Deprivation of liberty / Restriction on the freedom of movement
RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW 97. Section 6 of the Federal Law on Exit from and Entry into the Territory of the Russian Federation (FZ-114 of 15 August 1996, with amendments), in so far as relevant, reads as follows: “Upon arrival in and departure from the Russian Federation, foreign nationals or stateless persons are obliged to present valid documents confirming their identity and [which are] accepted as such by the Russian Federation, and a visa, unless this Federal Law, or a treaty concluded by the Russian Federation, or decrees by the President of the Russian Federation, provide otherwise.” 98. Section 14 of the State Border of the Russian Federation Act (FZ ‑ 4730-1 of 1 April 1993, with amendments), in so far as relevant, reads as follows: “Foreign nationals and stateless persons who do not possess the status of a person living or residing in the Russian Federation and who have crossed the State border [upon arrival] from the territory of a foreign State shall be [held responsible], in accordance with the Russian law, if there are indications that their actions [constitute] a criminal or administrative offence. Where there are no grounds for instituting criminal or administrative proceedings against ... violators of the State border, and if they do not enjoy the right to political asylum, ... the border authorities shall officially transfer them upon arrival to the authorities of the State from ... which they have crossed the [Russian] State border. If their transfer to the authorities of the foreign State is not envisioned by a treaty between the Russian Federation and that State, the border authorities shall deport them [to places] outside the territory of the Russian Federation ... designated by the border authorities.” 99. Section 4 of the Refugees Act provides, in so far as relevant, as follows: “1. An adult who has expressed a wish to be recognised as refugee shall lodge a written application, either in person or through a representative: ... 1 (2) with the Border Guard Service [the BGS] of the Federal Security Service ... at the border crossing point of the Russian Federation at the time when that person crosses the border ... ... 3. An application lodged with the Border Guard Service at the border crossing point ... shall be transmitted by [the BGS] to the ... migration authority ... within three days of the date of its being lodged. ... 5 (2) An application made by a person who is at a border crossing point ... shall be preliminarily examined by ... the migration authority ... within five days of the date of its receipt. ... 6. A decision to issue a certificate [to confirm the examination of an application for refugee status on the merits (“certificate”)] shall be taken ... by the migration authority. A decision to issue a certificate shall serve as grounds for recognising the person’s ... rights and for imposing obligations on him or her ... 7. Within twenty-four hours of that decision ... the migration authority ... shall send the certificate to the person or serve it on him or her ... The certificate is a document [that serves to identify] a person who has applied for refugee status. ... The certificate also serves as grounds for a person ... to receive a document authorising his placement in a temporary accommodation centre.” 100. Section 6 of the Refugees Act reads, in so far as relevant, as follows: “1. The person in receipt of the certificate ... has a right: 1 (1) to the services of a translator and an interpreter and to information on the procedure for the granting of refugee status; ... 1 (3) to receive a lump-sum allowance ... 1 (4) to receive from ... the migration authority a document authorising his or her placement in a temporary accommodation centre; ... 1 (6) to receive food and communal services at the temporary accommodation centre ... 1 (7) to receive medical and pharmacological aid ...” INTERNATIONAL LAW The 1951 United Nations Convention Relating to the Status of Refugees 101. Article 31 of the 1951 Convention reads as follows: “1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.” 102. Article 33 of the 1951 Convention provides: “1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” COMPARATIVE-LAW MATERIALS 103. According to the survey of the situation of asylum-seekers confined to a transit zone on the territory of a State pending the outcome of asylum proceedings in thirty-four Contracting Parties to the Convention made available to the Court, in seven of the thirty-four member States surveyed, namely the Czech Republic, France, Lithuania, Montenegro, the Netherlands, Portugal and Ukraine, the stay in a transit zone of persons who have applied for international protection is regarded under national law as a deprivation of liberty, whereas under the national law of eighteen of the thirty-four Contracting Parties, namely Albania, Austria, Azerbaijan, Bulgaria, Croatia, Estonia, Finland, Georgia, Germany, Greece, North Macedonia, Republic of Moldova, Poland, Romania, Serbia, Slovenia, Spain and the United Kingdom (England and Wales), such stay is not regarded as a deprivation of liberty. 104. In nine of the thirty-four Contracting Parties, namely Armenia, Belgium, Iceland, Liechtenstein, Luxembourg, Norway, San Marino, Slovakia and Sweden, there are no transit zones in either legal or practical terms in which asylum-seekers are confined pending the outcome of their asylum proceedings. 105. Twelve of the thirty-four Contracting Parties, namely Austria, Croatia, Czech Republic, France, Georgia, Greece, Lithuania, Montenegro, Netherlands, Portugal, Romania and Spain, have in place legal provisions and procedures specifically applicable to persons who have applied for international protection while in a transit zone at an airport or at a land or sea border point. THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 106. The applicants complained that their confinement in the transit zone of Sheremetyevo Airport had amounted to an unlawful deprivation of liberty, in breach of Article 5 § 1 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” The Chamber judgment 107. The Chamber declared the complaint under Article 5 § 1 admissible and found that the applicants’ confinement in the transit zone of Sheremetyevo Airport had amounted to a de facto deprivation of liberty. 108. The Chamber further examined the issue of lawfulness of the applicants’ de facto deprivation of liberty. In the absence of any reference by the Government to any domestic legal provision capable of serving as a legal basis, the Chamber considered that the applicants’ lengthy confinement in the transit zone of Sheremetyevo Airport had not had any legal basis in the domestic law, in breach of the requirement of Article 5 § 1 of the Convention, and found a violation of that provision. The parties’ submissionsThe applicants The applicants The applicants 109. The applicants submitted that while in the airport transit zone they had been in the situation of asylum-seekers whose applications had not yet been considered. They had not had the option of entering a State other than the one they had fled and had been under the jurisdiction of Russia. During their lengthy stay in the airport transit zone they had been unable to enter Russian territory or receive visits from doctors and notaries; access to them by their lawyers had been conditional and occasionally denied; and the BGS had seized their passports. Accordingly, the applicants had not chosen to stay in the transit zone and thus could not be said to have validly consented to being deprived of their liberty. They concluded that their confinement in the transit zone had amounted to a de facto deprivation of liberty. 110. Regarding the compatibility of their de facto deprivation of liberty with Article 5 § 1, the applicants submitted that there had been no court or other official decision authorising their respective detention. In the absence of any legal procedure to assess the lawfulness or duration of their detention, the applicants had been “in a legal vacuum.” They concluded that their lengthy confinement in the airport transit zone for an indefinite and unforeseeable period in the absence of a specific legal provision justifying it and of judicial authorisation or review had not had any basis in domestic law, in breach of Article 5 § 1. 111. The applicants submitted that the subject of their complaint before the Court was not the Russian authorities’ refusal to grant them asylum. The thrust of their respective applications was “that their rights [had been] violated by the absence of legal regulations and by the authorities’ violation of the regulations that should have applied and their complete lack of consideration or intention to preserve human dignity.” 112. The applicants stated that they had lodged applications for refugee status and temporary asylum in compliance with Russian domestic law despite the lack of information about the procedure available in the airport transit zone and the fact that the BGS officers had only spoken Russian. The Russian authorities’ failure to treat the applicants as asylum-seekers and to provide them with examination certificates had deprived them of the opportunity to enjoy the rights guaranteed by the Refugees Act. The Government 113. The Government insisted that it was “vital to draw a distinction between genuine refugees and migrants”, the latter being persons moving to a third country for mainly economic reasons. In the Government’s view, the applicants had not met the refugee criteria laid down by the Geneva Convention as they had not arrived in Russia directly from the countries of the alleged risk, had not chosen it as a first safe country for the purposes of claiming asylum, had not applied for asylum in Russia immediately upon arrival there, and had not sought asylum in other countries beforehand. In the course of interviews by the Russian migration authorities, the applicants had not substantiated their allegations that their lives were endangered in the countries of origin but had referred to a poor economic situation. Allegations of possible risks had been raised only after the applicants had been put in contact with lawyers specialising in asylum cases. Accordingly, the applicants were not “genuine asylum-seekers” but “ordinary migrants” whose asylum applications had been “artificially created and had little prospects of success.” 114. The Government submitted that they should not be deemed responsible for difficulties that had been the result of the applicants’ own choices. The Court’s position in asylum-seekers’ cases encouraged migrants “to abuse the right to asylum”. 115. The Government insisted that a person under a State’s jurisdiction was not necessarily “at the hands of the authorities” and further stated that the applicants should have been well aware of the fact that they had not had the requisite documents and had not had valid grounds to enter Russia. By deliberately attempting to enter Russia without valid visas and grounds on which to be regarded as refugees, the applicants had breached Russian law and had validly consented to be deprived of their liberty. The fact that the Russian authorities had examined the applicants’ asylum applications did not mean they had had to stay in the airport transit zone as the prospects of success of those applications had been slim. They also referred to the margin of appreciation that States enjoyed in granting asylum. They concluded that Article 5 was inapplicable in the present case. 116. The Government further referred to a State’s “inherent sovereign right to control the entry and residence of aliens on its territory” and submitted that the applicants’ passports had not been seized. The applicants had not been subject to expulsion, deportation or extradition proceedings; therefore, there had been no deprivation of liberty as the applicants had been free to leave Russia at any time and eventually had done so. 117. They further submitted that if a State prohibited an alien from entering its territory, he or she was forced to leave the State. Should an applicant meeting the asylum-seeker criteria laid down by the Geneva Convention be forced to return to a country where he had been persecuted, an issue under Article 3 of the Convention could arise, but only if a relevant complaint was raised by that applicant. 118. The Government further argued that the Court had “invented” a new right under the Convention – which did not guarantee a right to asylum – imposing an obligation on States to allow anyone claiming to be an asylum-seeker to enter its territory unimpeded. They concluded that there had been no violation of Article 5 § 1 in the present case. Third-party intervenersThe UNHCR The UNHCR The UNHCR 119. The UNHCR, in their submissions, addressed the Russian domestic legal framework and practice applicable to the treatment of asylum-seekers in transit zones of airports in the Russian Federation and provided its interpretation of the relevant principles of international law. 120. Russian law did not contain any provisions addressing the grounds for or duration of stays in border areas and in transit zones or stipulating procedural safeguards for asylum-seekers at the borders; nor did it provide for the possibility of judicial review in respect of the situation of those stranded in a transit zone. The conditions of stay in airport transit zones were not regulated by domestic law. Russian law did not place responsibility on any State authority for ensuring minimum basic care for asylum-seekers in transit zones. 121. Migration authorities had no staff in transit zones, which were under the full control of the BGS. The BGS did not make decisions to keep a person in the transit zone; rather, they simply did not allow the person to pass through passport control. They could also refuse, without giving reasons, to accept asylum applications. Asylum ‑ seekers in airport transit zones were deprived of the minimum rights guaranteed by the Refugees Act as they remained in legal limbo even after being issued with an examination certificate. They could not effectively exercise their right to appeal against a rejection at first instance of their application for refugee status. 122. Asylum-seekers stranded in transit zones were deprived of access to fresh air, privacy, food, and access to medical and social care. The period for which an asylum-seeker had to undergo such a dire lack of basic facilities could be prolonged as on average the complete asylum procedure, including appeals, could last between one and two years. 123. The UNHCR stated that, where applied, the detention of asylum ‑ seekers should be justified under the principles of necessity, reasonableness and proportionality, and should be subject to a series of important procedural safeguards – all of which were absent in the context of persons held in airport transit zones in the Russian Federation. The Government of Hungary 124. The Government of Hungary argued before the Grand Chamber that there was no “right to asylum-shopping” (that is, the right to choose a country in which to seek asylum) under current international law despite the fact that the UNHCR and “other organisations promoting refugee rights” advocated it. 125. According to the Government of Hungary, there was no right to be granted asylum. Article 14 of the Universal Declaration of Human Rights guaranteed the right to enjoy asylum; Article 12 § 2 of the International Covenant on Civil and Political Rights and Article 2 § 2 of Protocol No. 4 to the Convention proclaimed the right to leave one’s own country. Yet no right to admission to a country for the purposes of seeking asylum was recognised in international law. Asylum-shopping benefitted international organised crime and escalated the European “migration crisis.” The Convention did not “confer a right of admission to the territory and thus the full jurisdiction of the State”. The threshold for the application of Articles 3 and 5 and their standards left “ample room for interpretation in the light of Article 1 of the Convention.” The Court’s assessmentPreliminary considerations Preliminary considerations Preliminary considerations (a) The scope of the case 126. The Court takes note of the concerns expressed by the Russian and Hungarian Governments in their submissions and agrees that the present case must be seen in the context of the practical, administrative, budgetary and legal challenges that the member States face as a consequence of the influx of refugees and immigrants. However, contrary to the Russian and Hungarian Governments’ submissions before the Grand Chamber, in the Court’s view this case has little to do with the issue of whether a right to asylum as such or a right to asylum ‑ shopping exist under current international law. 127. The thrust of the Chamber’s findings was not the fact that none of the applicants had been granted asylum in Russia but the absence of a legal basis for their lengthy confinement in the airport transit area and the failure to take care of their essential needs pending the examination of their asylum applications. The Court would reiterate that the Convention has been created to set minimum standards. The right to have one’s liberty restricted only in accordance with the law and the right to humane conditions, if detained under State control, are minimum guarantees that should be available to those under the jurisdiction of all member States, despite the mounting “migration crisis” in Europe. 128. Accordingly, the Court’s task in the present case is to verify the respondent Government’s compliance with these Convention obligations. (b) Article 1 of the Convention 129. The first issue to be addressed is whether the applicants fell within Russian jurisdiction within the meaning of Article 1 of the Convention. The Court notes in this connection that during the events at issue the applicants were physically present on the territory of Russia and found themselves under the control of the Russian authorities. 130. The Court reiterates that an airport, including an international airport, located on the territory of a State is legally part of the territory of that State (see Amuur v. France, 25 June 1996, §§ 41 and 43-45, Reports of Judgments and Decisions 1996 ‑ III; Shamsa v. Poland, nos. 45355/99 and 45357/99, § 45, 27 November 2003; Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 68, 24 January 2008; Rashed v. the Czech Republic, no. 298/07, § 70, 27 November 2008; and Abou Amer v. Romania, no. 14521/03, § 39, 24 May 2011). 131. It is noteworthy that the Russian Government did not deny before the Grand Chamber that the transit zone of Sheremetyevo Airport was part of Russian territory; nor did they dispute that the applicants were under the control of the authorities throughout the relevant period (see paragraph 115 above). 132. The Court concludes that the applicants were within the jurisdiction of Russia during the events of the present case. Article 5 § 1 (a) Applicability of Article 5 § 1 (i) General principles 133. In proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4. Although the process of classification into one or other of these categories sometimes proves to be no easy task, in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 64, 15 December 2016, with further references). 134. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation in reality and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012, and Gahramanov v. Azerbaijan (dec.), no. 26291/06, § 40, 15 October 2013). The difference between deprivation and restriction of liberty is one of degree or intensity and not one of nature or substance (see De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017, with further references; see also Kasparov v. Russia, no. 53659/07, § 36, 11 October 2016). 135. The Court considers that in drawing the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of asylum-seekers, its approach should be practical and realistic, having regard to the present-day conditions and challenges. It is important in particular to recognise the States’ right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration. 136. The question whether staying at airport international zones amounts to deprivation of liberty has been dealt with in a number of cases (see, among those: Amuur, cited above, § 43; Shamsa, cited above, § 47; Mogoş v. Romania (dec.), no. 20420/02, 6 May 2004; Mahdid and Haddar v. Austria (dec.), no. 74762/01, ECHR 2005-XIII (extracts); Riad and Idiab, cited above, § 68; Nolan and K. v. Russia, no. 2512/04, §§ 93-96, 12 February 2009; and Gahramanov, cited above, §§ 35-47). 137. The Court stated the following in the case of Amuur, at § 43: “Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions. Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty - inevitable with a view to organising the practical details of the alien’s repatriation or, where he has requested asylum, while his application for leave to enter the territory for that purpose is considered - into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country. Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for determining refugee status.” 138. In determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in airport transit zones and reception centres for the identification and registration of migrants, the factors taken into consideration by the Court may be summarised as follows: i) the applicants’ individual situation and their choices, ii) the applicable legal regime of the respective country and its purpose, iii) the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events, and iv) the nature and degree of the actual restrictions imposed on or experienced by the applicants (see the cases cited in the preceding three paragraphs). 139. The Court considers that the factors outlined above are also relevant, mutatis mutandis, in the present case. (ii) Application of those principles α ) The applicants’ individual situation and choices 140. The Court observes that all four applicants entered the airport involuntarily, but without any involvement of the Russian authorities, either because they had been denied entry into the country they wanted to go to or because they had been deported to Russia. Compelled by the circumstances, they all decided to seek asylum in Russia. While this fact in itself does not exclude the possibility of the applicants finding themselves in a situation of de facto deprivation of liberty after having entered, the Court considers that it is a relevant consideration, to be looked at in the light of all other circumstances of the case. 141. It is true that in a number of cases the Court stated that detention might violate Article 5 of the Convention even though the person concerned had agreed to it and emphasised that the right to liberty is too important for a person to lose the benefit of the protection of the Convention for the single reason that he gave himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12; I.I. v. Bulgaria, no. 44082/98, §§ 84-87, 9 June 2005; Osypenko v. Ukraine, no. 4634/04, § 48, 9 November 2010; Venskutė v. Lithuania, no. 10645/08, § 72, 11 December 2012; and Buzadji v. Moldova [GC], no. 23755/07, §§ 106-10, 5 July 2016). Those cases, however, concerned situations where the law provided for deprivation of liberty or situations where the applicants had complied with an obligation, such as, among others, to enter a prison or a police station or submit to house arrest. The circumstances are not the same, in the Court’s view, where the applicants – as in the present case – had no relevant prior link to the State concerned and no obligation to which they acquiesced but requested admission to that State’s territory of their own initiative and sought asylum there. In such cases the starting point regarding the applicants’ individual position vis-à-vis the authorities is entirely different. 142. In the present case, having regard to the known facts about the applicants and their respective journeys and, notably, the fact that they did not arrive in Russia because of a direct and immediate danger for their life or health but rather due to specific circumstances of their travel routes, there is no doubt that they entered the Sheremetyevo airport involuntarily, but without the Russian authorities being involved. It is therefore clear that, at all events, the Russian authorities were entitled to do the necessary verifications and examine their claims before deciding whether or not to admit them. β ) The applicable legal regime, its purpose and the relevant duration in the light of that purpose and the attendant procedural protection 143. Second, it is also relevant that the rationale and purpose of the domestic legal regime applicable to the Sheremetyevo airport transit zone was to put in place a waiting area while the authorities decided whether to formally admit the asylum-seekers to Russia (see paragraphs 99 and 100 above). Albeit not decisive in itself, it is relevant to note that the Russian authorities did not seek to deprive the applicants of their liberty and that they denied them entry at once (see paragraphs 14, 20, 29 and 39 above). The applicants remained in the transit zone essentially because they awaited the outcome of their asylum proceedings (see paragraphs 46-96 above). 144. The right of States to control the entry of foreigners into their territory necessarily implies that admission authorisation may be conditional on compliance with relevant requirements. Therefore, absent other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter cannot be described as deprivation of liberty imputable to the State, since in such cases the State authorities have undertaken vis-à-vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications (see, mutatis mutandis, Gahramanov, cited above, §§ 35-47; see also Mahdid and Haddar, cited above, where the applicants’ asylum requests were dismissed in an airport transit zone within three days and the Court found that there had been no deprivation of liberty (taking into consideration additional factors, such as that the applicants were not under constant police control). 145. It is further relevant whether, in line with the purpose of the applicable legal regime, procedural guarantees concerning the processing of the applicants’ asylum claims and domestic provisions fixing the maximum duration of their stay in the transit zone existed and whether they were applied in the present case. 146. On the facts, the Court notes that the respondent Government were unable to point at any domestic provisions fixing the maximum duration of the applicants’ stay in the transit zone and that furthermore in disregard of the Russian domestic rules granting every asylum-seeker the right to be issued with an examination certificate and to be placed in temporary accommodation facilities pending examination of the asylum application (see paragraphs 99 and 100 above; compare Riad and Idiab, cited above, § 101), the applicants were essentially left to their own devices in the transit zone. The Russian authorities did not acknowledge that they were in any manner responsible for the applicants, thereby leaving the latter in a legal limbo without any possibility of challenging the measures restricting their liberty (see paragraph 44 above). While in the transit zone, all four applicants had little information regarding the outcome of their respective applications for refugee status and temporary asylum (see paragraphs 41-44 above). 147. In the Court’s case-law concerning confinement of aliens in an immigration context, the duration of the relevant restriction on movement and the link between the actions of the authorities and the restricted freedom may be elements affecting the classification of the situation as amounting to deprivation of liberty or not (see, mutatis mutandis, Amuur, cited above, § 43; Gahramanov, cited above, §§ 35-47; and Mahdid and Haddar, cited above). However, as long as the applicant’s stay in the transit zone does not exceed significantly the time needed for the examination of an asylum request and there are no exceptional circumstances, the duration in itself should not affect the Court’s analysis on the applicability of Article 5 in a decisive manner. That is particularly so where the individuals, while waiting for the processing of their asylum claims, benefitted from procedural rights and safeguards against excessive waiting periods. The presence of domestic legal regulation limiting the length of stay in the transit zone is of significant importance in this regard. 148. In the present case the processing and subsequent judicial examination of the applicants’ respective cases was anything but speedy, as Mr Z.A. spent seven months and nineteen days in the transit zone awaiting the outcome of his asylum proceedings (see paragraphs 46-55 above); Mr M.B. five months and one day (see paragraphs 57-64 above); Mr A.M. one year, nine months and at least twenty-eight days (see paragraph 66-82 above); and Mr Yasien seven months and twenty-two days (see paragraphs 83-95 above). The Court thus considers that the applicants’ situation was very seriously influenced by delays and inactions of the Russian authorities which were clearly attributable to them and were not justified by any legitimate reasons. 149. The Court would add that the case file contains no indication that the applicants in the present case failed to comply with the legal regulations in place or did not act in good faith at any time during their confinement in the transit zone or at any stage of the domestic legal proceedings by, for instance, complicating the examination of their asylum cases (see, by contrast, Mahdid and Haddar, cited above, where the applicants remained in the international zone of an airport after the rejection of their request for asylum and destroyed their documents in an attempt to force the Austrian authorities to accept them). γ ) The nature and degree of the actual restrictions imposed on or experienced by the applicants 150. The individuals staying at the Sheremetyevo airport transit zone were not permitted to leave in the direction of the remaining territory of Russia, the country where the zone was located (compare and contrast Mogoş, cited above). This is unsurprising having regard to the very purpose of the transit zone as a waiting area while the authorities decided whether to formally admit asylum-seekers to Russia. 151. The Court further observes, and this was not in dispute between the parties, that even though the applicants were largely left to their own devices within the perimeter of the transit zone, the restrictions on their liberty were nevertheless substantial given that the whole area was under the permanent control of the BSG, a branch of the FSB. The Court finds that, overall, the size of the area and the manner in which it was controlled were such that the applicants’ freedom of movement was restricted to a very significant degree, in a manner similar to that characteristic of certain types of light regime detention facilities. 152. The remaining question is whether the applicants could leave the transit zone in a direction other than the territory of Russia. 153. The Court recalls its reasoning in the case of Amuur (cited above), where it stated that “the mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty” and noted that the possibility to leave “becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in” (ibid ., § 48). 154. In this regard, the Court observes that unlike in land border transit zones, in this particular case leaving the Sheremetyevo airport transit zone would have required planning, contacting aviation companies, purchasing tickets and possibly applying for a visa depending on the destination. The Court considers that the Government have failed to substantiate their assertion that despite these obstacles “the applicants were free to leave Russia at any time and go wherever they wished”. The practical and real possibility for the applicants to leave the airport transit zone and do so without a direct threat for their life or health, as known by or brought to the attention of the authorities at the relevant time, must be convincingly shown to exist. 155. In the light of this conclusion, the Court does not find it necessary to address the parties’ arguments relating to the merits of the applicants’ asylum requests. The Convention cannot be read as linking in such a manner the applicability of Article 5 to a separate issue concerning the authorities’ compliance with Article 3 (see Ilias and Ahmed [GC], no. 47287/15, §§ 244-46, 21 November 2019). δ ) Conclusion as regards the applicability of Article 5 156. The Court thus finds that, having regard in particular to the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the largely irregular character of the applicants’ stay in the Sheremetyevo airport transit zone, the excessive duration of such stay and considerable delays in domestic examination of the applicants’ asylum claims, the characteristics of the area in which the applicants were held and the control to which they were subjected during the relevant period of time and the fact that the applicants had no practical possibility of leaving the zone, the applicants were deprived of their liberty within the meaning of Article 5. Article 5 § 1 is therefore applicable. (b) Compatibility of the applicants’ deprivation of liberty with Article 5 § 1 of the Convention 157. The aim of the applicants’ deprivation of liberty was “to prevent [their] effecting an unauthorized entry into the country” and, therefore, it falls to be examined under the first limb of subparagraph Article 5 § 1 (f) (see Saadi v. the United Kingdom [GC], no. 13229/03, §§ 64-66, ECHR 2008). 158. The first question to be addressed is whether the detention was effected “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1 of the Convention. (i) General principles 159. Article 5 § 1 of the Convention delimits the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see, with further references, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 230, ECHR 2012). 160. Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Chahal v. the United Kingdom, 15 November 1996, § 73, Reports 1996 ‑ V). It is a necessary adjunct to this right that States are permitted to detain would-be immigrants who have applied for permission to enter, whether by way of asylum or not. Deprivation of liberty of asylum-seekers to prevent their unauthorised entry into a State’s territory is not in itself in contravention with the Convention (see Saadi, cited above, §§ 64 ‑ 65, and Suso Musa v. Malta, no. 42337/12, §§ 89-90, 23 July 2013). 161. Any deprivation of liberty, however, must be “in accordance with the procedure prescribed by law” that meets the “quality of law” criteria, as well as be free from arbitrariness. Where deprivation of liberty is concerned, it is essential that the general principle of legal certainty be satisfied and therefore that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Khlaifia and Others, cited above, § 92, with further references). Furthermore, the detention of a person constitutes a major interference with individual freedom and must always be subject to rigorous scrutiny. 162. The Court is fully conscious of the difficulties that member States may face during periods of massive arrivals of asylum-seekers at their borders. Subject to the prohibition of arbitrariness, the lawfulness requirement of that provision may be considered generally satisfied by a domestic legal regime that provides, for example, for no more than the name of the authority competent to order deprivation of liberty in a transit zone, the form of the order, its possible grounds and limits, the maximum duration of the confinement and, as required by Article 5 § 4, the applicable avenue of judicial appeal. 163. Furthermore, Article 5 § 1 (f) does not prevent States from enacting domestic law provisions that formulate the grounds on which such confinement can be ordered with due regard to the practical realities of massive influx of asylum-seekers. In particular, subparagraph 1(f) does not prohibit deprivation of liberty in a transit zone for a limited period on grounds that such confinement is generally necessary to ensure the asylum seekers’ presence pending the examination of their asylum claims or, moreover, on grounds that there is a need to examine the admissibility of asylum applications speedily and that, to that end, a structure and adapted procedures have been put in place at the transit zone (see, for a similar approach, Saadi, cited above, § 80). (ii) Application of these principles 164. The Court notes the argument of the applicants and the UNHCR pointing to the lack of any legal basis for the applicants’ confinement in the transit zone of Sheremetyevo Airport (see paragraph 110 above). It also notes that the Government essentially did not dispute that allegation (see paragraphs 113-118 above). Having examined the applicable domestic law (see paragraphs 97-100 above), the Court finds no trace of any provision of Russian law capable of serving as grounds for justifying the applicants’ deprivation of liberty. Accordingly, it concludes that in the present case there was no strictly defined statutory basis for the applicants’ detention. 165. This in itself would be sufficient to find a violation of Article 5 § 1 of the Convention. However, the Court would also point at the following additional factors, which further worsened the applicants’ respective situations in the present case. As transpires from the facts of the case, the applicants’ access to the asylum procedure was considerably impeded as a result of their detention, as there was no information available on asylum procedures in Russia in the transit zone and their access to legal assistance was severely restricted (see paragraphs 42-44 above). 166. The Court next observes that the applicants experienced serious delays when attempting to submit and register their asylum applications (see paragraphs 46-49, 57-59, 66-67 and 83-85 above) and, despite their written requests, were not issued and served with examination certificates as required by the domestic law (see paragraphs 49, 51, 59, 60, 68, 71 and 86 above). 167. The Court notes that some of the decisions taken by the Russian administrative and judicial bodies were communicated to them with delays (see paragraphs 50, 69, 75 and 88 above). 168. Also, the applicants were confined in a place which was clearly inappropriate for a long-term stay (see paragraphs 191-195 below). 169. Lastly, the duration of each applicant’s stay in the airport transit zone was considerable and clearly excessive in view of the nature and purpose of the procedure concerned, ranging from five months to over a year and nine months (compare Kanagaratnam v. Belgium, no. 15297/09, §§ 94-95, 13 December 2011; see also Longa Yonkeu v. Latvia, no. 57229/09, § 131, 15 November 2011, where the combined length of three periods of detention lacking a legal basis amounted to three months and seven days; and Suso Musa, cited above, § 102, where the period in question was “more than six months”.) 170. The Court finds that the applicants’ detention for the purposes of the first limb of subparagraph 5 § 1 (f) fell short of the Convention standards. 171. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of each applicant. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 172. The applicants complained that the poor material conditions of their stay in the transit zone of Sheremetyevo Airport had been incompatible with the guarantees of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Chamber judgment 173. The Chamber declared the complaint about the poor material conditions of the applicants’ detention in the airport transit zone admissible. 174. Referring to the Court’s well-established standards regarding conditions of detention in general, as well as those relevant in the context of confinement of aliens, and noting the rules on distribution of the burden of proof in conditions of detention cases, the Chamber acknowledged that the applicants had provided a credible and reasonably detailed description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment. Given that the Government had not submitted any description of the conditions of the applicants’ confinement in the airport transit zone, the Chamber found it established that the applicants had not had individual beds and had not enjoyed access to shower and cooking facilities and considered it unacceptable that anyone could be detained in conditions in which there was a complete failure to take care of his or her essential needs. The Chamber concluded that the fact that the applicants had been detained for many months in the transit zone of Sheremetyevo Airport in unacceptable conditions amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. The parties’ submissionsThe applicants The applicants The applicants 175. Reiterating that their confinement in the transit zone had amounted to deprivation of liberty, the applicants emphasised that, according to the Court’s case-law, the State must ensure that a person is detained in conditions compatible with respect for human dignity and that confinement of aliens must be accompanied by suitable standards, and maintained that they had stayed in the transit zone for lengthy periods of time in unacceptable conditions against their will, being unable to return to their home countries. They concluded that there had been a violation of Article 3 of the Convention. The Government 176. The Government stressed that a person under a State’s jurisdiction was not necessarily “at the hands of the authorities”. In the absence of a violation of Article 5 § 1, the Russian Government had not been under any obligation under Article 3 vis-à-vis the applicants, who had put themselves in difficult conditions through their own actions. 177. The Government further stated that there was no right to asylum and no corresponding obligations were imposed on a State; however, a State could afford “appropriate protection” to persons fleeing from persecution. The applicants in the present case had acted in bad faith when applying for asylum as they should have known that they were not eligible for such protection and should have foreseen that they would not be allowed entry into Russia. The Government concluded that there had been no violation of Article 3 of the Convention. Third-party intervener 178. The UNHCR described the material conditions of the stay of asylum ‑ seekers in Russian airport transit zones as follows. 179. The conditions of stay in airport transit zones were not regulated by Russian law. Nor had they been improved over the previous several years. Asylum-seekers stranded in transit zones were deprived of access to fresh air, privacy, food, and access to medical and social care. They had no choice but to stay in the open area of the transit zone in question without access to any hygienic facilities and to sleep on the floor. The UNHCR distributed basic food items and bed linen, clothing, and hygienic products on a weekly basis. 180. Russian law did not place responsibility on any State authority for ensuring minimum basic care for asylum-seekers in transit zones. The period during which an asylum-seeker had to undergo such a dire lack of basic facilities could be prolonged as on average the complete asylum procedure, including appeals, could last between one and two years. The Court’s assessmentGeneral principles General principles General principles 181. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. In the context of confinement and living conditions of asylum seekers, the Court has summarised the relevant general principles in the case of Khlaifia and Others (cited above, §§ 158-69). 182. Article 3 of the Convention requires the State to ensure that detention conditions are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see, for example, Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI). 183. In so far as the confinement of aliens and asylum-seekers is concerned, the Court reiterates the standard under Article 3 of the Convention, as recapitulated in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 216-18, ECHR 2011 (see also Dougoz v. Greece, no. 40907/98, § 44, ECHR 2001 ‑ II; Kaja v. Greece, no. 32927/03, §§ 45-46, 27 July 2006; S.D. v. Greece, no. 53541/07, §§ 45-48, 11 June 2009; Mahamed Jama v. Malta, no. 10290/13, §§ 86-89, 26 November 2015; Khlaifia and Others, cited above, §§ 163-67; Boudraa v. Turkey, no. 1009/16, §§ 28-29, 28 November 2017; and S.F. and Others v. Bulgaria, no. 8138/16, §§ 78-83, 7 December 2017), according to which it must be accompanied by suitable safeguards for the persons concerned and is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations and without depriving asylum-seekers of the protection afforded by the 1951 Geneva Convention relating to the Status of Refugees and the European Convention on Human Rights (see also Rahimi v. Greece, no. 8687/08, § 62, 5 April 2011, Khlaifia and Others, cited above, § 162, in the context of positive obligations vis ‑ à ‑ vis foreign nationals pending issuance of a transit visa; and Shioshvili and Others v. Russia, no. 19356/07, §§ 83-86, 20 December 2016). 184. The States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum ‑ seekers of the protection afforded by these conventions (see Amuur, cited above, § 43). 185. Where the Court is called upon to examine the conformity of the manner and method of the execution of the measure with the provisions of the Convention, it must look at the particular situations of the persons concerned (see Riad and Idiab, cited above, § 100). The States must have particular regard to Article 3 of the Convention, which enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim’s conduct (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). 186. The Court further reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3 in such cases. Relevant elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see, for example, S.D. v. Greece, cited above, §§ 49-54; Tabesh v. Greece, no. 8256/07, §§ 38-44, 26 November 2009; A.A. v. Greece, no. 12186/08, §§ 57-65, 22 July 2010; E.A. v. Greece, no. 74308/10, §§ 50-51, 30 July 2015; Abdi Mahamud v. Malta, no. 56796/13, §§ 89-90, 3 May 2016; Alimov v. Turkey, no. 14344/13, §§ 84-85, 6 September 2016; Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, §§ 113-14, 22 November 2016; and Khlaifia and Others, cited above, § 167). Application of those principles 187. The Court notes first of all that many of the Contracting Parties to the Convention are experiencing considerable difficulties in coping with the influx of migrants and asylum-seekers. The Court does not underestimate the burden and pressure this situation places on the States concerned and it is particularly aware of the difficulties involved in the reception of migrants and asylum ‑ seekers on their arrival at major international airports. 188. However, the Court would reiterate in this connection that the prohibition of inhuman or degrading treatment is a fundamental value in democratic societies. It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention. The prohibition in question is absolute, for no derogation from it is permissible even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime, irrespective of the conduct of the person concerned (see Khlaifia and Others, cited above, § 158 with further references). The difficulties mentioned in the above paragraph cannot therefore absolve a State of its obligations under Article 3. 189. Having regard to its earlier finding that the applicants’ stay in the airport transit zone amounted to a deprivation of liberty (see paragraph 156 above), the Court’s task in the present case is to review the applicants’ detention against the yardstick of the Convention provisions and to examine, in particular, whether the applicants were detained in conditions compatible with respect for human dignity (see Riad and Idiab, cited above, § 100, and Khlaifia and Others, cited above, § 162). 190. It is important to note that the applicants gave a credible and reasonably detailed description of their living conditions in the airport transit zone, which are supported by similar findings by the UNHCR (see paragraphs 122, 179 and 180 above), and are not explicitly disputed by the Government. This being so, referring to its well-established standard of proof in conditions-of-detention cases (see Muršić v. Croatia [GC], no. 7334/13, § 128, 20 October 2016; see also Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 121-23, 10 January 2012), the Court accepts that description as accurate. 191. On the basis of the available material, the Court can clearly see that the conditions of the applicants’ stay in the transit zone of Sheremetyevo Airport were unsuitable for an enforced long-term stay. In its view, a situation where a person not only has to sleep for months at a stretch on the floor in a constantly lit, crowded and noisy airport transit zone without unimpeded access to shower or cooking facilities and without outdoor exercise, but also has no access to medical or social assistance (see paragraphs 41 and 42 above) falls short of the minimum standards of respect for human dignity. 192. This situation was aggravated in the circumstances of the case by the fact that the applicants were left to their own devices in the transit zone, in disregard of the Russian domestic rules granting every asylum-seeker the right to be issued with an examination certificate and to be placed in temporary accommodation facilities pending examination of the asylum application (see paragraphs 99 and 100 above; compare Riad and Idiab, cited above, § 101). 193. The Court would also note that three of the applicants were eventually recognised by the UNHCR as being in need of international protection (see paragraphs 54, 77 and 94 above), which suggests that their distress was accentuated on account of the events that they had been through during their migration (see M.S.S. v. Belgium and Greece, cited above, § 232). 194. Lastly, the Court notes the extremely long duration of the detention for each of the applicants. The applicants’ detention lasted for many months in a row: seven months and nineteen days in the case of Mr Z.A.; five months and one day in the case of Mr M.B.; one year, nine months and at least twenty-eight days in the case of Mr A. M.; and seven months and twenty-two days in the case of Mr Yasien (see paragraph 148 above). 195. The Court considers that, taken together, the appalling material conditions which the applicants had to endure for such long periods of time and the complete failure of the authorities to take care of the applicants constitute degrading treatment contrary to Article 3 of the Convention. 196. Nothing in the Government’s submissions warrants concluding otherwise. The Court has also ruled that the applicants were under the respondent State’s control and in their custody throughout the relevant period of time (see paragraph 151 above). 197. The Court concludes that there has therefore been a violation of Article 3 of the Convention in respect of each applicant. APPLICATION OF ARTICLE 41 OF THE CONVENTION 198. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 199. Before the Chamber, the applicants claimed the following amounts in respect of non-pecuniary damage: 20,000 euros (EUR) each for Mr Z.A. and Mr Yasien, EUR 15,000 for Mr M.B. and EUR 35,000 for Mr A.M. 200. The Chamber found that the applicants had experienced distress and frustration on account of the breaches of Article 5 § 1 and Article 3 of the Convention, and that those breaches could not be made good solely by its findings. Making its assessment on an equitable basis, it awarded Mr Z.A. and Mr Yasien EUR 20,000 each, EUR 15,000 to Mr M.B. and EUR 26,000 to Mr A.M. in respect of non-pecuniary damage. 201. In the Grand Chamber proceedings the applicants claimed identical amounts to those claimed before the Chamber. 202. The Court considers that the applicants must have suffered distress and frustration as a result of the violations of Article 5 § 1 and Article 3 of the Convention in their case. It takes account of the circumstances of the present case, the claims made by each applicant and its practice adopted in previous comparable cases (see, for example, Riad and Idiab, cited above, § 117; Shamsa, cited above, § 65; and Rashed, cited above, § 81). Deciding on an equitable basis, the Court awards them the same amounts in respect of non-pecuniary damage as the Chamber did, that is, EUR 20,000 each to Mr Z.A. and Mr Yasien, EUR 15,000 to Mr M.B., and EUR 26,000 to Mr A.M. Costs and expenses 203. Before the Chamber, the applicants submitted the following claims for costs and expenses incurred domestically: EUR 1,650 for Mr Z.A., EUR 1,250 for Mr M.B., EUR 3,500 for Mr A.M., and EUR 2,000 for Mr Yasien. As regards the costs and expenses incurred before the Court, the applicants claimed EUR 3,500 each. 204. The Chamber awarded each applicant the sum of EUR 3,500, covering costs and expenses under all heads. 205. In the Grand Chamber proceedings the applicants claimed, jointly, EUR 4,900 for costs and expenses incurred domestically, EUR 14,000 for the proceedings before the Chamber, and EUR 7,800 for the proceedings before the Grand Chamber, that is, EUR 26,700 in total. The applicants’ representatives requested that the sums awarded be paid directly into their respective bank accounts. 206. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers excessive the total sum claimed for the costs and expenses incurred in the domestic proceedings and the proceedings before it. It decides to award the applicants EUR 19,000 jointly under that head. That sum is to be paid directly into the bank accounts of the applicants’ representatives (see Khlaifia and Others, cited above, § 288). Default interest 207. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Grand Chamber found in particular that Article 5 (right to liberty and security) of the Convention was applicable to the applicants’ case as their presence in the transit zone had not been voluntary; they had been left to their own devices for the entire period of their stay, which had lasted between five months and almost two years depending on the applicant; there had been no realistic prospect of them being able to leave the zone; and the authorities had not adhered to the domestic legislation on the reception of asylum-seekers. Further, given the absence of a legal basis for their being confined to the transit zone, a situation made worse by them being impeded in accessing the asylum system, the Court concluded that there had been a violation of the applicants’ rights protected by Article 5 § 1 of the Convention.