Russia - Constitutional Court, N.G.Mskhiladze, on the constitutionality of art. 31.7 and 31.9 of the Administrative Code

The applicant was born in Georgia and moved to Leningrad before the breakup of the Soviet Union, where he was educated and got married. He was never able to exchange his Soviet passport for a Russian passport, was ordered to be expelled while the expulsion was not possible due to his statelessness. His attorney has repeatedly appealed the deportation ruling but in vain.

The decision changed judicial practice and provided a legal ground for the release of stateless persons from detention, even though the amendments to the legislation ordered by the Constitutional Court are still pending (as of May 2021).

Case name (in original language)
Дело о проверке конституционности положений статей 31.7 и 31.9 Кодекса Российской Федерации об административных правонарушениях в связи с жалобой лица без гражданства Н.Г. Мсхиладзе
Case status
Decided
Case number
Decision #14Пб 23.05.2017
Date of decision
Court / UN Treaty Body
Constitutional Court of the Russian Federation (Конституционный суд Российской Федераци)
Language(s) the decision is available in
Russian
Applicant's country of birth
Georgia
Applicant's country of residence
Russian Federation
Relevant Legislative Provisions

Art.31.7 and 31.9 of the Administrative Code of the Russian Federation

Facts

Noé Mskhiladze was born in Georgia in 1972. He moved to Leningrad before the breakup of the Soviet Union, where he was educated and got married. He has not left Russia since 1990. Mskhiladze was never able to exchange his Soviet passport for a Russian passport, even though he tried to resolve his status multiple times. Georgia never confirmed his citizenship. The first time Mskhiladze was in a SITDFN (specialised institution for the temporary detention of foreign nationals), he spent six months there (from 10 March 2015 to 30 August 2015): after Mskhiladze served his sentence for a criminal offense, the Ministry of Justice issued a directive on the undesirability of his stay in the RF, and a court issued a ruling to deport him and placed him in a STIDFN until the enforcement of this ruling. The second time Mskhiladze found himself in a SITDFN was in accordance with a ruling of Saint Petersburg’s Kirov District Court: on 15 December 2015, the court found him guilty of violating the regime of stay in Russia (art. 18.8.1 of the RF Code of Administrative Offenses) and imposed a punishment in the form of a fine and expulsion, with confinement in a SITDFN until expulsion. Mskhiladze remains in that SITDFN to this day. His attorney has repeatedly appealed the deportation ruling, but higher courts have refused to reverse the ruling and release Mskhiladze from the SITDFN. Court bailiffs, who could not enforce the applicant’s deportation, also applied to the court, but their appeal was also denied.

Decision & Reasoning

“Federal legislators should amend the Code of Administrative Offences so that it ensures reasonable judicial control over the timeframes of the detention of stateless persons subject to forced expulsion in specialised institutions."

“Legislators may stipulate in the Code of Administrative Offences that judges must establish specific timeframes for the application of this security measure (by analogy with current migration law) and enshrine the special migration status of stateless persons released from specialised institutions, which makes it possible to monitor them until the expiration of the statute of limitations of the ruling on administrative expulsion.”

“Until the amendments envisaged by the RF Constitutional Court have been made to RF laws and in the absence of the actual ability to expel them, persons placed in a specialised institution must be granted the right to apply to a court to check the legality of their further deprivation (restriction) of freedom upon the expiry of three months from the day the court decision on expulsion was adopted. Enforcement decisions in the case of the claimant shall be subject to review.”

Outcome

Violation.

The decision changed judicial practice and provided a legal ground for the release of stateless persons from detention, even though the amendments to the legislation ordered by the Constitutional Court are still pending (as of May 2021).