A.S. v. RUSSIA - 17833/16 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2019] ECHR 364 (21 May 2019)

In the case of A.S. v. Russia ,

The European Court of Human Rights ( Third Section ), sitting as a Committee composed of:

Alena Poláčková , President,
Dmitry Dedov ,
Jolien Schukking, judges,
and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 30 April 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 17833/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Syrian national, Mr A.S. ("the applicant"), on 17 June 2016.

2. The applicant was represented by Ms D. Trenina and Ms E. Davidyan , lawyers practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin , the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3. The applicant alleged, in particular, that his being returned to Syria would breach his rights, as guaranteed by Articles 2 and 3 of the Convention, and that he had had no effective remedies in respect of these complaints, in breach of Article 13 of the Convention. The applicant also alleged that his detention in Russia had been in breach of Article 5 of the Convention.

4 . On 17 June 2016 the Court decided to indicate to the Russian Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Syria for the duration of the proceedings before the Court. The applicant ' s case was also granted priority (under Rule 41) and confidentiality (under Rule 33), and the applicant was granted anonymity (under Rule 47 § 4).

5. On 5 August 2016 the application was communicated to the Government.

6. On 6 December 2018 the Government were informed that the application would be examined by a Committee and that, if they so wish, they could submit their comments by 19 December 2018. No reply was received from the Government in this respect.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1987 and lived in Syria before he came to Russia in 2015.

8. The facts of the case may be summarised as follows.

A. The applicant ' s arrest and expulsion proceedings

9. On 23 March 2016 the applicant was arrested for violation of migration rules. On the same day the Oktyabrskiy District Court of Izhevsk ("the district court") imposed an administrative fine on the applicant and ordered his administrative removal and detention until his removal.

10. On 5 April 2016 the Supreme Court of the Republic of Udmurtiya excluded the removal order from the administrative penalty imposed on him by the district court.

11 . On 2 June 2016 the applicant was released.

12. On 3 June 2016 the Supreme Court of the Republic of Udmurtiya re - opened the applicant ' s case at the request of the migration official and sent it for re-examination to the district court.

13 . On 16 June 2016 the district court reviewed the administrative removal order of 23 March 2016 and confirmed its validity. The applicant was detained on the same day. On 12 September 2016 the judgment of 16 June 2016 was upheld by the Supreme Court of the Republic of Udmurtiya . On 7 February 2017 the applicant filed a cassation appeal against these three decisions at the Supreme Court of the Russian Federation.

14 . On 15 July, 7 November and 19 December 2016 and 27 January, 2 March and 10 April 2017 the Oktyabrskiy District Court of Izhevsk allowed an application lodged by the bailiff for the postponement of the enforcement of the order of administrative removal by one month owing to the application of an interim measure by the Court on 17 June 2016. The district court granted the bailiff ' s request having relied on Article 31.5 of the Code of Administrative Offences (("the CAO"), see paragraph 21 below). In these proceedings the applicant ' s lawyer also argued that there was a lack of grounds for the applicant ' s detention and requested that the enforcement proceedings be terminated and that the applicant be released. However, the district court dismissed her arguments, having concluded that,

"the grounds for the applicant ' s detention had already been established by the court in the removal proceedings and the discontinuation of the enforcement proceedings in the circumstances of [the applicant ' s] case is not provided for by Article 31.7 of the CAO" (see paragraph 22 below).

All these decisions, except the one of 15 July 2016 (no appeal was brought), were upheld by the Supreme Court of the Republic of Udmurtiya .

15 . On 17 May 2017 the Supreme Court of the Russian Federation ("the Supreme Court") examined the cassation appeal complaint of the applicant and reviewed the judgments issued in respect of his removal (see paragraph 13 above). The Supreme Court confirmed the judgments but discontinued the enforcement of administrative penalty in the form of the removal imposed on the applicant on 23 March 2016. The Supreme Court found that the applicant might be exposed to a risk of torture or ill-treatment in Syria in the event of his return there. On 2 June 2017 the applicant was released (after the decision entered into force).

B. Proceedings for refugee status and asylum in Russia

16. On 11 May 2016 the applicant ' s request for refugee status was dismissed. According to the applicant, he did not appeal against this decision because the migration authorities had convinced the applicant that "his application for temporary asylum would be granted".

17. On 4 July 2016 the applicant ' s request for temporary asylum was dismissed.

18. On 25 November 2016 a second request lodged by the applicant for temporary asylum was denied by the migration authorities and the applicant did not lodge a complaint against this refusal.

C. Departure for a third country

19 . According to the information provided by the applicant ' s lawyer on 9 November 2017, while the proceedings before the Court were ongoing, the applicant left Russia of his own volition on 2 August 2017 and had settled in Sweden.

II. RELEVANT DOMESTIC LAW AND PRACTICE

20. The relevant domestic law and practice relating to the expulsion and detention of foreign nationals in Russia, refugee status, temporary asylum, and the situation of Syrian nationals in the country is summarised in the Court ' s leading judgment in the case of L.M. and Others v. Russia , nos. 40081/14and 2 others, §§ 61- 75, 15 October 2015, and in the follow up case of S.K. v. Russia , no. 52722/15, §§ 23-41, 14 February 2017.

21 . Article 31.5 of the Code of Administrative Offences ("the CAO") provides that when the enforcement of, inter alia , of the administrative penalty in the form of removal is not possible within the procedural time - limits, the courts may postpone the enforcement of a decision imposing an administrative penalty by one month.

22 . Article 31.7 of the CAO provides that a court which has issued a decision imposing an administrative penalty discontinues the enforcement of that decision in a number of specific cases (such as, for instance, an amnesty act, the debtor ' s death, a change of legislation, or the expiration of the procedural time-limits), or in the event of a delivery, in cases provided for by the CAO, of a decision to discontinue the execution of the decision imposing an administrative penalty (Article 31.7 § 6 of the CAO).

23 . Article 218 § 1 of the Code of Administrative Procedure ("the CAP") provides that a person may lodge a complaint before a court concerning an act or decision by any State or municipal authority or official if he considers that it has violated his rights and freedoms. The complaint may concern any decision, act or omission which has violated that person ' s rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on him.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2, 3 AND 13 OF THE CONVENTION

24. The applicant complained that his expulsion to Syria, if carried out, would be in breach of his right to life and the prohibition on torture, inhuman and degrading treatment provided in Articles 2 and 3 of the Convention. He also complained, under Article 13 of the Convention, that he had not had at his disposal effective domestic remedies in respect of his complaints under Articles 2 and 3. The relevant provisions read as follows:

Article 2

"1. Everyone ' s right to life shall be protected by law..."

Article 3

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

25. The Government contested that argument.

26. The Court notes that the applicant left Russia on 2 August 2017 for Sweden and settled there (see paragraph 19 above). Thus, it considers that he no longer faces expulsion to Syria and a risk of death and/or ill-treatment there.

27. The Court considers that it is no longer justified to continue the examination of the present case as regards this complaint (see Rakhmonov v. Russia , 11673/15, 31 May 2016) and the closely linked complaint under Article 13 of the Convention. The Court is furthermore satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of this part of the application (Article 37 § 1, in fine ).

28. Accordingly, the Court decides to strike the present application out of its list of cases in so far as it concerns complaints of death and/or ill - treatment in the event of the applicant ' s expulsion to Syria from Russia and the alleged absence of effective domestic remedies in respect of these claims.

29. The above findings do not prevent the applicant from lodging a new application with the Court in the future and making use of the available procedures - including the one under Rule 39 of the Rules of Court - in respect of any new circumstances.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

30. The applicant complained that his detention pending expulsion proceedings had been unlawful and unduly prolonged. The applicant furthermore complained that he had not had access to effective judicial review of his detention. He relied on Article 5 § 1 (f) and Article 5 § 4 of the Convention. The relevant parts of Article 5 of the Convention read as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition..."

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful..."

A. Admissibility

31. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

32. The Court will consider firstly whether there was effective judicial supervision over the lawfulness of the applicant ' s detention, as required by Article 5 § 4 of the Convention, and secondly whether his detention was compatible with the requirements of Article 5 § 1 (f) of the Convention

1. Compliance with Article 5 § 4 of the Convention

33. The Court reiterates that the purpose of Article 5 § 4 of the Convention is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person ' s detention to allow that person to obtain a speedy judicial review of the legality of the detention, capable of leading, where appropriate, to release (see Azimov v. Russia , 67474/11, § 150, 18 April 2013).

34. The Court has found a violation of Article 5 § 4 of the Convention in many cases against Russia on account of the absence of any domestic legal provision which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion and to secure, if appropriate, his release (see L.M. and Others v. Russia , nos. 40081/14, 40088/14and 40127/14, §§ 140-42, 15 October 2015; Rakhimov v. Russia , no. 50552/13, §§ 148-50, 10 July 2014; Akram Karimov v. Russia , no. 62892/12, §§ 199-204, 28 May 2014; Egamberdiyev v. Russia , no. 34742/13, § 64, 26 June 2014; and Azimov v. Russia , cited above, § 153).

35 . From the outset the Court observes that the review proceedings conducted by the Oktyabrskiy District Court of Izhevsk upon the bailiff ' s request to postpone the enforcement of the removal order (see paragraph 14 above), did not satisfy the requirements of Article 5 § 4. Although the court may examine a complaint against an official act or omission and declare unlawful a delay in the removal proceeding, it may not order the detainee ' s release or set a time-limit for his or her detention (see paragraph 23 above and also Chkhikvishvili v. Russia , no. 43348/13, §§ 17 and 2 7, 25 October 2016). In particular, the review by the Oktyabrskiy District Court of Izhevsk in the present case was limited in scope only to the matter of suspension of the enforcement proceedings. The court did not assess the applicant ' s arguments concerning unlawfulness of his detention, dismissing them in a summary manner and it did not elaborate on the reasons justifying the need for continuous detention of the applicant (see paragraph 14 above).

36 . In these circumstances, it cannot be said that the applicant had at his disposal a procedure for a judicial review of the lawfulness of his detention pending expulsion capable of leading, where appropriate, to his release Accordingly, the Court holds that there has been a violation of Article 5 § 4 of the Convention.

2. Compliance with Article 5 § 1 of the Convention

(a) The Government ' s submissions

37. The Government submitted that the term of the applicant ' s detention should be divided into two separate periods: from 23 March until 5 April 2016 and from 16 June 2016 until "the present" (the time when they submitted their observations and the applicant was still in detention).

38 . With regard to the first period, the Government stated that the applicant ' s detention had been ordered by a court for violation of migration regulations and that it had lasted only fourteen days, after which the applicant had been released after the Supreme Court of the Republic of Udmurtiya had amended the expulsion order and excluded expulsion from the applicant ' s punishment. Furthermore, the applicant could not have been expelled immediately after 23 March 2016 because his appeal against the expulsion order had had to be considered by the court. In addition, the period of fourteen days in detention had not exceeded the time reasonably required for the purpose pursued (to prevent the individual in question from committing an offence or fleeing).

39. As regards the second period of the applicant ' s detention, it had started on 16 June 2016, when the Supreme Court of the Republic of Udmurtiya had confirmed the expulsion order. On 17 June 2016 the Court had indicated to the Government that the applicant should not be removed from Russia to Syria or another country for the duration of the proceedings before the Court. Furthermore, in the Government ' s view,

" the indication of the interim measures cannot serve per se as a ground for the unconditional release of the applicant from detention ... until the delivery of the Court ' s judgment in the case, the applicant ' s expulsion is not banned completely. And, in order to ensure the eventual enforcement of the applicant ' s expulsion the authorities have to hold him in detention, as he is a foreigner with no registered place of residence and employment in the territory of the Russian Federation. Moreover, it should be born in mind that once the applicant ' s visa expired, instead of leaving the country, he fled to the Udmurt Republic where he illegally resided until his arrest ... The above fact gives the Russian Government strong reasons to believe that the applicant will go into hiding once at large. Thus, there are no grounds for replacing the applicant ' s detention with a milder measure of restraint."

40. Lastly, the time-limit for the applicant ' s detention had not been specified in the relevant court decision of 23 March 2015 because in regular circumstances it did not take a long time to enforce an expulsion order. The maximum period for enforcing such an order was two years from the date of the relevant expulsion order becoming final.

(b) The applicant ' s submissions

41. The applicant submitted that no actions could have been taken in respect of his expulsion after the application of the interim measure by the Court. Therefore, there had been no grounds for his detention after 17 June 2016. The applicant furthermore referred to the case of Azimov v. Russia (cited above) , where the Court had found that the suspension of the domestic proceedings owing to the indication of an interim measure by the Court should not result in a situation where the applicant in question remained in detention for an unreasonably long period. The applicant also noted that the absence from the court ' s decisions of any time-limit for his detention demonstrated that his detention had been arbitrary. Referring to the case of Azimov , the applicant also submitted that under Russian law, the maximum deprivation of liberty for an administrative offence was thirty days and that detention with a view to expulsion should not be punitive in nature, unlike in his case, in which the "preventative" measure in question had been much graver than the "punitive" one stipulated in law.

42. The court reiterates that any deprivation of liberty under the second limb of Article 5 § 1 (f) of the Convention will only be justified for as long as deportation or extradition proceedings are in progress. If such proceedings are not carried out promptly, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (see L.M. and Others v. Russia , cited above, § 146, 15 October 2015). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) of the Convention must be carried out in good faith; it must be closely connected to the grounds for detention relied on by the Government, the place and conditions of detention must be appropriate, and the length of the detention must not exceed that reasonably required for the purpose pursued (ibid.).

43. Having regard to the information submitted by the parties, the Court notes that on 23 March 2016 the applicant was detained for having breached immigration regulations, with a view to being expelled, and it appears that his detention was carried out in good faith and in compliance with Article 5 § 1 (f) of the Convention. The time-limit was indeed not specified in the expulsion order. However, the applicant ' s detention was promptly reviewed and the applicant was released fourteen days later (see paragraphs 11 and 38 above). The Court therefore finds that the applicant ' s detention between 23 March and 5 April 2016 was justified and its length was not unreasonable in the circumstances.

44. The Court further notes that on 16 June 2016 the Supreme Court of the Republic of Udmurtiya re-examined the applicant ' s case and upheld the expulsion order of 23 March 2016, after which the applicant was again detained (see paragraph 13 above) and that on 17 June 2016 the Court indicated to the Russian Government that they should not expel the applicant to Syria for the duration of the proceedings before the Court (see paragraph 4 above). As from that moment onwards, and during the next eleven months of the applicant ' s detention, the bailiffs ' office lodged six requests with the Oktyabrskiy District Court of Izhevsk for the postponement of the enforcement of the expulsion order (see paragraph 14 above) and the court granted these requests.

45. The Court reiterates that suspension of the domestic proceedings due to the indication of an interim measure by the Court should not result in a situation where the applicant languishes in prison for an unreasonably long period (see Azimov v. Russia , cited above , § § 169- 71, 18 April 2013) .

46 . In the instant case the applicant was released after eleven and a half months of detention. However, the Court observes that no specific time-limits for the applicant ' s detention pending expulsion were expressly set by the courts. Furthermore, the Court observes that the "preventative" measure of detention with a view to expulsion in the applicant ' s case had been, in terms of gravity, much more serious than the "punitive" measure for an administrative offence - the maximum penalty stipulated in the COA being a deprivation of liberty of thirty days - and that throughout the whole period of the applicant ' s detention when the interim measure applied by the Court was in force, the removal proceedings were not "in progress" (see Azimov v. Russia , cited above, §§ 172 and 170, respectively) and the domestic courts did not re-examine the question of the lawfulness of the applicant ' s continuous detention (see paragraph 35 above).

47 . Finally, the Court observes that although the authorities were aware that the examination of the case before the Court can take some time, they did not try to find "alternative solutions" which would secure the enforcement of the expulsion order in the event if the interim measure under Rule 39 came to an end (see Keshmiri v. Turkey (no. 2), no. 22426/10, § 34, 17 January 2012; see also, mutatis mutandis , Mikolenko v. Estonia , no. 10664/05, §67, 8 October 2009).

48 . In view of the above considerations, the Court concludes that there has been violation of Article 5 § 1 (f) of the Convention.

III. APPLICATION OF AN INTERIM MEASURE UNDER RULE 39 OF THE RULES OF THE COURT

49. On 17 June 2017 the Court indicated to the respondent Government, under Rule 39 of the Rules of the Court, that the applicant should not be removed from Russia to Syria for the duration of the proceedings before the Court.

50. On 2 August 2017 the applicant left Russia of his own volition and settled in Sweden.

51. In this regard, the Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final. Accordingly, the Court considers that the measures indicated to the Government under Rule 39 of the Rules of the Court have come to an end.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

53. The applicant claimed 10,000 euros (EUR) in respect of non - pecuniary damage.

54 . The Government stated that in the event of the Court finding a violation, any just satisfaction awarded to the applicant should be in compliance with the Court ' s well-established case-law.

55. H aving regard to its conclusions under Article 5 of the Convention (see paragraphs 35-36 and 46-48 above) and acting on an equitable basis , the Court awards the applicant EUR 9,750 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

56. The applicant also claimed EUR 4,320 for the costs and expenses incurred before the domestic courts and the Court (EUR 1,200 by Ms. D. Trenina and EUR 3,120 by Ms E. Davidyan ).

57. The Government submitted that the applicant ' s claim for costs and expenses was not supported by the documents and that it was excessive.

58. Having regard to the circumstances of the present case and the documents in its possession, the Court making its assessment on equitable basis, as required by Article 41 of the Convention, awards EUR 1,200 to Ms Trenina and EUR 2,500 to Ms Davidyan .

C. Default interest

59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to strike out complaints under Articles 2 and 3 of the Convention concerning the risk of death and/or ill-treatment in the event of the applicant being expelled to Syria from Russia and the alleged absence of effective domestic remedies in respect of these claims under Article 13 of the Convention;

2. Declares the complaints under Article 5 § § 1 (f) and 4 concerning unlawful detention and lack of effective judicial review in respect of such detention admissible;

3. Holds that there has been a violation of Article 5 §§ 1 (f) and 4 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,750 (nine thousand seven hundred fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of costs and expenses to Ms. D. Trenina ;

(iii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses to Ms. E. Davidyan ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 21 May 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> A.S. v. RUSSIA - 17833/16 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2019] ECHR 364 (21 May 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/364.html Cite as: ECLI:CE:ECHR:2019:0521JUD001783316, [2019] ECHR 364, CE:ECHR:2019:0521JUD001783316