BATALOV v. LITHUANIA
Inadmissible
The applicant, Mr Bislan Batalov, is a Russian national of the Chechen ethnic origin, born in 1979. He is represented before the Court by Mr L. Biekša, a lawyer practising in Vilnius. 1. Proceedings determining the applicant’s status in Lithuania The applicant entered Lithuania illegally on an unspecified date in 2001. He immediately claimed asylum on the ground that he had allegedly taken part in various hostilities against the Russian military forces and that he feared persecution if returned to Russia. He alleged that he had been previously detained by Russian military officers, that he had been beaten and tortured during that detention, and that he had only been released after his relatives had “paid a ransom”. On 14 May 2004 the immigration authorities refused asylum and applied to a court for the applicant’s deportation to Russia. In reaching their conclusion, the immigration authorities referred to the “danger to national security” which the applicant represented. No factual elements were specified to support that statement, the immigration authorities having reached the conclusion on the basis of a letter sent to them by the State Security Department. The decision of 14 May 2004 mentioned that the applicant had the right of appeal to a court within seven days of the notification of the decision, pursuant to Article 138 of the Aliens Act. The decision of 14 May 2004 was translated into Russian and given to the applicant on 14 June 2004, as confirmed by his signature on a copy of the decision submitted to the Court. On 10 June 2004 the Vilnius Regional Administrative Court accepted the immigration authorities’ request to deport the applicant to Russia on the basis of his presenting a danger to national security. On 16 June 2004 the applicant was accommodated at the Aliens Registration Centre (ARC) pending the final determination of his legal status in Lithuania. On 23 June 2004 the applicant applied to a court, claiming asylum and alleging persecution in Russia. On 30 June 2004 the Vilnius Regional Administrative Court dismissed the application on the ground that the applicant had missed the seven day time-limit for the submission of an appeal, laid down in Article 138 of the Aliens Act. In this regard it was noted that the applicant had sent his application by post only on 23 June 2004. The court also noted that the applicant had not specified whether his application was an appeal against the immigration authorities’ decision of 14 May 2004, or against the court decision of 10 June 2004. In either event, the applicant had submitted his appeal out of time. It was further noted that he had not requested an extension of the time-limit for appeal. On 7 July 2004 the applicant received the court decision of 30 June 2004. On 8 July 2004 he consulted a lawyer, who helped him to draft a further appeal against the immigration authorities’ decision of 14 May 2004. In that appeal, dated 9 July 2004, the applicant stated that he had only taken cognisance of the impugned decision on 14 June 2004, and that he had appealed against it on 23 June 2004. Since he did not have a lawyer until 8 July 2004, the applicant requested the reinstatement of the time-limit for appealing against the decision of 14 May 2004. In his appeal, the applicant argued that the authorities’ conclusions on his alleged “danger to national security” were not supported by any evidence. He claimed that he would be subjected to persecution if returned to Russia. On 14 July 2004 the Vilnius Regional Administrative Court dismissed the applicant’s request to reinstate the time-limit. The court held that the time-limit mentioned in Article 138 of the Aliens Act could only be reinstated in cases where it had been missed as a result of circumstances independent of the applicant’s will. However, the court observed that the applicant had not invoked any circumstances which could show that he was not in a position to submit his appeal before 23 June 2004. On 27 July 2004 the applicant filed an appeal against the decision of 14 July 2004. The applicant stated that from 14 June 2004, after having taken cognisance of the decision of 14 May 2004, he had been unable to submit his appeal within the seven-day period since he did not know the Lithuanian language or legislation and, moreover, had no postage stamps or envelopes to send an appeal. According to the applicant, on 22 June 2004 he had given his appeal, which had been written in Russian, to a representative of the United Nations High Commissioner for Refugees (UNHCR), who in turn sent the appeal to the court. The applicant also stated that the UNHCR representative had promised the applicant that he would inform certain immigration lawyers about his situation. As a result, the applicant had been able to meet a lawyer for the first time on 8 July 2004, and to draft a properly motivated appeal on 9 July 2004. On 9 September 2004 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 14 July 2004. The court reiterated that the applicant’s first appeal against the decision of 14 May 2004 had only been sent on 23 June 2004, i.e. more than seven days after the applicant had familiarised himself with the decision (of 14 June 2004). The court observed that the fact that the applicant had access to a lawyer for the first time only on 8 July 2004 did not constitute a circumstance absolving him from the obligation to comply with the time-limit. The court also stated that the other allegations relied on by the applicant (i.e. ignorance of language and laws, and no stationery) could not be reviewed on appeal as these facts had not been alleged before the first-instance court on 14 July 2004. That decision was final. On 22 November 2004 the European Court of Human Rights communicated the applicant’s complaints about his imminent expulsion from Lithuania to Russia under Article 3 of the Convention. On 17 December 2004 the Vilnius Regional Administrative Court suspended the execution of the expulsion order of 10 June 2004. On 14 January 2005 the immigration authorities authorised the applicant’s stay in Lithuania on humanitarian grounds. On 25 March 2005 the President of the Supreme Administrative Court petitioned the Supreme Administrative Court to resume the proceedings concerning the applicant’s expulsion. On 29 March 2005 the Supreme Administrative Court accepted the President’s petition. The case was transmitted for a fresh examination by the Vilnius Regional Administrative Court. On 19 April 2005 the Vilnius Regional Administrative Court quashed the expulsion order of 10 June 2004 inter alia because of a risk of the applicant’s possible persecution if deported to Russia. On 5 July 2005 the immigration authorities issued the applicant with a temporary residence permit on humanitarian grounds. In his letter of 19 July 2005, the applicant stated that, in view of the regularisation of his stay in Lithuania, he no longer wished to pursue his complaints under Article 3 of the Convention. 2. The applicant’s detention The applicant had not been arrested or detained upon his entry into Lithuania in 2001 or immediately thereafter. In early 2004 he lived at an address in Kaunas. On 28 May 2004 the immigration authorities informed the Vilnius Regional Administrative Court that the applicant had not been found at his permanent place of residence, and that as a result he not been acquainted with the decision of 14 May 2004 refusing asylum. On 13 June 2004 the applicant was arrested by the Kaunas police in view of the expulsion order of 10 June 2004. On 14 June 2004 the applicant’s detention (sulaikymas) and placement (apgyvendinimas) at the ARC were authorised by the Kaunas City District Court to ensure the applicant’s eventual expulsion from Lithuania on the basis of Article 113 of the Aliens Act (see the “Relevant domestic law and practice” part below). Detention was authorised until 14 September 2004. On the same date the applicant escaped from the police. A search for him was launched. On 16 June 2004 he was again arrested, brought to and accommodated at the ARC. On 14 September, 14 October 2004 and 13 December 2004, the Švenčionys District Court extended the term of the applicant’s detention, by the latter decision until 15 March 2005. On 3 January 2005 the Švenčionys District Court refused to order the applicant’s release. On 31 January 2005 the Supreme Administrative Court dismissed his appeal against the decision of 3 January 2005. In this connection the appeal court noted that the decision on the applicant’s expulsion had not been quashed, although its execution had been suspended by the Vilnius Regional Administrative Court on 17 December 2004. It held that the applicant’s continuing detention was compatible with Article 113 §§ 5 and 7 of the Aliens Act (see the “Relevant domestic law and practice” part below). On 14 February 2005 the Švenčionys District Court refused to order the applicant’s release. On 14 March 2005 the Švenčionys District Court further authorised the applicant’s detention at the ARC until 15 June 2005. The court noted that on 14 January 2005 the immigration authorities had decided to authorise the applicant’s stay in the country on humanitarian grounds, and that, as a result, the ground specified in Article 113 § 2 of the Aliens Act, namely the unlawfulness of his stay in the country, could no longer justify his detention. However, the court observed that the continuing validity of the expulsion order of 10 June 2004 warranted his detention in accordance with Article 113 §§ 5 and 7 of the Aliens Act. On 18 March 2005 the Supreme Administrative Court rejected the applicant’s appeal against the decision of 14 February 2005. On 19 April 2005 the Vilnius Regional Administrative Court quashed the expulsion order of 10 June 2004 inter alia because of a risk of the applicant’s possible persecution if deported to Russia. In view of this decision, on 6 May 2005 the Supreme Administrative Court decided that there were no longer any grounds for the applicant’s detention under Article 113 of the Aliens Act. The decision of 14 March 2005 was accordingly quashed. On 9 May 2005, upon the applicant’s request, his further stay at the ARC was authorised by the immigration authorities under a different regime, namely without any restrictions on his liberty of movement. Following the decision of 5 July 2005 to issue the applicant with a temporary residence permit, he left his accommodation at the ARC on an unspecified date in July 2005. It appears that he now lives in a place of his own choice in Lithuania. According to Article 267 of the Code of Administrative Offences and Article 114 of the Aliens Act of 30 April 2004, an alien can be arrested (sulaikytas) by the police and held for up to 48 hours, in order to determine the legality of his stay in the country. The alien can thereafter be deprived of his liberty only on the basis of a court order. Pursuant to Article 113 of the Aliens Act, an alien may be detained (sulaikytas) if his stay in the country is illegal (Article 113 § 2 of the Act), where a decision has been taken to expel him (Article 113 § 5), or when he presents a danger to public safety and national security (Article 113 § 7). According to Article 116 of the Act, the immigration authorities shall apply to a court for a detention order if one of the grounds specified in Article 113 exists.