ECtHR – L.M. and Others v. Russia, Applications Nos. 40081/14, 40088/14 and 40127/14, 15 October 2015
| Country of applicant: | Syria |
| Court name: | European Court of Human Rights (First section) |
| Date of decision: | 15-10-2015 |
| Citation: | L.M. and Others v Russia, Applications Nos. 40081/14, 40088/14 and 40127/14 [2015] ECtHR |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The applicants, a stateless Palestinian from Syria and two Syrian nationals, had been ordered to be expelled to Syria by the Russian authorities, and were detained in a detention centre in Russia pending this. The Court found that their expulsion to Syria would breach Articles 2 and 3, that Articles 5(4) and 5(1)(f) had been violated with regards to their detention, and that the restrictions on their contact with their representatives had breached Article 34.
Facts:
The applicants are L.M. – a stateless Palestinian from Syria who entered Russia on 9 February 2013, and A.A. and M.A., two Syrian nationals, who entered Russia on 21 April 2013. They were arrested on 14 and 15 April 2014 and had since been detained at a detention centre for foreign nationals in Maloyaroslavets, Kaluga Region, run by the local Federal Migration Service (FMS).
On 15 and 16 May, the Maloyaroslavets District Court found them guilty of administrative offences (breach of immigration rules and working without a permit). The Court ordered them to pay fines and their expulsion to Syria. This was despite the applicants expressing in court that they feared for their lives if returned to Syria, given the ongoing conflict there.
The lawyer representing them lodged appeals for all three of them, which were rejected by the Kaluga Regional Court on 27 May 2014.
On 14 and 21 May 2014, the applicants applied for refugee status to the Kaluga FMS. On 28 May 2014 they also submitted requests for temporary asylum in Russia.
They were questioned by the FMS in June 2014 in respect of these applications, during which they indicated that the reasons for their departure from Syria were the war and danger to their lives.
These proceedings were terminated by the FMS for L.M. and A.A. as on 17 July 2014 they both signed papers in Russian asking their requests not to be considered anymore, which were also signed by a translator. On 16 and 17 September 2014, the FMS decided to refuse M.A.’s requests for refugee status and temporary asylum, considering that he faced no threat of persecution.
On 25 August 2014, A.A. escaped from the detention centre, according to the Russian government, and his whereabouts remained unknown.
On 30 September 2014, L.M. and M.A. submitted new requests for refugee status. However, on 15 October 2014, they both signed papers in Russian asking for these requests not to be considered, again also signed by a translator.
L.M. lodged an application with the ECtHR on 29 May 2014, and A.A. and M.A. on 30 May 2014.
The applicants alleged that their deportation to Syria would be in breach of their rights under Articles 2 and 3 ECHR, that they had no effective domestic remedies in respect of this, contrary to Article 13 ECHR, and that their detention in Russia was in breach of their rights under Articles 3 and 5 ECHR. They also complained under Article 34 ECHR that the restrictions on their contact with their representatives had interfered with their ability to communicate with the Court effectively, and that the lack of interpreting services had further hindered their effective participation in the proceedings before the Court.
Decision & reasoning:
Articles 2 and 3 ECHR with regards to expulsion to Syria – non-exhaustion
The Court dismissed the Government’s argument of non-exhaustion of domestic remedies for the following reasons:
- Firstly, the Court held that the fact that an appeal against a decision from the Russian authorities not to grant refugee status was pending was not an obstacle to the Court’s examination of the application if the expulsion or extradition order remains in force, as the criteria for granting refugee status are not identical to those used for assessing the risk of treatment contrary to Article 3.
- Secondly, the Court found that while the statements of the applicants referring to the war and danger to their lives during the hearings in the District Court were indeed too general, the applicants do not speak Russian and had no legal representative to assist them during the hearings. They furthermore subsequently submitted detailed and corroborated information about the situation in Syria in their statements of appeal, when assisted by representatives.
- Thirdly, from the applicants’ allegations, the facts of the case and the numerous complaints lodged by the applicants’ representatives, the Court concluded that the domestic proceedings concerning the determination of the applicants’ refugee and asylum status were not accessible to them in practice, and therefore could not be considered as a remedy to be used.
Articles 2 and 3 ECHR with regards to expulsion to Syria – merits
Given that the applicants pointed to the general information on the conflict in Syria, the UNHCR recommendation not to carry out expulsions to Syria, information from the Federal Bailiff Service on the impossibility of ensuring travel there, and the position of the FMS in its country report, the Court found that the need for asylum seekers from Syria to have international protection could not have been unknown to the relevant Russian authorities, and that the applicants had presented them with substantial grounds for believing that they faced a real risk to their lives and personal security if expelled.
The Court further found that the applicants’ allegations had not been duly examined by the Russian authorities in the domestic proceedings, as the courts focused on the offences committed by the applicants rather than on an evalutation of their claims under Articles 2 and 3.
Finally, the Court concluded that the applicants’ allegations that their return to Syria would be in breach of Articles 2 and/or 3 were well founded, due to the level of intensity of the conflict in Syria, because the applicants are from Aleppo and Damascus where there was particularly heavy fighting, because they are young men, who are in particular danger of detention and ill-treatment according to Human Rights Watch.
The Court therefore held that the expulsion of the applicants to Syria would be in breach of Articles 2 and 3.
Article 3 ECHR with regards to the conditions of detention
The Court firstly found that given both parties’ submissions, the material conditions of detention at the detention centre could not be regarded as inhuman or degrading. Secondly, given the lack of evidence concerning the allegations of ill-treatment and verbal abuse by the guards, and in light of both parties’ submissions concerning the alleged lack of medical treatment, the Court found that there was no violation of Article 3 in connection to these complaints. This part of the application was therefore rejected.
Article 5(4) ECHR
The Court found that the applicants did not have at their disposal a procedure for judicial review of the lawfulness of their detention, and so it concluded that there had been a violation of Article 5(4) in respect of all three applicants.
Article 5(1)(f) ECHR
The Court found that even though there was sufficient material evidence indicating that no action could be taken with a view to deportation, as no expulsions to Syria were possible, the applicants’ detention had been validated and continued to date. As such, after the regional court upheld the decision on 27 May 2014 to expel and detain them, the applicants were not persons “against whom action [was] being taken with a view to deportation or extradition”. Their detention after 27 May 2014 was therefore not permissible under the exception to the right to liberty set out in Article 5(1)(f).
Moreover, under Russian law the applicants did not have access to judicial review of their detention pending expulsion, and there was no automatic review of detention at regular intervals. The Court further noted that the maximum penalty for deprivation of liberty for an administrative offence under domestic law was thirty days, and so found that it was not normal for the “preventive” measure of detention with a view to expulsion to be much heavier than the “punitive” one concerning the administrative offence.
The Court therefore concluded that there had been a violation of Article 5(1)(f).
Article 34 ECHR
In light of the applicants’ submissions, the facts of the case, the absence of reaction from the Russian Government to this complaint, and the vulnerability of the position of the applicants, the Court found that there was sufficient evidence that their communication with their representatives had been seriously obstructed. Obtaining permission to have meetings was indeed so difficult that it went beyond the usual formalities and could be regarded as excessively complicated, and for months the applicants had remained without any means of communication with their representatives and so could not effectively participate in the domestic proceedings or proceedings before the ECtHR.
The Court therefore concluded that the Russian government had breached Article 34, as the restrictions on the applicants’ contact with their representatives constituted an interference with the exercise of their right of individual petition under the article.
Outcome:
Application partially successful. The Court held that expulsion of the applicants to Syria would constitute a breach of Articles 2 and 3, and that Articles 5(4) and 5(1)(f) had been violated in respect of the applicants’ detention. The Court further held that the restrictions on the applicants’ contact with their representatives had breached Article 34. However, the Court rejected the applicants’ complaint under Article 3 concerning the conditions of their detention.
The Court held that Russia was to ensure immediate release of L.M. and M.A., and awarded EUR 9,000 to each of the applicants in respect of non-pecuniary damage and EUR 8,600 jointly to the applicants in respect of costs and expenses.
Observations/comments:
Articles discussing the case:
Laura Létourneau-Tremblay, “Expulsion of Refugees from Russia to Syria Would Violate International Obligations”, RefLaw, 6 January 2016, available here.
A. Kubal, “Refugees or Migrant Workers? A case study of undocumented Syrians in Russia – LM and Others v Russia”, Journal of Immigration, Asylum and Nationality Law, 30 (4), 265-282, 28 July 2016
This case summary was written by Emily Claire Procter, GDL student at BPP University, London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - A. and Others v. the United Kingdom [GC], Application No. 3455/05 |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Scoppola v. Italy (no. 2) [GC], Application No. 10249/03 |
| ECtHR - Sufi and Elmi v. the United Kingdom, Application Nos. 8319/07 and 11449/07 |
| ECtHR - Kaboulov v. Ukraine, Application No. 41015/04 |
| ECtHR - Gaforov v. Russia, Application No. 25404/09 |
| ECtHR - Khaydarov v. Russia, Application No. 21055/09 |
| ECtHR - M.A. v Cyprus, Application No. 41872/10 |
| ECtHR - Y. v. Russia, Application No. 20113/07 |
| ECtHR - Paladi v. Moldova [GC], Application No. 39806/05 |
| ECtHR - Broniowski v. Poland [GC], Application No. 31443/96 |
| ECtHR - Akdivar v Turkey, Application No. 21893/93 |
| ECtHR - Kozhayev v. Russia, Application No. 60045/10 |
| ECtHR - K.A.B. v. Sweden, Application No. 886/11 |
| ECtHR - Maestri v. Italy [GC], Application No. 39748/98 |
| ECtHR - Saadi v. Royaume-Uni [GC], Application No. 13229/03 |
| ECtHR - Gebremedhin (Gaberamadhien) v France, Application No. 25389/05 |
| ECtHR - H.L.R. v. France, Application no. 24573/94 |
| Gayratbek Saliyev v. Russia, (no. 39093/13) |
| Lebedev v. Russia, (no. 4493/04) |
| Menteş and others v. Turkey, no. 23186/94 |
| ECtHR- Scozzari and Giunta v. Italy [GC], ( Application nos. 39221/98 and 41963/98) |
| ECtHR - Brumărescu v. Romania, no. 28342/95 |
| ECtHR - Shtukaturov v. Russia, (no. 44009/05) |
| ECtHR- Labsi v. Slovakia, Application no. 33809/08, 24 September 2012 |
| ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01 |
| ECtHR - Abdolkhani and Karimnia v. Turkey, (no. 30471/08), 22 September 2009 |
| ECtHR - Mamazhonov v. Russia (no. 17239/13), 23 October 2014 |
| ECtHR - Tukhtamurodov v. Russia (no. 21762/14), 20 January 2015 |
| Azimov v. Russia, no. 67474/11,18 April 2013 |
| ECtHR - Volkov v. Ukraine (Application no. 217722/11 judgment of 9th April 2013 |
| ECtHR - Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005‑I |
| ECtHR - Del Rio Prada v Spain (no. 42750/09), 21 October 2013 |
| ECtHR - Öcalan v. Turkey [GC] (no. 46221/99, ECHR 12 May 2005) |
| ECtHR - Kasymakhunov v. Russia, Application no. 29604/12, 14 November 2013 |
| ECtHR - Kim v. Russia, Application no. 44260/13, 17 July 2014 |
| ECtHR - Ewalaka-Koumou v. Russia, Application no. 20953/03, 4 February 2010 |
| ECtHR - Shakurov v. Russia, Application no. 55822/10, 5 June 2012 |
| ECtHR - Egamberdiyev v. Russia, Application no. 34742/13, 26 June 2014 |
| ECtHR - Khalikov v. Russia, Application no. 66373/13, 6 June 2015 |
| ECtHR - Rakhimov v. Russia, Application no. 50552/13, 10 July 2014 |
| ECtHR - Croke v. Ireland, Application no. 33267/96, 15 June 1999 |
| ECtHR - Jeličić v. Bosnia and Herzegovina, Application no. 41183/02, 15 November 2005 |
| ECtHR - Khodzhayev v. Russia, Application no. 52466/08, 12 May 2010 |
| ECtHR - Akram Karimov v. Russia, Application no. 62892/12, 28 May 2014 |
| ECtHR - Rustamov v. Russia, Application no. 11209/10, 3 July 2012 |
| ECtHR - Melnikov v. Russia, Application no. 23610/03, 14 January 2010 |
| ECtHR - Zakharkin v. Russia, Application no. 1555/04, 10 June 2010 |
| ECtHR - Knyazev v. Russia, Application no. 25948/05, 8 November 2007 |
| ECtHR - Cotleţ v. Romania, Application no. 38565/97, 3 June 2003 |
| ECtHR - Amirov v. Russia, Application no. 51857/13, 27 November 2014 |
| ECtHR - Kudeshkina v. Russia (no. 2), Application no. 28727/11, 17 February 2014 |
Follower Cases:
Other sources:
8th Report of the independent international commission of inquiry on the Syrian Arab Republic (A/HRC/27/60, 13 August 2014), available here.