Challenging the lawfulness of detention
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Administrative Offences 23. Article 18.8 of the current version of the Code provides as follows : “1. An infringement by a foreign national or a stateless person of the procedure for entry to the Russian Federation or the regulations on stay or residence in the Russian Federation, including ... a breach of the regulations on migration, travel or choice of permanent or temporary residence ... shall be punishable by an administrative fine ... and by possible administrative removal from the Russian Federation. 1.1. A breach of the regulations on stay or residence in the Russian Federation committed by a foreign national or a stateless person who has no document confirming the right to reside or stay in the Russian Federation ... shall be punishable by an administrative fine of between RUB 2,000 and 5,000 and by administrative removal from the Russian Federation. ... 3. The offences described in paragraphs 1, 1.1 ... above, if committed in the federal-level cities of Moscow and St Petersburg or in the Moscow or Leningrad Regions, shall be punishable by an administrative fine of between RUB 5,000 and 7,000 and by administrative removal from the Russian Federation. ” Paragraphs 1.1 and 3 of Article 18.8 were added by Federal Law no. 207-FZ of 23 July 2013. 24. Article 32.10 ( 5 ), in force at the time the applicant ’ s detention was ordered, allowed domestic courts to order the detention of a foreign national or stateless person with a view to his or her administrative removal. As from 1 January 2012, the relevant provisions have been contained in Articles 3.10 (5) and 27.19 (3). B. Case-law of the Constitutional Court 25. In its decision no. 6-P dated 17 February 1998, the Constitutional Court held, in particular, as follows: “It follows from Article 22 of the Constitution of the Russian Federation, taken in conjunction with its Article 55 (paragraphs 2 and 3), that detention for an indefinite period cannot be regarded a permissible limitation on the right to liberty and personal security, and is in fact a violation of that right. Therefore the provisions ... concerning detention pending expulsion should not serve as a basis for detention for an indefinite period even when the expulsion of a stateless person is delayed because no State is prepared to accept that person ... Otherwise detention would turn from a measure necessary to ensure the execution of an expulsion order into a ... punishment which is not provided under Russian law and which is incompatible with the provisions of the Constitution of the Russian Federation.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 26. The applicant complained that the conditions of his detention in the detention centre for aliens had been incompatible with Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 28. The Government acknowledged a violation of Article 3 of the Convention and stated that the conditions of the applicant ’ s detention had fallen short of the applicable standards. 29. The applicant submitted that the conditions of his detention in the detention centre for aliens, which had been designed for short periods of detention not exceeding fifteen days but in which he had spent two years, had been inhuman and degrading. 30. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of a democratic society. The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim ’ s behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has consistently stressed that the suffering and humiliation involved must, for a violation to be found, go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 31. Turning to the facts of the present case, the Court notes that the applicant spent two years and ten days in the detention centre for aliens, which appears to have been designed for short-term detention. This accounts for the rudimentary state of the centre ’ s facilities. There was no running water or toilets in the cells. Hygiene facilities were manifestly inadequate in relation to the number of detainees. Outdoor exercise was sporadic and of an extremely limited duration. The Court reiterates in this connection its well-established case-law that the mere fact of holding an applicant for a long period of time in an unadapted cell designed only for short-term detention discloses a violation of Article 3 (see Aslanis v. Greece, no. 36401/10, § 38, 17 October 2013, with further references; Kuptsov and Kuptsova v. Russia, no. 6110/03, § § 69-72, 3 March 2011; Khristoforov v. Russia, no. 11336/06, §§ 23-27, 29 April 2010, and Shchebet v. Russia, no. 16074/07, §§ 84-96, 12 June 2008). 32. In addition, the detention centre for aliens was constantly and severely overcrowded. During the first one and a half years of his detention the applicant disposed of less than two square metres of personal space. In the final ten months his situation improved slightly, and periods of overcrowding, with eight people sharing the eighteen-square-metre cell, alternated with periods of relative normality when only four of them were present in the cell. However, the latter periods must be seen against the background of virtually non-existent outdoor exercise and deficient hygiene facilities. In previous cases where the applicants disposed of less than three square metres of personal space, the Court found that the overcrowding was severe enough to justify, in its own right, a finding of a violation of Article 3 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 145, 10 January 2012 ). 33. The Government did not dispute the applicant ’ s account of the conditions of his detention. They also conceded that those conditions had fallen short of the standards set forth in Article 3 of the Convention. 34. The Court finds that the applicant had to endure conditions of detention which must have caused him considerable mental and physical suffering, diminishing his human dignity. The conditions of his detention thus amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention, even in the absence of any positive intention to humiliate or debase the applicant on the part of any domestic authority. 35. There has accordingly been a violation of Article 3 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 36. The applicant complained that his detention pending expulsion had been in breach of Article 5 § 1 (f) of the Convention on account of its excessive length and the obvious impossibility to enforce the order for his expulsion to Uzbekistan. He further complained under Article 5 § 4 of the Convention that he had been unable to obtain a judicial review of his detention. The relevant parts of Article 5 provide 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. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...” A. Admissibility 37. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 38. The Court will consider firstly whether there existed a possibility of effective supervision over unlawful or arbitrary detention and secondly whether the applicant ’ s detention was compatible with the requirements of Article 5 § 1 (f) (see Azimov v. Russia, no. 67474/11, § 146 et seq., 18 April 2013; Louled Massoud v. Malta, no. 24340/08, § 29 et seq., 27 July 2010; and Muminov v. Russia, no. 42502/06, § 112 et seq., 11 December 2008 ). 1. Compliance with Article 5 § 4 of the Convention 39. The Government acknowledged a violation of Article 5 § 4. 40. The applicant submitted that Russian law does not provide for any possibility to obtain a meaningful judicial review of the detention of an individual who is detained pending administrative expulsion (he referred, by way of comparison, to Tabesh v. Greece, no. 8256/07, § 62, 26 November 2009 ). Such detention may last up to two years but there is no periodic judicial review of it. His applications for review were dismissed in a summary fashion first by the Sestroretsk Town Court and later by the Krasnoselskiy District Court. In both cases, the St Petersburg City Court upheld the lower courts ’ decisions. 41. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person ’ s detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Muminov, cited above, § 113, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008, with further references). 42. The Court notes at the outset that a judicial review of the kind required under Article 5 § 4 cannot be said to be incorporated in the initial detention order of 19 July 2011. The thrust of the applicant ’ s complaint under Article 5 § 4 was not directed against the initial decision on his placement in custody but rather against his inability to obtain a judicial review of his detention after a certain lapse of time. Given that the applicant spent more than two years in custody, new issues affecting the lawfulness of the detention might have arisen in the meantime. In particular, the applicant sought to argue before the courts that his detention had ceased to be lawful after it had transpired that it was impossible to expel him to Uzbekistan. By virtue of Article 5 § 4 the applicant was entitled to apply to a “court” having jurisdiction to decide “speedily” whether or not his deprivation of liberty had become “unlawful” in the light of new factors which emerged subsequently to the decision on his initial placement in custody (see Azimov, cited above, §§ 151-152, with further references). 43. The Court observes that no automatic periodic extension of the applicant ’ s detention or any judicial review thereof took place during the entire two-year period that he remained in custody. The applicant ’ s attempts to seek any form of review were likewise unfruitful: two District Courts and the St Petersburg City Court refused to deal with the substance of his complaint about unlawful detention, finding that there was no need to vary the custodial measure or to review its lawfulness in the light of the new circumstances. The Court lastly notes that in the Azimov case, which featured a similar complaint, the Government did not point to any domestic legal provision which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion (see Azimov, cited above, § 153); in the instant case, the Government also acknowledged a violation of Article 5 § 4. 44. It follows that throughout the term of the applicant ’ s detention pending expulsion he did not have at his disposal any procedure for a judicial review of its lawfulness. 45. There has therefore been a violation of Article 5 § 4. 2. Compliance with Article 5 § 1 of the Convention 46. The Government acknowledged a violation of Article 5 § 1 (f) in respect of the time period after 5 February 2013, the date on which the letter from the Embassy of Uzbekistan made it clear that the applicant ’ s expulsion to Uzbekistan was impossible. As regards the preceding period, the Government submitted that the lengthy detention was accounted for by an “objective reason”, notably the absence of information from the Embassy of Uzbekistan. The domestic authorities had shown “special diligence” in the conduct of the expulsion proceedings. 47. The applicant submitted that the Russian authorities had not conducted the expulsion proceedings with due diligence. This lack of due diligence on their part was exemplified in several ways. Firstly, no effort had been made to contact the Uzbek authorities in the first four months and eleven days of his detention. Secondly, the Russian authorities had sent no fewer than four letters to the Embassy of Uzbekistan in Moscow, but a first reply was received more than one year and two months after the despatch of the first letter. Thirdly, there had been no justification for the applicant ’ s detention after 5 February 2013, when the Russian authorities had become aware that he was not an Uzbek national. Finally, the applicant pointed out that he had been kept in detention pending expulsion: thus, there had been no complex extradition proceedings and the only issue to be determined had been whether at least one State was willing and able to receive him. 48. The applicant was held in custody with a view to his expulsion from Russia, which is a form of “deportation” in terms of Article 5 § 1 (f) of the Convention (see Azimov, cited above, § 160). Accordingly, the deprivation of the applicant ’ s liberty fell within the ambit of Article 5 § 1 (f). 49. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent an individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996 ‑ V ). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009 ). 50. The Court notes that the applicant remained in detention pending the enforcement of the order for his expulsion for a total period of two years and ten days. It appears that the only steps taken by the Russian authorities during that time were to write to the Embassy of Uzbekistan in Moscow five times, asking it to issue a travel document for the applicant. It is true that the Russian authorities could not compel the Embassy to issue such a document. However, there is no indication that they pursued the matter vigorously or endeavoured to enter into negotiations with the Uzbek authorities with a view to expediting its delivery ( compare Amie and Others v. Bulgaria, no. 58149/08, § 77, 12 February 2013; Raza v. Bulgaria, no. 31465/08, § 73, 11 February 2010; Tabesh, cited above, § 56; and Louled Massoud, cited above, § 66). 51. It is a matter of particular concern to the Court that the Russian authorities sent their first letter to the Embassy of Uzbekistan more than four months after the applicant ’ s placement in custody. The letter concerned the applicant and twelve other individuals who were presumed to be nationals of Uzbekistan. While administrative convenience may call for a group treatment of similar requests under different circumstances, the fact that the applicant was in detention required special diligence from the authorities and the four-month delay was clearly in breach of that requirement (see Tabesh, cited above, § 56, in which the authorities remained passive for three months). 52. Upon receipt of the letter from the Uzbek authorities dated 5 February 2013, the Russian authorities became aware that the applicant ’ s expulsion to Uzbekistan was no longer a realistic prospect because he was not a national of that State. The Government have not provided evidence of any efforts having been made to secure the applicant ’ s admission to a third country. There is no indication that they asked him to specify such a country or that they took any steps to explore that option on their own initiative (compare Amie and Others, cited above, § 77). The Court reiterates that detention cannot be said to have been effected with a view to the applicant ’ s deportation if this was no longer feasible (see Mikolenko v. Estonia, no. 10664/05, §§ 64-65, 8 October 2009). This was also conceded by the respondent Government. 53. The Court further reiterates that the domestic authorities have an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified (see Amie and Others, cited above, § 77, and Louled Massoud, cited above, § 6 8). In such circumstances the necessity of procedural safeguards becomes decisive. However, the Court has already established that the applicant did not have any effective remedy by which to contest the lawfulness and length of his detention, and the Government have not pointed to any other normative or practical safeguard. It follows that the Russian legal system did not provide for a procedure capable of preventing the risk of arbitrary detention pending expulsion ( see Azimov, cited above, §§ 153-54; Louled Massoud, cited above, § 71, and, mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07, § 114, 23 October 2008 ). In the absence of such safeguards, the applicant spent the entire two-year period, that is, the maximum period the Russian law stipulates for the enforcement of an expulsion order, in detention. 54. The Court is concerned about the applicant ’ s particularly vulnerable situation. As a stateless person, he was unable to benefit from consular assistance and advice, which would normally be extended by diplomatic staff of an incarcerated individual ’ s country of nationality. Furthermore, he appears to have no financial resources or family connections in Russia and he must have experienced considerable difficulties in contacting and retaining a legal representative. The domestic authorities do not appear to have taken any initiative to accelerate the progress of the removal proceedings and to ensure the effective protection of his right to liberty, although the decision by the Constitutional Court of 17 February 1998 may be read as expressly requiring them to do so (see paragraph 25 above). As a consequence, the applicant was simply left to languish for months and years, locked up in his cell, without any authority taking an active interest in his fate and well-being. 55. Lastly, the Court reiterates that the maximum penalty in the form of deprivation of liberty for an administrative offence under the Code of Administrative Offences is thirty days (see Azimov, cited above, § 172 ) and that detention with a view to expulsion should not be punitive in nature and should also be accompanied by appropriate safeguards, as established by the Russian Constitutional Court (see paragraph 25 above). In this case the “preventive” measure, in terms of its gravity, was much more serious than the “punitive” one, which is abnormal (see Azimov, cited above, § 172). 56. The foregoing considerations are sufficient to enable the Court to conclude that the grounds for the applicant ’ s detention – action taken with a view to his expulsion – did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities ’ failure to conduct the proceedings with due diligence. 57. There has accordingly been a violation of Article 5 § 1 (f) of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58. 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.” A. Damage 59. The applicant asked the Court to determine the amount of compensation in respect of non-pecuniary damage. Having no identity documents or bank account, he asked the Court to order payment of any award into the bank account of his representative, Ms Tseytlina. 60. The Government considered that the finding of a violation would constitute sufficient just satisfaction. 61. The Court awards the applicant 30,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 62. The applicant also claimed EUR 1,070 for the work of two representatives in the domestic proceedings and before the Court. 63. The Government submitted that the applicant failed to submit supporting documents. 64. 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 the above criteria, the Court considers it reasonable to award the amount claimed, that is, EUR 1,070, covering costs under all heads plus any tax that may be chargeable to the applicant. C. Default interest 65. 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. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 66. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 67. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects. 68. The present case has disclosed violations of some of the core rights protected by the Convention – prohibition of ill-treatment and the right to liberty – which were not prevented through domestic legal remedies. A situation similar to the one obtaining in the instant case arose in a case of three stateless persons of Roma origin who had spent almost one year in the same detention centre for aliens in St Petersburg pending their administrative removal from Russia, without judicial review of their detention. That case was terminated by way of a friendly settlement, with the Government undertaking to pay a sum of money to the applicants (see Lakatosh and Others v. Russia ( dec. ), no. 32002/10, 7 June 2011). In Azimov and follow-up cases the Court found a violation of Article 5 § 4 of the Convention on account of the fact that during the term of the applicants ’ detention pending expulsion they did not have at their disposal any procedure for judicial review of its lawfulness in the light of new factors which emerged subsequent to the decision on their initial placement in custody (see Azimov, cited above, §§ 153-54 ). 69. In principle, it is not for the Court to determine possible appropriate measures of redress for a respondent State to carry out in accordance with its obligations under Article 46 of the Convention. With a view, however, to helping the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Stanev v. Bulgaria [GC], no. 36760/06, § 255, 17 January 2012; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, ECHR 2009; and Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). The Court ’ s concern is to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection. In that connection, the Court considers that general measures at the national level are undoubtedly called for in the execution of the present judgment (see Driza v. Albania, no. 33771/02, § 125, ECHR 2007 ‑ V (extracts), and Louled Massoud, cited above, § 47 ). A. General measures to prevent similar violations 70. In view of its finding of a violation of Article 5 § 4 in the instant case, the Court considers that it is necessary to indicate the general measures required to prevent other similar violations in the future. It has found a violation of Article 5 § 4 on account of the fact that the applicant, who was held in custody pending his expulsion from Russia, was unable to institute proceedings by which the lawfulness of his detention could be examined by a court and his release ordered if the detention ceased to be justified (see paragraph 43 above). 71. Thus, the Court considers that the respondent State must above all, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism which allows individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings. The Court reiterates that although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom, cited above, § 203, and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012). 72. The Court has also found a violation of Article 5 § 1 of the Convention on account of the unreasonable duration of the applicant ’ s detention. Accordingly, it recommends that the respondent State envisage taking the necessary general measures to limit detention periods so that they remain connected to the ground of detention applicable in an immigration context (see paragraph 55 above, Suso Musa v. Malta, no. 42337/12, § 123, 23 July 2013, and the Constitutional Court ’ s decision no. 6-P cited in paragraph 25 above). B. Remedial measures in respect of the applicant 73. The Court further notes that, in addition to being stateless, the applicant appears to have no fixed residence and no identity documents. The Court is therefore concerned that following his release, the applicant ’ s situation has remained irregular from the standpoint of Russian immigration law. He thus risks exposure to a new round of prosecution under Article 18.8 of the Code of Administrative Offences, cited in paragraph 23 above. 74. The Court is therefore convinced that it is incumbent upon the Russian Government to avail itself of the necessary tools and procedures in order to prevent the applicant from being re-arrested and put in detention for the offences resulting from his status of a stateless person. Given the variety of means available to achieve this aim and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific individual measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicant ’ s evolving situation, the adoption of such measures that are feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 255, ECHR 2013 (extracts) ).
The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. It found in particular that the applicant had had no procedure available to him to challenge his detention, and that he had remained in detention even though there was no realistic prospect of securing his expulsion. The authorities had therefore lacked the required diligence in view of the situation. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further concluded, in particular, that Russia was to take appropriate measures to provide for procedures in order to prevent the applicant from being re-arrested and detained for the offences resulting from his status as a stateless person. In this case the Court also found that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the applicant’s detention conditions.