CASE OF A.L. (X.W.) v. RUSSIA
Violation of Article 2 - Right to life (Article 2 - Expulsion;Article 2-1 - Death penalty) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (China);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
6. According to the applicant, he is a Russian national, A.L., born in 1972. According to the Government, the applicant is a Chinese national, X.W., born in 1973. He lives in Elista. 7. On 19 March 2014 the applicant was arrested in St Petersburg on suspicion of murdering a Chinese policeman in 1996. He was in possession of a Russian national passport in the name of A.L., born in 1972 in the Primorskiy region of Russia. 8. On 21 March 2014 the Smolninskiy District Court of St Petersburg ordered the applicant’s detention until 17 April 2014, pending receipt of an official extradition request from the Chinese authorities. The District Court noted that the applicant had been identified by means of photographic comparisons as X.W., a Chinese national born in China in 1973. His name was on Interpol’s list of wanted persons. The Chinese authorities had issued an arrest warrant in his name dated 15 December 2011 from which it was apparent that he was suspected of a criminal offence under Article 232 of the Chinese Criminal Code. That offence was punishable by the death penalty, life imprisonment or at least three years’ imprisonment, and the limitation period was twenty years. The limitation period in respect of a comparable criminal offence in the Russian Criminal Code was fifteen years, but this was suspended if the suspect had fled from justice. The court further noted that a Russian national passport in the name of A.L. had apparently been unlawfully obtained by the applicant after he submitted false information to the competent Russian authorities. It was clear that he was not a Russian national but a Chinese national and could be therefore extradited to China. 9. The Chinese authorities failed to submit an official extradition request within the thirty-day time-limit established by the Bilateral Treaty on Extradition of 26 June 1995. 10. On 17 April 2014 the St Petersburg Transport Prosecutor ordered the applicant’s release. At the same time he noted that it was necessary to start administrative removal proceedings against the applicant on the grounds that his residence in Russia was unlawful. 11. Despite the release order, the applicant remained in detention. 12. On 18 April 2014 the St Petersburg transport police drafted a report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code (unlawful residence in Russia of a foreign national, see paragraph 47 below). 13. On the same day, 18 April 2014, the Smolninskiy District Court found the applicant guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences and ordered his administrative removal to China. The court took note of a letter dated 21 March 2014 by the Federal Migration Service which showed that it was impossible to establish whether or not the applicant was a Russian national. He had received a Russian national passport in the name of A.L. in 2000 after declaring that he had lost his previous passport, which had been issued in 1988. However, according to the Federal Migration Service, the allegedly lost passport never existed. The court further relied on the extradition casefile, from which it was apparent that the applicant was in fact a Chinese national, X.W., rather than a Russian national A.L. Being a Chinese national, he was residing in Russia unlawfully without a valid visa or residence permit. The court noted that the applicant was sought by the Chinese authorities on suspicion of murder. He was therefore dangerous and it was necessary to sentence him to administrative removal from Russia. Lastly, the court observed that, although the applicant had a Russian wife, he did not have any children who were minors living in Russia. In such circumstances, and taking into account his dangerousness, the public interest outweighed his personal interest in maintaining his family life in Russia. 14. The applicant appealed. He submitted, in particular, that his passport as a Russian national had never been cancelled and was therefore still valid. He further argued that his administrative removal was extradition in disguise. The fifteen-year limitation period established by Russian criminal law had expired and he could no longer be lawfully extradited to China. If he was administratively removed to China he would be immediately arrested and very probably subjected to the death penalty. His removal to China would therefore be in breach of Articles 2 and 3 of the Convention. 15. On 24 April 2014 the Federal Migration Service found that the applicant was not a Russian national. He had obtained the Russian national passport in the name of A.L. unlawfully. 16. On 28 August 2014 the St Petersburg City Court quashed the judgment of 18 April 2014, finding that the administrative offence report of 18 April 2014 had been procedurally defective, and remitted the case to the District Court for a new examination. These proceedings were later discontinued. 17. On 29 August 2014 the Krasnoselskiy District police drafted a new report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code. 18. On 30 August 2014 the Krasnoselskiy District Court of St Petersburg discontinued the administrative offence proceedings against the applicant, finding that the administrative offence report of 29 August 2014 had been procedurally defective. 19. On 31 August 2104 the applicant was released. His passport, seized upon arrest, was not returned to him. He was served with a decision by the St Petersburg and Leningrad Region Interior Department, dated 29 August 2014, declaring the undesirability of his presence in Russia (the “exclusion order”) which read in its entirety as follows: “On 27 August 2014 the Interior Ministry of the Russian Federation decided that your presence (residence) in Russia was undesirable in accordance with section 25 of [the Entry and Exit Procedures Act]. You must therefore leave the Russian Federation before 3 September 2014. If you do not leave before the stated deadline, you will be deported. In accordance with section 27 of [the Entry and Exit Procedures Act], if a decision declaring the undesirability of an individual’s presence (residence) in the Russian Federation has been issued, that individual may no longer enter the Russian Federation.” 20. The applicant challenged the exclusion order before the Smolninskiy District Court. He also complained that his passport had been unlawfully seized. He submitted that he could not cross the Russian border without a passport and could not therefore comply with the exclusion order by leaving Russia for another country. In these circumstances, the exclusion order would automatically entail his deportation to China. If he was deported to China he would be immediately arrested and very probably subjected to the death penalty. His deportation would therefore be in breach of Articles 2 and 3 of the Convention. 21. On 12 November 2014 the Smolninskiy District Court found that the exclusion order had been lawful. It had been issued by a competent authority in accordance with the procedure prescribed by law and had been based on sufficient reasons. Given that the applicant was sought by the Chinese authorities on suspicion of murder, had been fined several times in Russia for driving offences and had lived in Russia unlawfully with an unlawfully issued passport, there were sufficient reasons to find that he represented a real threat to public order and security. The court further noted that the applicant did not dispute the above facts. The thrust of his complaint was that his deportation to China would expose him to a risk of being subjected to the death penalty that amounted to inhuman treatment. Those arguments could not, however, serve as grounds for annulling the lawfully adopted exclusion order. The court also held that the applicant’s argument that the exclusion order would automatically entail his deportation to China was unconvincing. Firstly, deportation was not automatic and required a separate administrative decision that could be challenged before a court. Secondly, the applicant had the possibility of avoiding deportation to China by leaving Russia for another country. 22. The court further held that the seizure of the applicant’s passport in the name of A.L. had been lawful. By the decision of 24 April 2014 the Federal Migration Service had found that that passport had been issued unlawfully and that the applicant was not a Russian national. Those were lawful grounds for seizing a passport. The procedure prescribed by law had been respected. 23. The applicant appealed. He submitted, in particular, that the domestic law did not require a separate administrative decision on deportation. The exclusion order alone constituted a sufficient legal basis for deportation and his failure to leave Russia before the stated deadline could therefore entail automatic deportation to China. He did not have any remedies with suspensive effect in such a situation. He further reiterated his argument that he could not leave Russia for another country because his passport had been seized by the authorities and he did not have any other identity documents. Lastly, he argued that his deportation to China would amount to a breach of not only Articles 2 and 3 of the Convention, but also of Article 8, because he was married to a Russian national. 24. On 25 February 2015 the St Petersburg City Court upheld the judgment of 12 November 2014 on appeal, finding that it had been lawful, well-reasoned and justified. It added that a genetic test had established that the applicant’s genetic profile matched the genetic profiles of X.W.’s parents. There was therefore no doubt that the applicant’s real name was X.W. It further agreed with the District Court that the applicant could avoid deportation to China by leaving Russia for another country using his Chinese passport. 25. From 18 April to 29 August 2014 the applicant was detained in a detention centre for aliens (Центр для содержания иностранных граждан) located in Krasnoye Selo in St Petersburg. 26. From 18 to 21 April 2014 the applicant was held in a punishment cell. From 18 to 20 April 2014 he was handcuffed. The cell had no windows and was empty. It had no bunk or chair and the applicant had to stand or remain in the squatting position all the time. There was no lavatory bowl or running water. His requests to allow him to use the toilet were refused and he had to relieve himself in a plastic bottle. He was given food only once during that period but was anyway unable to eat it because of his handcuffs. 27. On 21 April 2014 the applicant was transferred to solitary confinement cell no. 412 on the fourth floor where he remained until 2 July 2014. The cell measured 9 sq. m and was equipped with a bed, a bedside cabinet, a table, a sink and a lavatory bowl that stank. The window did not open so the applicant could not air his cell. The window was also covered with paint which blocked the daylight. The artificial lights were dim. The cell was damp and cold and the applicant had to sleep with his coat on. The cell was swarming with mice. 28. From 2 July to 29 August 2014 the applicant was held in solitary confinement cell no. 413. The conditions of detention in that cell were similar to those in cell no. 412. 29. Both cells nos. 412 and 413 were locked and the applicant remained alone all the time. Neither the other inmates nor the warders ever entered the cells. The cells were not equipped with a radio or TV set. The applicant was not given any books or newspapers. He was not allowed to use his mobile telephone. As he was in total isolation, he counted the days by drawing sticks on paper. 30. It was not until 5 June 2014 that he was allowed to take walks in the yard. In particular, he was allowed to go out in the yard on 10, 11, 12, 14, 15, 17, 18, 21 and 30 June, 13, 7, 11, 13, 15, 19, 27 and 29 July and 3, 6, 9, 11, 12, 18, 21, 24 and 25 August 2014. The walks lasted between ten minutes and half an hour. The exercise yard measured 30 m by 8 m and was enclosed by a three-metre-high fence. The applicant was always alone in the yard. 31. It was very difficult to get permission for family visits. He was allowed only four visits from his wife, each time for less than half an hour and in the presence of warders. 32. The detention centre had no canteen and the food was brought from other detention facilities. It was always cold and did not contain any vegetable, fruit, meat or dairy products. The warders gave him food through a small window in the door. No drinking water was provided and the applicant had to drink tap water which was of poor quality. 33. During his four-month stay in the centre the applicant was allowed to take a shower only five times. The water in the shower was cold. There was no laundry service and the applicant had to wash his clothes himself. 34. According to the Government, the applicant was held in cell no. 412 which measured 27.4 sq. m. The cell had windows, artificial light and central heating. It was equipped with a lavatory bowl, running hot and cold water, a bed, a bedside cabinet and a dining table. 35. Inmates were provided with hot meals three times per day. They could walk in the exercise yard every morning in accordance with applicable regulations. 36. The detention centre for aliens had a library which the applicant was allowed to use on request. 37. The detention centre for aliens had no punishment cells and its warders never used handcuffs. 38. On 29 August 2014 the applicant was transferred to an administrative detention cell at Krasnoselskiy District police station no. 9 where he remained until 31 August 2014. 39. The applicant was placed in a cell at about 4.30 p.m. on 29 August. However, he remained handcuffed until 11.30 p.m. of the same day. 40. The cell measured 3.75 sq. m. It had concrete walls and ceiling and no windows. There was an opening in the wall measuring 40 cm by 60 cm blocked by a metal sheet with ventilation holes. 41. The cell was equipped with a narrow wooden bench. There was no table, chair, sink or lavatory bowl. The applicant was not given any food or water. He was not allowed to go to the toilet until about 1 p.m. on 30 August before a court hearing. He remained handcuffed from 1 to 5 p.m. on 30 August 2014 during the entire court hearing and until his return to the police station. 42. The applicant’s representatives were not allowed to visit him. 43. The applicant was released at about 4.30 p.m. on 31 August 2014. 44. The Government submitted the floor plan of police station no. 9. It is apparent from the plan that there were three administrative detention cells, two of them measuring 7.55 sq. m and one measuring 6.5 sq. m. Each cell was equipped with two benches. There was no other furniture and no lavatory facilities in the cell. 45. The Government confirmed that the windows were blocked by metal screens with holes in them. 46. According to the police officers’ statements, the applicant was given food but refused to eat it. He preferred to eat food brought by his wife. He was allowed to go to the police station toilet on request. The applicant was not handcuffed.