ECtHR – Z.A. and Others v. Russia, Applications nos. 61411/15, 61420/15, 61427/15 and 3028/16, 21 November 2019

Facts:

The case concerns Mr Z.A., an Iraqi National, Mr A.M., a Somalian national, Mr H.Y., a Syrian national, and Mr M.B., holding a Palestinian passport.

In 2015, all four applicants entered the Sheremetyevo Airport (Moscow) involuntarily because they had been denied entry into the country they wanted to go and deported or sent back to Russia, which represented a previous transit country for all applicants. Officers of the Russian Border Guard Service of the Federal Security Service (“the BGS”) seized each applicant’s passport upon their arrival and handed them to the aircraft crew only when the applicants were about to take a flight out of Sheremetyevo Airport.

Not having a visa to enter Russia, all applicants sought asylum in Russia. They were all confined in the transit zone of the airport waiting for the outcome of their asylum application for a time ranging from five months and one day to more than one year and nine months. During this period, all applicants were left to their own devices, have to sleep for months on the floor in a constantly lit, crowded and noisy airport transit zone without unimpeded access to shower or cooking facilities, the possibility to spend time outdoor and access to medical or social assistance. Furthermore, the applicants always remained under the permanent control of the BGS.

Decision & reasoning:

Alleged Violation of Art. 5 § 1 (f) of the ECHR

The applicants complained that their lengthy confinement in the airport transit zone for an indefinite and unforeseeable period in the absence of a specific legal provision justifying it was in breach of Art. 5 § 1.

The Court first found that the applicants were deprived of their liberty within the meaning of Art. 5 of the Convention. For determining whether someone has been deprived of his/her liberty and is not only subject to a restriction of liberty, the Court reiterated the necessity of a realistic and practical approach. In applying this approach to the present case, the Court considered the lack of any domestic legal provisions setting out the maximum duration of the applicants’ stay, the largely irregular character of the applicants’ stay in the Sheremetyevo airport transit zone, the excessive length of such stay and considerable delays in the domestic examination of the applicants’ asylum claims. Moreover, it looked into the characteristics of the area in which the applicants were held, the control to which they were subject during the relevant period of time and the fact that the applicants had no practical possibility of leaving the zone. In this last respect, the Court recalled that the mere possibility for asylum-seekers to voluntarily leave the country where they wish to take refuge cannot exclude a restriction on liberty and that the possibility to leave is only theoretical if no other country offering protection is inclined to take them in.

The Court then found that such deprivation of liberty constituted a violation of Art. 5 § 1 (f) with regard to each applicant, as there was no legal basis for the applicants’ detention within the applicable domestic framework, as prescribed by Art. 5 § 1 for any limitation of liberty.

Alleged Violation of Art. 3 of the ECHR

The applicants complained that the conditions of their detention in the transit zone of Sheremetyevo Airport had amounted to inhuman and degrading treatment in breach of Art. 3 of the Convention.

The Court reiterated that the confinement of aliens and asylum seekers must be accompanied by suitable safeguards and without depriving the asylum seeker of the protection afforded by the 1951 Geneva Convention. The Court further noted that conformity with Art. 3 of the Convention of the manners with which the alien is deprived of his/her liberty must be examined in light of his/her particular situation, the presence of sufficient personal space and other aspects of the physical conditions of detention such as access to outdoor exercise, natural light or air, availability of ventilation and compliance with basic sanitary and hygiene requirements. Finally, the Court affirmed that the prohibition of inhuman or degrading treatment is a fundamental value in democratic and civilised societies. Consequently, even though it noted the difficulties associated with the reception of asylum seekers and migrants, it reiterated that such prohibition is absolute and can never be sacrificed even in the most difficult circumstances.

In light of the above, the Court concluded that the conditions of the applicants’ stay in the transit zone of Sheremetyevo Airport fell short of the minimum standards of respect for human dignity and Article 3.

Outcome:

There has been a violation of Articles 3 and 5 § 1 of the Convention on behalf of all applicants. 

Observations/comments:

This summary was written by Pietro Derossi, Italian lawyer working as researcher, reporter and editor for Migrantes Foundation on 'Vie di Fuga', a permanent observatory on refugees in Europe.