ECtHR - M.S.A. and Others v. Russia, Applications No. 29957/14, 29961/14, 53980/15, 10583/16, 10796/16, 10803/16, 19980/16, 35675/16 and 38237/16, 12 December 2017

Facts:

Between the years 2012 and 2016 the applicants went to Russia on various visas and did not leave when their visas expired. Due to this, the applicants were apprehended in various regions of Russia and placed in detention centres.

Between 24 January 2014 and 10 June 2014, M.S.A and R.K were detained in a detention centre for foreign nationals in Krasnoye Selo, in the Leningrad Region. The conditions of the centre were severe, as it was designed to accommodate 176 people in total and till 2014 it accommodated 400 people, there was no access to drinking water or food in good conditions.

Russian domestic courts in the respective regions examined their cases and found the applicants guilty of breaching various immigration regulations. Considering this, some of the applicants lodged appeals, but they were rejected, whereas other applicants, such as N.K. had their expulsion orders quashed by the appeal courts. In another case, one of the applicants did not appeal against his expulsion order.

While the applicants were being judged for the breach of the Russian immigration regulation, they filled their asylum application. However, during the process some of the applicants withdrew their requests and others’ applications were rejected by the immigration authority and by the domestic courts, which are in charge of examining appeals. Only the application of Y.A. was approved.

Considering this, the applicants submitted their case to the ECtHR, which admitted the cases. Following this, the ECtHR decided to join the applications, given their similar factual and legal background and imposed an interim measure in order to stop the expulsion of the applicants. Russia was informed of these decisions between March 2015 and September 2016. 

However, while the proceedings before the ECtHR were ongoing, six of the applicants (M.S.A., R.K., H.R., B.Z., S.W. and A.A) left Russia of their own will in order to go to third countries, where they settled.

In spite of the settlement in another contracting state, the applicants mentioned above maintained contact with their lawyers and continued to be interested in pursuing their applications.

Regarding the application of N.K., on January 2017 the court quashed the order for their removal and ordered their release. After their release, N.K and his family applied for asylum in Russia.

Decision & reasoning:

Russia’s request to strike out the applications

Regarding the applicants that left Russia, the Russian Government requested that their applications be struck out as they had not confirmed their intention to pursue their applications.

In the case of M.S.A and R.K., Russia argued that they left Russia and went to Germany, therefore they were no longer exposed to a risk of death or ill-treatment. On the other hand, in case of N.K, as his removal order was quashed by Russian Courts and his asylum application was being reviewed, the Russian Government argued that his application should also be struck out.

Considering this, the mentioned applicants were no longer at risk of being expelled and subjected to death/ torture or ill treatment if they were returned to Syria. Therefore, the ECtHR considered that it was no longer justified to continue the examination of the above applications as regards the breach of Articles 2 and 3 ECHR in respect of return to Syria.

Alleged violation of Articles 2 and 3 ECHR (Applicants H.D and Y.A)

H.D.’s application

H.D was living and working in Russia irregularly since 1 September 2013 and he had not taken any steps to legalise his status in the country until September 2015 when his lawyer submitted his temporary asylum application and his refugee status proceedings. Regarding the removal decision, he did not appeal such decision even though his right to appeal was explicitly noted. Due to this situation, Russia argues that his application should be dismissed for non-exhaustion of domestic remedies before submitting his application to the ECtHR.

H.D. argued that he was not able to appeal the removal decision due to the fact he did not know Russian and he is not familiar with Russian legislation and he did not have the means to retain a lawyer. Moreover, during the process the Russian government did not provide him with an interpreter, even though the text of the removal decision stated otherwise.

Regarding the expulsion proceedings, the court noted that the applicant participated in two expulsion hearings, firstly using his brother’s name and then his own. In both hearings he was provided with interpreters. In the processes followed against him the Court issued an expulsion order which was not appealed, even though H.D. had even the chance to request an extension of the limit for submitting an appeal. Therefore, as the ECtHR does not have elements to doubt the provision of the interpreters and that H.D. did not provide any explanation for not submitting an appeal against the expulsion decision, the ECtHR considers that H.D. did not exhaust the domestic remedies and his application should be rejected.

Y.A.’s application

On 24 June 2016, while the application before ECtHR was being reviewed, Russia granted Y.A. a temporary asylum status valid until 24 June 2017 and his removal from Russia was prohibited. Therefore, considering Y.A. no longer faces an imminent risk of removal to Syria and the factual and legal circumstances of his complaint are no longer valid, his application was rejected.

Alleged violation of Article 3 ECHR (M.S.A. and R.K.)

M.S.A. and R.K complained that the conditions of their detention had been incompatible with Article 3 ECHR due to the conditions of the detention centre. On the other hand, Russia argued that the detention centre was in full compliance with the domestic standards regulating such centres.

The ECtHR noted that they have been receiving complaints concerning the conditions of Krasnoye Selo detention centre since 2011 and in such cases the ECtHR established that the conditions of the centre were in breach of Article 3 ECHR. 

Moreover, considering the information submitted by M.S.A and R.K. and the fact that Russia has not presented any argument persuading the ECtHR to reach a different conclusion, the ECtHR considers that M.S.A and R.K were subject to inhuman and degrading treatment against Article 3 ECHR.

Alleged violation of article 5 ECHR

The applicants complained that their detention was arbitrary, that the detention had been prolonged and that they did not have access to an effective judicial review of their detention.

Russia argued that the detention pending expulsion was lawful, ordered by court and that the time limit in a detention centre for administrative penalties was two years.

ECtHR determined that all the applicants were detained for breaching immigration regulations with a view to being expelled and their detention was presumably carried out in good faith. However, in certain cases the detention lasted more than two years and for some applicants it is still continuing, a situation that violates Article 5 § 1 (f) ECHR. Therefore, according to the ECtHR’s view and given its findings of recurrent violations of Article 5 ECHR in respect of foreigners detained in Russia the length of detention in all of the applicant’s cases, except of N.K and A.A (they were detained only for 3 months) exceeded what was reasonably required for the purpose pursued. Furthermore, it does not appear that the applicants had access to judicial and periodic reviews of their detention.

Outcome:

The ECtHR unanimously agreed that:

- There has been a violation of Article 3 ECHR on account of the conditions of detention of M.S.A and R.K.

- There has been a violation of Article 5 §§ 1 (f) and 4 ECHR in respect of M.S.A., R.K., H.R., B.Z., H.D., and S.W., but no violation in respect of N.K. and the members of N.K.’s family and A.A;

- Russia must ensure the immediate release of H.D.;

- ECtHR ordered Russia to pay the applicants the following amounts in respect of non-pecuniary damage:

• EUR 9,750 (Nine Thousand Seven Hundred and Fifty and 00/100 EUROS) each to M.S.A and R.K
• EUR 7,500 (Seven Thousand Five Hundred and 00/100 Euros) each to H.R., B.Z., H.D. and S.W.Additionally, ECtHR ordered Russia to pay the applicants the following amount in respect of costs and expenses:
•  EUR 200 (Two Hundred and 00/100 Euros) each to M.S.A and R.K

Observations/comments:

This case summary was written by Oscar Pajuelo, LLM student at Queen Mary University.