ECtHR - Mainov v. Russia

A stateless applicant born in the Tajikistan Soviet Socialist Republic of the Soviet Union, was arrested for homelessness in Russia. The District Court ruled that he had to be preventively detained until expulsion back to the Tajikistan Republic.  The Russian State tried to obtain travel documentation for the applicant, overlooking the fact that the applicant was not a national of that State and that Tajikistan had no legal obligation to admit him, resulting in his preventive detention for two years. The Court found a violation of Article 5, as the applicant’s detention was not carried out in good faith due to the lack of a realistic prospect of his expulsion and the domestic authorities’ failure to conduct the proceedings with due diligence.

Case status
Decided
Case number
11556/17
Citation
European Court of Human Rights, Mainov v. Russia [2018] (Application no. 11556/17), 15 May 2018
Date of decision
Court / UN Treaty Body
European Court of Human Rights
Language(s) the decision is available in
English
Applicant's country of birth
Tajikistan
Applicant's country of residence
Russian Federation
Relevant Legislative Provisions

European Convention of Human Rights, Article 3, 5 § 1 (f), and 41.

Facts

The stateless applicant was born in 1967 in the Tajikistan Soviet Socialist Republic of the Soviet Union and came to Russia in 1993. On 31 June 2014, the applicant was arrested for homelessness and was sentenced to a fine and administrative removal from Russia. The District Court directed that he should be preventively detained until expulsion to the Tajikistan Republic. The Federal Migration Service requested the Embassy of Tajikistan to issue a laissez-passer document enabling the applicant´s return to Tajikistan on 11 August 2014 and on 18 November 2014 but got no reply. This was attempted again the on 11 February 2015 and 10 September 2015, with no success. On 28 July 2016, the governor of the detention centre asked the District Court to discontinue the enforcement of the judgement on the ground that the two-year limitation period in respect of the applicant’s offence had expired. On 29 July 2016, the District Court approved the application, and the applicant was released on 13 August 2016.  After his release, the applicant complained about the living conditions during his detention, including dim lightning, poor quality of food, insufficient outdoor exercise in camped conditions, a lack of medical assistance and shortage of meaningful activities. He was detained in several different cells, from standard six-persons cells, smaller and larger cells, as well as a so-called “closed cell” during his detention. He claimed there had been a violation of Article 3 and 5 § 1 of the Convention.

Decision & Reasoning

Article 3:

The Court stated that, for the purpose of calculating the six-month time-limit on detention, the detention should be regarded as a “continuing situation” if it has been affected in substantially similar conditions. However, due to the applicant’s frequent change in detention cells, the court did not find his situation to be a “continuous situation”.

Article 5:

The Court found that the applicant’s detention was not carried out in good faith due to the lack of a realistic prospect of his expulsion and the domestic authorities’ failure to conduct the proceedings with due diligence.

The Court noted that the applicant remained in preventive detention pending the enforcement of the removal order for more than two years, and that the only measure the Russian authorities took was to send several letters to the Embassy of Tajikistan, seeking a laissez-passer document for the applicant to have the ability to travel. They followed the established procedure disregarding the fact that the applicant was not a national of that State and that Tajikistan had no legal obligation to admit him in the country. The Court reiterated that the applicant’s detention did not affect his realistic prospect of removal because he was not a national of the State to which the authorities sought to remove him.

Outcome

The Court found the complaint relating to the applicant’s detention pending removal admissible. The Court found a violation of Article 5 § 1 of the Convention. The Court dismissed the applicant’s claim under Article 3 of the Convention.

Caselaw cited

Kim v. Russia, [2014], no. 44260/13.

Ananyev and Others v. Russia, [2012], nos. 42525/07 and 60800/08.

Fetisov and Others v. Russia, [2014], no. 42119/04.

Zakharkin v. Russia, [2010], no. 1555/04.

Khlaifia and Others v. Italy, [GC] [2016], no. 16483/12.

Mskhiladze v. Russia, [2018], no. 47741/16.

M.S.A. and Others v. Russia, [2017], no. 29957/14

A. and Others v. the United Kingdom, [GC] [2009], no. 3455/05.

Chkhikvishvili v. Russia, [2013], no. 43348/13.