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.
European Convention of Human Rights, Article 3, 5 § 1 (f), and 41.
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.
The applicant complained that the conditions of his detention had been in breach of Article 3 of the Convention. His complaints were particularly in regard to the “closed-cell”, in which he stayed from February to September 2015. The steel door with a peephole and a hatch for serving food remained under lock at all times and he was not allowed to leave the cell, except for short and infrequent outdoor exercise. For the first two months, he had been alone in that cell. Moreover, he argued that the six-person cells suffered from severe overcrowding.
The applicant complained under Article 5 § 1 (f) of the Convention that the Russian authorities had not pursued the removal proceedings in good faith. This was due to the fact that they had been aware that his removal had not been a realistic possibility, because he was not a national of the State to which the authorities sought to remove him.
The Government submitted a summary of decisions taken in the removal proceedings and denied that there was a breach of Article 5 § 1 of the Convention. The Government did not explain what the legal basis for his detention had been.
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”.
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.
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.
Kim v. Russia, , no. 44260/13.
Ananyev and Others v. Russia, , nos. 42525/07 and 60800/08.
Fetisov and Others v. Russia, , no. 42119/04.
Zakharkin v. Russia, , no. 1555/04.
Khlaifia and Others v. Italy, [GC] , no. 16483/12.
Mskhiladze v. Russia, , no. 47741/16.
M.S.A. and Others v. Russia, , no. 29957/14
A. and Others v. the United Kingdom, [GC] , no. 3455/05.
Chkhikvishvili v. Russia, , no. 43348/13.