluded, in accordance with the Act on Legal Assistance in Criminal Matters, that the asylum request did not constitute an obstacle to the author’s extradition. The State party submits that, while authorizing the author’s extradition, the Ministry of Justice examined all the documents in the author’s case, including the decisions adopted by the Court of Bosnia and Herzegovina. Taking into account the determination by the Court that legal requirements for the extradition had been fulfilled, the Ministry of Justice issued the decision granting the extradition request.

The State party informs the Committee that the author was extradited to the Russian Federation on 25 October 2018.

On 14 April 2020, the author submitted comments on the State party’s observations on admissibility and the merits of the communication. The author reiterated the factual circumstances of the case relating to his arrest on 21 March 2018 and indicated that, until 4 July 2018,¹⁴ he was not given an opportunity to apply for asylum.

14. The date as reflected in the respective comments. No further details are provided in relation to what prevented the author from applying for asylum before the specified date. ↩

Commenting on the conclusion reached by the Court of Bosnia and Herzegovina in his extradition case to the effect that the asylum request had been lodged after the extradition request had been made and, therefore, under national legislation, did not constitute an obstacle to the extradition, the author argues that article 34 of the Act on Legal Assistance in Criminal Matters, which was applied in his case, contradicts international refugee law and other relevant international and regional human rights instruments ratified by the State party.

The author further emphasizes that, despite the Committee’s decision to grant interim measures in the case, the author was extradited to his country of origin shortly after the decision of the Committee was notified to the State party. The State party, thus, failed to respect the Committee’s decision on interim measures and did not provide any explanation for its failure.

The author reiterates that his rights under articles 6 and 7 of the Covenant have been violated. He argues that the authorities of the State party failed to conduct a detailed and comprehensive assessment of the existence of a real risk of torture, or inhuman or degrading treatment or punishment in the event of his return to his country of origin. Given that criminal proceedings had been initiated against him, his arrest and detention upon return were certain. In those circumstances, due consideration should have been given to a number of reports concerning the requesting State in relation to cases of torture of detainees, excessive use of force by police officers, inhumane prison conditions and other violations of fundamental human rights. The author’s asylum application was examined solely in the context of granting refugee status with respect to the alleged violations related to political opinions, whereas the asylum application was not considered in the context of subsidiary protection. By applying the Act on Legal Assistance in Criminal Matters, which is not harmonized with international standards, in particular with the principle of non-refoulement, the State party failed to provide adequate protection.

The Committee notes 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 measure requested by the Committee with a view to preventing irreparable harm undermines the protection of the rights enshrined in the Covenant.

As indicated in paragraph 19 of the Committee’s general comment No. 33 (2008), failure to implement interim measures is incompatible with the obligation to respect, in good faith, the procedure of individual communications established under the Optional Protocol. The Committee is therefore of the view that, by failing to respect the request for interim measures transmitted to the State party on 17 October 2018, the State party failed in its obligations under article 1 of the Optional Protocol.¹⁵

15. B.A. et al. v. Austria (CCPR/C/127/D/2956/2017), paras. 9.1 and 9.2; F.F.J.H. v. Argentina (CCPR/C/132/D/3238/2018), paras. 16.1 and 16.2; and Lapshin v. Belarus (CCPR/C/135/D/2945/2017), paras. 7.1 and 7.2. ↩

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.

The Committee notes the information provided by the author that, before submitting the present communication, he had lodged requests for interim measures before the European Court of Human Rights on two occasions, and that the requests had been rejected by the Court on 28 August and 7 September 2018. The Committee also notes the author’s submission that he did not pursue further his application before the European Court of Human rights. In those circumstances, the Committee considers that it is not precluded by the requirements of article 5 (2) (a) of the Optional Protocol from examining the present communication.

With regard to the requirement set out in article 5 (2) (b) of the Optional Protocol, the Committee recalls that authors must avail themselves of all domestic remedies in order to fulfil the said requirement, insofar as such remedies appear to be effective in the given case and are de facto available to the author. In the present case, the Committee observes that the author’s asylum request was rejected by the Ministry of Security on 16 August 2018 and that he decided not to challenge the decision before the competent domestic courts, arguing that this legal avenue would be ineffective as, in the particular circumstances of the case, the appeal would not suspend his extradition. The Committee also takes note of the author’s argument that he did not have any further domestic remedies at his disposal to challenge the decision of the Ministry of Justice of 8 August 2018 on his extradition. In the absence of any observations by the State party on that subject, the Committee finds that there is no obstacle to the admissibility of the communication under article 5 (2) (b) of the Optional Protocol.¹⁶

16. See, for example, S.Z. v. Denmark (CCPR/C/117/D/2443/2014), para. 8.3. ↩

The Committee notes the author’s claims under articles 6 and 7 of the Covenant that his extradition to the Russian Federation would put him at risk of death, torture or inhuman or degrading treatment. In that connection, the Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant.¹⁷ The Committee has also indicated that the risk must be personal¹⁸ and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists.¹⁹ In making that assessment, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.²⁰ The Committee further recalls its jurisprudence that considerable weight should be given to the assessment conducted by the State party,²¹ and that it is generally for organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine whether such a risk exists, unless it is found that the evaluation was clearly arbitrary or amounted to a manifest error or denial of justice.²²

17. General comment No. 31 (2004), para. 12. ↩
18. X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2. ↩
19. Ibid.; and X. v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18. ↩
20. X. v. Sweden, para. 5.18. ↩
21. Z.H. v. Australia (CCPR/C/107/D/1957/2010), para. 9.3; E.P. and F.P. v. Denmark (CCPR/C/115/D/2344/2014), para. 8.4; A.E. v. Sweden (CCPR/C/128/D/3300/2019), para. 9.3; C.C.N. v. Sweden (CCPR/C/136/D/3701/2020), para. 6.7; and Z v. Denmark (CCPR/C/137/D/2795/2016), para. 6.8. ↩
22. E.P. and F.P. v. Denmark, para. 8.4; M.L.A. v. Sweden (CCPR/C/135/D/3216/2018), para. 7.5; Rudurura v. Sweden (CCPR/C/136/D/3706/2020), para. 8.2; and A.B. v. Denmark (CCPR/C/137/D/2748/2016), para. 7.7. ↩

The Committee observes that, as grounds for the alleged risks, the author invokes in his complaint before the Committee the general situation in his country of origin and his specific situation, in particular his religion (Sunni Muslim), Chechen ethnicity and the nature of the criminal charges brought against him. The Committee also observes that the author’s asylum request, as formulated before the competent domestic authority of the State party, was thoroughly examined and rejected as unfounded. His complaints as to the alleged risks to his life and health raised in the framework of the extradition proceedings were also examined in detail and rejected as unsubstantiated. Taking into account the information and documents provided by the author, the Committee notes that the material before it, as presented, does not permit it to conclude that the examination by the authorities of the State party of the author’s claim concerning his fears and risks upon return to the Russian Federation was clearly arbitrary or amounted to a manifest error or denial of justice.

The Committee takes note of the general information on the human rights situation in the requesting country. It also notes the author’s allegations related to his alleged past experience of persecution and threats received from the authorities in Chechnya, which allegedly prompted him to flee to Türkiye. The Committee notes in that respect that the author’s account, as submitted both before the Committee and the State party’s domestic authorities, is of a general nature, vague and lacking in detail, and that the materials before the Committee contain contradictory information concerning the circumstances of the author’s departure from his country of origin. The Committee also notes that the author has failed to justify such contradictions and to submit any evidence to substantiate his alleged persecution or threats allegedly received from Chechen authorities. It considers that the author has failed to substantiate that he would be exposed to a real and personal risk of death or torture in violation of articles 6 and 7 of the Covenant in the event of his extradition to the Russian Federation.²³

23. T.T. v. Ukraine (CCPR/C/134/D/2985/2017), para. 5.6. ↩

The Committee further notes the author’s fear that, due to “corruption and anarchy”, his right to a fair trial would not be respected in the event of his extradition to the Russian Federation and that he would be killed or subjected to ill-treatment or torture in prison in the event of his extradition. It notes, however, in addition to arguments already invoked in the previous paragraphs, that the author has failed to provide any further and detailed arguments to substantiate those allegations, which, in his view, would contribute to prove a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant. The Committee thus finds that the part of the communication concerning articles 6 and 7 is inadmissible under article 2 of the Optional Protocol for lack of substantiation.

The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;