ECtHR – M.D. and Others v. Russia, Application nos. 71321/17 and 9 others, 14 September 2021

Facts:

The Applicants entered Russia with valid visas, but they remained in the country once the allowed period of stay had expired. After been apprehended by the Russian police, the District Courts found them guilty of breaching the applicable immigration regulations. The District Courts ordered their expulsion, as well as their detention while the expulsion was pending. The Appeal Courts dismissed the Applicants’ claims.

Decision & reasoning:

 1. Alleged violation of Articles 2 and 3 ECHR as a result of the ordering of the expulsion of the Applicants from Russia

An issue may arise, under Articles 2 (Right to life) and 3 (Prohibition of torture) ECHR, if a Contracting State deports a foreign national when there are substantial grounds for believing that the individual faces a real risk of death or ill-treatment in the destination country [89-90]. The Court applies the relevant principles developed in its case law regarding claims against Russia by applicants from countries of Central Asia [91].

The Court states that the Applicants’ general allegations concerning the war in Syria and their lack of participation throughout the hearings before the District Courts were due to the Applicants’ lack of command of the Russian language. Once they obtained legal representation, they presented detailed statements regarding their personal circumstances, as well as references to UN documents concerning the general situation in Syria, both before the Appeal Courts and the migration authorities. Moreover, domestic courts were aware of the publications of UN bodies alleging that forced returned of Syrian nationals was not recommended [92-95]. In conclusion, the national courts had substantial grounds for believing that there was a real risk of death or ill-treatment if the Applicants were returned to Syria [96]. 

Determining whether the national jurisdictions have conducted an appropriate assessment of the evidence presented before them to prove the real risk of ill-treatment or death if a person is deported [97]. The Court reiterates the difference set out on its previous judgements (F.G. v Sweden and J.K and Others v. Sweden). If the asylum claim is based on a “well-known general risk”, Articles 2 and 3 ECHR entail an obligation for States to proceed to an analysis of the risk on its own initiative. On the contrary, if it is based on an individual risk, the Applicant must present evidence to prove it. However, due to the absolute nature of the rights guaranteed by Articles 2 and 3 ECHR, States must carry out an assessment of the risk ex propio motu when they become aware of facts regarding a specific individual that could expose him to a risk of death or ill-treatment upon deportation [97].

In the instant case, although the Applicants adduced scarce evidence, the District Courts had the obligation to carry out an assessment of the situation in Syria on their own. They knew that the Applicants couldn’t meaningfully present evidence, and they were aware of the conflict in Syria and the lack of security in the country. The District Courts didn’t comply with their obligation, under Articles 2 and 3 ECHR, because they solely focused on the illegality of the Applicants’ actions, without assessing the general risks in the destination country [98-99]. Although the Appeal Courts mentioned relevant sources, they didn’t apply them to the cases, nor did they rely on the most recent documents recommending not to deport Syrian nationals [100]. Considering the inappropriate assessment of the national jurisdictions, the Court proceeds to its own analysis of the risk [102].

Lastly, regarding the real risk of death or ill-treatment for the applicants, the Court analysed the parties’ submission and the information from the most recent international reports. The Applicants relied upon up to date and objective reports from international organisations demonstrating that attacks on civilians, arbitrary detentions and disappearances were occurring in Syria. On the contrary, the Government’s claim that the situation in Syria was stable was based on an obsolete report [104-106].

Since the Applicants haven’t been deported yet, the Court analyses the existence of a real risk on the basis of the information available at the moment of its judgement. The Court places a strong emphasis on the findings of the latest international reports which evidence the insecurity situation in Syria and recommend not to deport Syrian nationals since returnees face several forms of torture and ill-treatment [107-108]. Moreover, the personal circumstances of the Applicants increase their risk of being subject to ill-treatment. This results from the treatment given to returnees in Syria, as well as the harsh consequences that they can face if they decide to evade from the army. The risk is heightened, for one of the Applicants, due to the treatment faced by Kurds, and, for several of them, if they are perceived as being affiliated with the Government or with opposition groups [110]. The Court concludes that the expulsion of the Applicants would constitute a breach of Articles 2 and 3 ECHR because there is a real risk that they would be exposed to ill-treatment or death if they were to be returned [111].

2. Alleged violation of Article 13 ECHR

The Applicants’ allegation of their right to an effective remedy, under Article 13 ECHR, has already been considered under the assessment of Articles 2 and 3 ECHR [114].

3. Alleged violation of Article 5 § 1 ECHR

The Court analyses whether the continuing detention pending expulsion was justified. The first two Applicants had been detained for two years. The Court finds a violation of their right to liberty and security of person because the authorities didn’t take any action to establish whether the removal of the Applicants was foreseeable, after the Court’s interim measure to suspend their expulsion. Furthermore, the Applicants couldn’t challenge the reasons of their detention [124-127]. The second set of Applicants had been released once the detention period had expired, or as a result of the Court’s interim measures. The Court doesn’t find a breach of Article 5 § 1 ECHR since the national authorities had acted with due diligence, imposing a reasonable detention period that satisfied the purpose of the deprivation of liberty [128-131].

4. Alleged violation of Article 5 § 4 ECHR

The Court finds a violation of Article 5 § 4 ECHR, concerning two of the Applicants since they couldn’t obtain a revision, before a domestic court, of the reasons and lawfulness of their detention [138-140].

Outcome:

Violation of Articles 2 and 3 ECHR if the Applicants were to be deported to Syria.

No need to examine the complaint under Article 13 ECHR

Violation of  Article 5 § 1 ECHR in respect of M.D. and M.O. No violation in respect to M.A, A.A. and A.KA.

Violation of Article 5§ 4 ECHR in respect of M.D. and M.O. The complaint under Article § 4 ECHR in respect of A.A. and A.K.A. is out of scope of the examination.

Other sources:

UNHCR, “International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic” (3 November 2017 HCR/PC/SYR/17/01 (“Update V”).

UNHCR, “Comprehensive Protection and Solutions Strategy: Protection Thresholds and Parameters for Refugee Return to Syria”, February 2018.

Report of the Special Rapporteur at the 39th session of the UN Human Rights Council (October 2018, A/HRC/39/54/Add.2).

Centre for the Reconciliation of Opposing Sides and Refugee Migration Monitoring in the Syrian Arab Republic, website post (31 July 2019).

Centre for the Reconciliation of Opposing Sides and Refugee Migration Monitoring in the Syrian Arab Republic, 2017-2018 bulletin issues.

Letter issued by the Russian office of UNHCR on 30 August 2019.

UNHCR, “Country of Origin Note: Participation in Anti-Government Protests; Draft Evasion; Issuance and Application of Partial Amnesty Decrees; Residency in (Formerly) Opposition-Held Areas; Issuance of Passports Abroad; Return and ‘Settling One’s Status’” (7 May 2020).

Declaration following the “Brussels IV Conference” on “Supporting the Future of Syria and the Region”, co-chaired by the European Union and the United Nations (29-30 June 2020).

Findings in respect of Syria of the Independent International Commission of Inquiry on the Syrian Arab Republic, at the 45th session of UN Human Rights Council (14 September-2 October 2020, A/HRC/45/31).

UN Secretary General report on the implementation of its humanitarian resolutions by all parties to the conflict in Syria (14 October 2020, S/2020/1031).

Joint statement of the Joint Coordination Committees of the Russian Federation and the Syrian Arab Republic (25 November 2020)

UNHCR, “International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic” (March 2021, HCR/PC/SYR/2021/06 (“Update VI”)).

UN Secretary General report on the implementation of its humanitarian resolutions by all parties to the conflict in Syria (22 April 2021, S/2021/390)

Russian authorities’ communication to the Council of Europe Committee of Ministers (April 2018, Updated Action Plan, DH-DD(2018)412)