ECtHR - M.K. v. Russia, Application no. 35346/16, 27 February 2018
| Country of applicant: | Syria |
| Court name: | The European Court of Human Rights (Third Section) |
| Date of decision: | 27-02-2018 |
| Citation: | Application no. 35346/16 |
Keywords:
| Keywords |
|
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." |
|
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.” |
|
Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
|
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. |
Headnote:
The Court indicated interim measures (under Rule 39) to Russia after the order of removal of a Syrian national who applied for asylum after the expiry of his student visa. Subsequently, the applicant applied to the Court against the Russian Federation claiming that Russia had breached his rights under Articles 2, 3, 5(1)(f) and 5(4) of the Convention.
Facts:
The applicant is a Syrian national who arrived with a study visa in Russia on 24 April 2015 and applied for asylum after his study visa expired based on the risk of his life and safety in the light of the on-going conflict in Syria.
His application was denied by the migration authorities, and he was placed in detention pursuant the Oktyabrskiy District Court of Izhevsk’s expulsion order on 9 June 2016 which was upheld by the Supreme Court of the Udmurtiya Republic on the following day.
On 19 January 2017, the judgment was amended by the Court of the Russian Federation following the intervention of the ECtHR on 22 June 2016 under the Rule 39 (interim measures) to the Government, since the removal of the applicant to Syria would entail a risk to his life.
On 20 January 2017 the applicant left Russia for Lebanon.
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 for in Articles 2 and 3 of the Convention. Furthermore, he also raised complaints under Article 5 of the Convention, that his detention pending expulsion proceedings had been arbitrary and prolonged, and that he had not had access to an effective judicial review of his detention
Decision & reasoning:
- ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
The Court dismissed the examination of the application under Article 2 and 3 of the Convention and the closely linked complaints under Article 13 of the Convention since the applicant left Russia for a safe third country and had settled there.
- ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The Court declared the claim admissible and noted that the applicant was detained pending his expulsion for the period of approximately six months until the applicant’s voluntary departure from Russia. It also noted that the possibility of enforcement of his expulsion was reviewed on a monthly basis by the domestic courts. Also, the Court considered that there was no evidence indicating any arbitrariness in respect of the applicant’s detention or, more particularly, bad faith, deception or unjustified delays in respect of the authorities’ conduct. Furthermore, the Court noted, that given the swiftness of the national proceedings and monthly review of the possibility of enforcement of his expulsion by the domestic courts together with the relatively short period of detention, the applicant’s individual situation was devoid of the deficiencies alleged. Therefore, the Court found that there had been no violation of the applicant’ rights under Article 5(1)(f) and 5(4) of the Convention.
Outcome:
The Court decided to strike the application out of its list of cases concerning complaints under Articles 2 and 3 of the Convention and ruled that there has been no violation of Article 5 of the Convention.
Observations/comments:
This case summary was written by Fanni Bunevacz.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Čonka v Belgium, Application no. 51564/99, 5 February 2002 |
| ECtHR – L.M. and Others v. Russia, Applications Nos. 40081/14, 40088/14 and 40127/14, 15 October 2015 |
| ECtHR - S.K. v. Russia, Application no. 52722/15, 14 February 2017 |
| ECtHR - Rakhmonov v. Russia (dec.), no. 11673/15 |