CCPR/C/129/D/2445/2014
4.4
The author’s asylum application was examined by the Moscow office of the Federal
Migration Service in a comprehensive and objective manner within the required deadlines,
taking into account the situation in Kyrgyzstan. On 4 March 2014, the Moscow office of the
Federal Migration Service rejected the author’s asylum application, as he did not constitute
a refugee for the purposes of the 1993 Federal Act on Refugees. Under the Act, a refugee is
a person who has grounded, reasonable fears that he or she will be persecuted based on race,
religion, citizenship, nationality, membership in a particular social group, or political
opinions, and who is outside of his or her country of origin and cannot benefit from the
protection of that country or does not want to benefit from such protection in the light of
those fears.
4.5
The Federal Migration Service concluded that the author risked no persecution in
Kyrgyzstan on the basis of political opinions, race, religion, citizenship, nationality or
membership in a particular social group. No humanitarian considerations prevented the
author’s removal or required his stay in the Russian Federation. The Federal Migration
Service took its decision based on the analysis of the author’s claim and the material provided
by the Prosecutor General’s Office of the Russian Federation regarding his extradition. The
Federal Migration Service found no grounds for believing that, upon extradition, the author
would be at risk of being subjected to torture.
4.6
The State party notes that the author did not apply for asylum when he arrived in the
Russian Federation in January 2009. He did so only in February 2014, after having been
detained in view of his extradition to Kyrgyzstan.
4.7
The author’s fear regarding his criminal prosecution cannot serve as a ground for
granting asylum. Under the criminal law of the Russian Federation, the acts of which the
author is accused in Kyrgyzstan equally constitute a crime sanctioned by a deprivation of
liberty.
4.8
According to the State party, the author’s argumentation regarding not being guilty of
the crime of which he is accused (abscondment from a place of deprivation of liberty) does
not form part of the examination of an asylum claim.
4.9
The author adduced no evidence before the Federal Migration Service confirming the
existence of substantive grounds for fearing cruel treatment by Kyrgyz officials. The Federal
Migration Service has comprehensively examined all grounds for asylum in the author’s case,
which received the necessary assessment and qualification, and, as a result, a decision was
issued in strict conformity with the law and the State party’s international obligations.
4.10 The State party notes that the author’s communication is unsubstantiated and not
compliant with the admissibility criteria under article 5 of the Optional Protocol.
4.11 Under article 412.1 of the Code of Criminal Procedure, decisions having acquired res
judicata force can be re-examined within one year after adoption under the supervisory
review proceedings by the Presidium of the Supreme Court. Under article 412.1 (1) (3) of the
Code of Criminal Procedure, the Presidium of the Supreme Court examines at first instance
court decisions by the supreme courts of the republics, kray or regional courts, the courts of
the cities of federal importance, and the courts of the autonomous regions or autonomous
districts, which have acquired the force of res judicata, provided that they have been subjected
to appeal examination by the Supreme Court of the Russian Federation.
4.12 In that regard, the State party notes that the author could have sought the supervisory
review of the Moscow City Court decision of 9 April 2014 rejecting the appeal against the
decision of the Prosecutor General’s Office allowing his extradition, as well as of the ruling
of the Supreme Court of 25 June 2014 confirming the Moscow City Court’s decision. Thus,
not all domestic remedies have been exhausted by the author.
Author’s comments on the State party’s observations on admissibility
5.1
In a letter dated 16 March 2015, the author’s counsel provided comments on the State
party’s observations on admissibility. Counsel notes that the final decision in the author’s
case was rendered on appeal by the Supreme Court of the Russian Federation on 25 June
2014. The supervisory review proceedings before the Presidium of the Supreme Court
constitute an extraordinary means of appeal. Introducing a protest motion to initiate a
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