Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No.3786/2020*,**

Communication submitted by:A.P. (represented by counsel, Alaksiej Michalevic and Nikita Matyushchenkov)

Alleged victim:The author

State party:Lithuania

Date of communication:16 January 2020 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure (not issued in document form)

Date of adoption of decision:6 November 2020

Subject matter:Conditions of detention and right to a fair trial upon extradition of the author to the Russian Federation

Procedural issues: Substantiation of claims; exhaustion of domestic remedies

Substantive issues: Fair trial; cruel, inhuman or degrading treatment or punishment; conditions of detention

Articles of the Covenant: 7 and 14

Articles of the Optional Protocol:2 and 5 (2) (b)

1.1The author of the communication is A.P., a national of the Russian Federation. He claims that Lithuania will violate his rights under articles 7 and 14 of the Covenant should it extradite him to the Russian Federation. The Optional Protocol entered into force for Lithuania on 20 February 1992. The author is represented by counsel.

1.2On 24 January 2020, the Special Rapporteur on new communications and interim measures, acting on behalf of the Committee, decided to deny the author’s request for interim measures to suspend his extradition. The Special Rapporteur also decided to refer the author’s submission to the Committee for consideration of its admissibility.

Facts as submitted by the author

2.1Starting in 2003, the author set up a business partnership with E. and Sh. The author was a guarantor for the bank loans of their joint companies. In 2014, when the author asked his partners, who allegedly had wasted the companies’ resources, to return the loans, they threatened him with violence and abuse. On 9 January 2017, a criminal case was opened against the author and his business partners under article 159 (4) of the Criminal Code of the Russian Federation (on the commission of large-scale fraud). It concerned two instances of allegedly illegal recovery of value added tax by two private companies operated by the author’s former business partners.

2.2On 12 March 2017, the author sought asylum in Lithuania. He claimed that the criminal case against him was fabricated and had been initiated unlawfully, using the power of corrupt officials and his former business partners. He feared retribution from his business partners should he be returned to the Russian Federation. On 30 March 2018, the Migration Department refused to grant him asylum. It found the author’s allegations of persecution hypothetical in nature, and based on low and uncertain probability. The author’s application for subsidiary protection was also rejected. The Migration Department found that the available data was insufficient to prove that his criminal case had been fabricated. It also noted that the author had been prosecuted on suspicion of having committed a crime, and that there was no evidence that such prosecution was based on discriminatory reasons or was disproportionate. The Migration Department pointed out, among other things, that there were no reports indicating a risk of arbitrary detention and false charges in the Russian Federation except on political grounds.

2.3On 9 April 2018, the author was charged with two counts of large-scale fraud in the Russian Federation. On 30 April 2018, he lodged an appeal against the Migration Department’s decision to the Vilnius Regional Administrative Court. He claimed that his family was receiving threats against him from private individuals. On 5 June 2018, the Court rejected his appeal, finding the evidence concerning possible persecution in the Russian Federation to be insufficient and the decision of the Migration Department to be lawful and justified. On 18 June 2018, the author appealed to the Supreme Administrative Court. His appeal was rejected on 22 August 2018.

2.4On 16 November 2018, a court in the Russian Federation authorized the author’s preliminary detention for two months after his return. On 26 December 2018, the Office of the Prosecutor General of the Russian Federation requested the author’s extradition. The Office of the Prosecutor General provided diplomatic assurances that the author would be prosecuted only for crimes for which his extradition was sought and would not be subjected to torture or ill-treatment. On 29 November 2019, Vilnius District Court authorized the author’s extradition. On 6 December 2019, the author appealed to the Court of Appeal of Lithuania. At this point in time, he raised claims concerning inadequate conditions in detention facilities of the Russian Federation. He referred, among other things, to data showing that there were numerous instances of torture and inhuman treatment in the detention centres in the Rostov region (to which the author was to be extradited), as well as overall poor and unhygienic conditions of detention. He alleged a failure by Vilnius District Court to request additional documents connected to the criminal investigation against him from the Russian Federation. He claimed that if extradited, he would not have a fair trial, referring to international reports about politically motivated criminal prosecution in the Russian Federation, lack of judicial independence and a low percentage of acquittals in criminal cases. On 20 December 2019, the Court of Appeal of Lithuania authorized the author’s extradition. The Court of Appeal considered the claims raised by the author concerning inadequate conditions of detention and found them to be of a very general nature. The Court of Appeal did not find any flaws in the proceedings of Vilnius District Court, or any evidence that the author would be denied a fair trial upon extradition.

Complaint

3.1The author claims that the conditions in detention facilities in the Russian Federation amount to degrading treatment and will violate his rights under article 7 of the Covenant. In particular, he points to overcrowding, and lack of sanitary standards and heating, among other things. He also refers to reports about incidents of torture in detention facilities. Furthermore, he alleges that the conditions of transportation to prison, as well as the conditions of detention and the treatment of prisoners in prisons in the Russian Federation, amount to a violation of article 7 of the Covenant. He claims that the Lithuanian authorities did not properly assess his claims of inadequate conditions of detention and thus did not comply with their procedural obligations under article 7 of the Covenant. The author claims that the diplomatic assurances provided by the Russian Federation should not be accepted by the State party as a guarantee against inhuman and degrading treatment in detention.

3.2The author further claims that if extradited, he will be denied fair trial guarantees, in violation of article 14 of the Covenant. He claims that the criminal case against him was fabricated, and that the Deputy Prosecutor General of the Russian Federation supervising the criminal case against him agreed with the investigator that he had committed the crimes in question. It is likely that the prosecutor would always support the position of the investigating authority and hamper exercise of the author’s rights in legal proceedings. The author also claims that since his former business partners were found guilty, and he was mentioned as an accomplice in judgments in their cases, the court will be able to use those judgments to find him guilty. It would not be possible for him to prove his innocence. He further claims that the acquittal figure in the Russian system is 0.24 per cent, which would further contribute to the risk associated with his being found guilty.

Issues and proceedings before the Committee

Considerations of admissibility

4.1Before 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.

4.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

4.3The Committee notes the author’s claim that he exhausted all available and effective domestic remedies. The Committee notes, however, that from the information on file, it seems that the author did not raise before domestic courts his claims concerning the conditions of transportation to prison, raised under article 7 of the Covenant. The Committee also notes that the author did not raise before domestic courts his claims under article 14 of the Covenant, raised before the Committee, that is, the alleged bias of the Deputy Prosecutor General of the Russian Federation and the lack of possibility of proving his innocence in courts of the Russian Federation. Neither did the author raise before domestic courts concerns about the insufficiency of the diplomatic assurances offered by the Russian Federation. Accordingly, in the absence of any information or explanation of pertinence on file, the Committee declares these parts of the author’s claim under articles 7 and 14 of the Covenant inadmissible under article 5 (2) (b) of the Optional Protocol.

4.4The Committee notes the author’s claim that article 7 of the Covenant will be violated should he be extradited to the Russian Federation, in view of the conditions of detention in the country’s detention facilities, particularly those in the Rostov region. The Committee also notes the author’s claim that the Lithuanian courts have not properly considered these allegations. However, the Committee notes that the author’s claim concerning conditions of detention was considered by the Court of Appeal of Lithuania, which found the author’s allegations to be of a very general nature and to be insufficient to conclude that his rights would be violated merely on account of the general conditions of detention. The Committee notes that the author disagrees with the conclusion of the Court of Appeal, without however having provided concrete arguments to support his claim of inadequate assessment by the courts. In the light of this, the Committee finds the author’s claim under article 7 of the Covenant insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

4.5The author’s remaining argument under article 14 of the Covenant concerning the low rate of acquittals by courts in the Russian Federation cannot in itself be considered a sufficient substantiation of the author’s allegation of lack of fair trial upon extradition. Accordingly, the Committee finds the author’s claim under article 14 insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

5.The Committee therefore decides:

(a)That the communication is inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol;

(b)That the present decision shall be transmitted to the State party and to the author.