The decision of the ECHR of December 10, 2020 in the case "Shiksaitov v. Slovakia" (aplications N 56751/16 and 33762/17).
In 2016 and 2017, the applicant was assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to Slovakia.
The case successfully dealt with aplications about the failure of the Slovak authorities to properly consider the issue of the admissibility of the applicant's extradition to his country of origin, despite the fact that another State is a member of the European Union and has granted the applicant refugee status. The case involved a violation of the requirements of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant, a citizen of the Russian Federation of Chechen nationality, was granted refugee status in Sweden due to his political views. An international arrest warrant was issued against the applicant because he allegedly committed terrorist acts in the Russian Federation. During the trip, the applicant was stopped at the Slovak border as a person listed on the Interpol wanted list. Subsequently, the applicant was detained and placed in custody while the Slovak authorities conducted a preliminary investigation into his case, after which the applicant was held in custody with a view to his further extradition to the Russian Federation. In November 2016, the Supreme Court of Slovakia declared the applicant's extradition inadmissible, taking into account his refugee status. The applicant was released from custody and was administratively removed to Sweden.
LEGAL ISSUES
Regarding compliance with subparagraph " f " of paragraph 1 of Article 5 of the Convention. (a) The applicant's detention and detention. The applicant was detained in order to take him to the border service department, since the applicant's name was indicated in the list of persons on the international wanted list. The applicant was taken into custody the next day after the Slovak authorities verified that he was still on the international wanted list, and the Russian authorities confirmed that they would send an extradition request within the established time frame. The above-mentioned measures were aimed at detaining a person "against whom measures are being taken to extradite him", within the meaning of subparagraph "f" of paragraph 1 of article 5 of the Convention. Indeed, at the time under review, the fact that the applicant had refugee status was not known to the Slovak authorities. Consequently, this stage of the applicant's detention does not indicate any arbitrariness.
(b) The applicant's continued detention. The applicant's other complaints of a violation of article 5, paragraph 1 (f), of the Convention concerned the periods of his pre-trial detention and before his extradition to another State. Both relevant detention orders were issued in accordance with the requirements of the legislation of Slovakia.
(i) The alleged inability of the Slovak authorities to properly consider the applicant's refugee status in Sweden. The European Court has repeatedly pointed out that the detention of a person for the purpose of extradition becomes illegal and arbitrary if there are circumstances that, according to the legislation of the issuing State, exclude the extradition of this person. However, it cannot be said in the present case that the applicant's extradition was completely prohibited.
The applicant was granted refugee status in Sweden, not in Slovakia. This decision had extraterritorial mandatory consequences, which consisted in the fact that the assignment of refugee status to the applicant by the authorities of Sweden, one of the States parties to the United Nations Convention relating to the Status of Refugees, adopted on July 28, 1951, (hereinafter referred to as the 1951 Geneva Convention), could be challenged by the Slovak authorities only in exceptional circumstances that give grounds to assume that the person interested in such a decision clearly falls under the exclusive provisions of article 1F of the 1951 Geneva Convention and therefore does not meet the mandatory requirements of the concept of "refugee"contained in the Convention. Consequently, there may be a situation where information obtained during the procedures for the extradition of a person recognized as a refugee may justify a review of the status of this person.
The Slovak courts were entitled to consider whether the exceptional provisions could have been applied to the applicant, especially since it was established that the Swedish authorities did not check the Interpol database when granting the applicant refugee status and did not take into account the nature of the criminal charges brought against the applicant in the Russian Federation. In doing so, the Slovak authorities should have examined all the circumstances of the applicant's case. Given that the requesting State was the State where the applicant was criminally charged (allegedly in connection with the political views of the applicant and his brother), any evidence presented by that State should have been considered with great caution when deciding whether the extradition request was based on fabricated charges and whether the crimes underlying the request could be qualified, as "non-political" within the meaning of article 1F of the 1951 Geneva Convention and subparagraph " b " of paragraph 2 of article 12 of Directive 2011/95/EC of the European Parliament and of the Council of the European Union of December 13, 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, on a single status for refugees or for persons entitled to additional protection, as well as on the content of the protection provided. Moreover, since the Slovak authorities initially concluded that the applicant's actions constituted a "non-political" crime, they were obliged to examine whether there were other circumstances that prevented extradition, such as in the present case, insufficient evidence regarding the charges against the applicant.
In this regard, the Slovak authorities cannot be accused of having conducted a preliminary investigation, despite the fact that the applicant had previously been granted refugee status in Sweden. These procedures can be considered as equivalent to actions "carried out for the purpose of extradition". Although the applicant's extradition to the Russian Federation was eventually declared inadmissible, this fact alone could not retrospectively affect the legality of the applicant's detention until the completion of the examination of the extradition request.
(ii) Whether the entire period of the applicant's detention was justified in terms of article 5, paragraph 1 (f), of the Convention. The main question is whether the measures aimed at the applicant's extradition can be considered to have been taken throughout the entire period of his detention and, consequently, whether his detention was justified in terms of article 5, paragraph 1 (f), of the Convention.
The applicant's detention for subsequent extradition lasted for one year, nine months and 18 days (from 15 January 2015 to 2 November 2016). The Slovak authorities were notified that, starting from 16 January 2015, the applicant had been granted asylum in Sweden, which was quickly confirmed by the Interpol office in Stockholm. The first steps to establish the circumstances of the applicant's obtaining refugee status were carried out in January 2015. In mid-February 2015, the Slovak authorities received a request from the authorities of the Russian Federation for the extradition of the applicant. However, after the hearing in the applicant's case in March 2015, it took the prosecutor six months to request permission from the District Court to extradite the applicant to the Russian Federation. Then it took more than three months until a hearing was scheduled in January 2016, which was eventually postponed. In September 2016, a new hearing was held, according to the results of which the extradition of the applicant was allowed.
In conclusion, although in March 2015 the Supreme Court of Slovakia ruled that the exceptional provisions provided for in article 12 (2) (b) of the above-mentioned Directive 2011/95/EC were applicable to the applicant (given that the applicant was suspected of committing a serious crime of a non-political nature, which prevented the Slovak authorities from accepting and applying the refugee status granted to the applicant by the Swedish authorities), in its decision of 2 November 2016, another chamber of the same court reached the opposite opinion, although no new information was received at that time. Even more important is the fact that information about the applicant's refugee status (which was the main justification for the decision of 2 November 2016), as well as documents relating to the criminal charges brought against the applicant in the Russian Federation (which allowed assessing - with a view to considering the applicability of exceptional norms - the political or non-political nature of the applicant's actions), have been available to the Slovak authorities since February 2015.
Thus, the Slovak authorities did not show activity and thoroughness in collecting all the necessary information and resolving the legal issues raised in the present case. Nothing prevented the Slovak courts from making a decision on the admissibility of the applicant's extradition much earlier than they actually did. Consequently, the grounds for the applicant's detention did not remain valid throughout the entire period under review.
RESOLUTION
The case involved a violation of the requirements of subparagraph " f " of paragraph 1 of Article 5 of the Convention (adopted unanimously).
The Court also ruled unanimously that there had been a violation of Article 5 of the Convention due to the fact that the applicant did not have a legally enforceable right to compensation for the violation of his rights under paragraph 1 of Article 5 of the Convention.
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 8,500 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.