CASE OF ADEISHVILI (MAZMISHVILI) v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1975 and lives in the Ivanovo Region. 6. According to the applicant, in 1991, at the age of fifteen, he moved to Russia from Georgia with his parents. In 1998 he settled in Shuya, Ivanovo Region, whereas his parents moved back to Georgia. 7. On 18 November 1999 the Shuya Town Court of the Ivanovo Region found the applicant guilty of extortion and theft of a passport, and sentenced him to three years and one month’s imprisonment. According to the applicant, in order to spare his mother’s feelings, he told the prosecuting authorities that his name was Shermandin Goderziyevich Mazmishvili. On 4 June 2001 the applicant was released on parole. Upon release he was issued with an ID card in the name of Shermandin Goderziyevich Mazmishvili. 8. On 26 April 2005 the Town Court found the applicant guilty of theft and sentenced him to three years’ imprisonment. Again he claimed that his name was Shermandin Goderziyevich Mazmishvili and presented the relevant ID card. On 1 June 2007 the applicant was released on parole. 9. The applicant was in a relationship with Ms K. On 29 February 2008 Ms K. gave birth to a girl. On 21 September 2009 the applicant was recognised as the girl’s father. On 22 September 2009 the applicant and K. got married. On 20 December 2011 Ms K. gave birth to the couple’s second daughter. According to the Government, Ms K. and her two daughters are Russian nationals. 10. According to the Government, on 19 June 2007 the applicant was found administratively liable for failing to have his residency in Russia duly authorised. 11. On 26 June 2007 the applicant was registered as a migrant under the name of Mazmishvili. The registration remained valid until 26 October 2007. 12. It appears that on an unspecified date the applicant asked the Russian migration authorities to issue him with a Russian passport indicating that his name was Shota Petrovich Adeishvili. Following their refusal, the applicant lodged a claim with the Digora District Court of the Northern Osetiya and Alaniya Republic, asking the court to confirm that he had been residing permanently in Russia since 1991. 13. On 30 October 2007 the District Court granted the applicant’s request. The court based its findings on the applicant’s birth certificate in the name of Shota Petrovich Adeishvili submitted by him, a certificate issued by the Digora municipal authorities and the testimony of Ms G., stating that the applicant had been renting a flat from her since 1991. 14. On 8 July 2008 the applicant received a Russian passport in the name of Shota Petrovich Adeishvili. 15. On 10 February 2010 the regional migration service asked the District Court to quash the judgment of 30 October 2007 and remit the matter for new consideration. 16. On 17 March 2010 the District Court quashed the judgment of 30 October 2007, noting that the certificate confirming the applicant’s residence in Digora had not in fact been issued by the town administration. The matter was remitted for fresh consideration. 17. On 31 March 2010 the District Court noted that the applicant, who had been duly notified of the date and time of the court hearing, had failed to appear in court on two occasions. The Court left the matter without consideration on the merits and discontinued the proceedings. The applicant did not appeal. 18. On 18 April 2010 the migration service terminated the applicant’s Russian citizenship and invalidated his passport. According to the applicant, the migration services transmitted the case file to the prosecuting authorities for further inquiry. He did not inform the Court of the inquiry’s outcome. 19. On 8 July 2010 the applicant was arrested and taken to a police station where he spent the whole day. His passport was confiscated. On the same day an expert from the regional department of the interior confirmed that the applicant’s fingerprints corresponded to those belonging to Shermandin Goderziyevich Mazmishvili. 20. In the evening of 8 July 2010 the applicant was taken to the Shuya Town Court, which started the hearing at 11 p.m. The applicant was represented by a State-appointed lawyer. The Town Court considered that the applicant was Shermandin Goderziyevich Mazmishvili. It found that, as a person without citizenship, he had failed to have his residency in Russia duly authorised. It therefore imposed a fine on him and ordered his expulsion from Russia to Georgia. The court also held that the applicant should be remanded in custody pending expulsion until 8 September 2010. In particular, the court noted as follows: “When deciding whether to expel Sh. G. Mazmishvili and taking into account that the defendant has a family and a minor child, the court sees no reason not to expel [him] in view of the offences he has committed in Russia, his unlawful acquisition of a Russian passport and his lack of employment.” 21. The applicant appealed against the judgment of 8 July 2010 alleging, inter alia, that the State-appointed lawyer had not carried out his defence effectively, and that the court had failed to provide him with a copy of the decision of 17 March 2010 or a record of his own questioning of 14 September 1999. 22. On 26 July 2010 the Ivanovo Regional Court upheld the judgment of 8 July 2010 on appeal. The applicant was represented by counsel of his own choosing. 23. On 18 August 2010 the police sent the documents concerning the applicant’s expulsion to the Georgian authorities. 24. On 30 August 2010 the President of the Regional Court upheld the judgments of 8 and 26 July 2010. 25. It appears that the regional migration service could not prepare the documents necessary to expel the applicant to Georgia and asked the Town Court to extend the applicant’s detention pending expulsion. 26. On 6 September 2010 the Town Court extended the applicant’s detention until 7 October 2010. The court noted that the Georgian authorities had not yet prepared the documents necessary for the applicant’s expulsion to Georgia. The court considered that the applicant, if released, might abscond or fail to comply with the expulsion order. The applicant’s detention was repeatedly extended by the Town Court. 27. On 3 January 2011 the Georgian authorities informed the regional migration service that a real Shermandin Goderziyevich Mazmishvili was residing in Georgia and it was not possible to issue the requested documents in that name for the applicant’s expulsion to Georgia. 28. On 7 February 2011 the Town Court ordered the applicant’s release. Referring to the information supplied by the Georgian authorities, the court considered that it was not possible to expel the applicant under the name of Mazmishvili. 29. According to the Government, the applicant has not been expelled. He has no document confirming his ID, and the Russian authorities have not established his identity. 30. According to the applicant, the Town Court, when deciding to detain him pending expulsion, took into account a certificate prepared by police captain P. on which it was noted that the applicant “had been involved in car thefts, belonged to the Shuya organised criminal group ... [and] was a drug dealer.” 31. Despite a complaint lodged by the applicant that P. had knowingly disseminated false information about him, on 18 August 2010 the prosecutor’s office refused to institute criminal proceedings against P. 32. From 9 July 2010 to 7 February 2011 the applicant was held in a special detention centre in Ivanovo. 33. According to the Government, all the inmates detained with a view to expulsion were held in cells nos. 2, 3 and 4. During the period of the applicant’s detention, the cell population varied from three to sixteen persons in all three cells. On average, the number of persons detained in a cell was four to five. 34. Each detainee was provided with a mattress, a pillow, sheets and a blanket. The sheets were changed on the days the applicant was allowed to take a shower. According to the relevant ledger, the applicant took showers on 9, 21 and 29 July, 4, 14, 24 and 30 August, 7, 13, 27 and 30 September, 1, 12, 15, 22 and 29 November, 6, 13, 20 and 27 December 2010, and on 13, 19 and 25 January and 1 February 2011. 35. Each cell had a window opening onto a hallway. The window was covered with a metal grill. The light coming from the hallway was sufficient for reading. The window was periodically kept open to ensure proper ventilation of the cell. There was a table and a bench with seating for four persons in each cell. Both the table and the bench were fixed onto the floor. 36. The cells where the applicant was detained from 9 July to 30 September 2010 were not equipped with a toilet. The detainees were taken out of the cell at least twice a day to use the toilet in the building. During the nighttime the inmates had to use buckets placed in the cells. The buckets were emptied and disinfected daily. In September 2010 toilets and wash sinks were installed in all cells of the special detention centre. They became operational in October 2010. 37. Food was provided three times a day. Breakfast consisted of hot tea, sugar and a pastry; lunch comprised of soup, meat or fish with a side dish, and tea with sugar or a fruit drink. The applicant also received food parcels from his family and friends. 38. According to the applicant’s file, he declared a hunger strike twice. Each time he was examined by a paramedic. On a number of occasions ambulance doctors attended to the applicant. 39. The special detention centre had an exercise area measuring 4.66 m by 3.7 m covered with a metal grill. The detainees had one hour’s outdoor exercise daily. 40. The applicant was allowed to telephone his family on several occasions. The internal regulations did not provide for the right to a family visit. 41. The applicant provided the following information as regards his detention in the special detention centre: 42. Prior to the refurbishment of the special detention centre, there had been no toilets or wash sinks in the cell. The inmates had had to use a bucket placed in the cell. It had been emptied twice a day. The inmates had been allowed to use toilets outside the cell twice a day. The toilets had offered no privacy. Six to eight inmates had been taken simultaneously to the lavatory and had had to use the toilet in front of the others waiting for their turn. 43. The toilets installed in the cells offered no privacy either. Only cell no. 8 had a one-metre high partition separating the toilet from the living area of the cell. 44. The applicant did not contest the Government’s submissions as regards the frequency of the showers he had been allowed to take. According to him, the hot water had run out after the first ten minutes. Each time the inmates had had from fifteen to twenty-five minutes to take a shower and to do their laundry. They could use only cold water for the laundry. The sheets, which were old and ragged, had been changed every two weeks. 45. The windows in the cell were covered by two sets of metal bars on both sides. Access to daylight was insufficient. The table and the bench allowed for two persons to eat. The rest of the inmates had to eat sitting on their beds. In cell no. 3 the applicant was given a mattress that was infested with lice. 46. Cell no. 9, which was unofficially called “a disciplinary cell”, had no windows. During the four days the applicant spent in that cell, he was not taken out for outdoor exercise. 47. The daily outdoor exercise lasted thirty minutes and took place in a yard measuring 12 square metres. 48. The applicant had nothing to do while detained at the special detention centre. There was no library, television or radio. He was not allowed to subscribe to a newspaper or a magazine. 49. Breakfast was served at 7 a.m., lunch was served at 3 p.m. and dinner, if any, was served at 5 p.m. Breakfast consisted of a piece of white bread, a mug of hot water and a piece of sugar. No spoon was provided. For lunch inmates received soup with an unpleasant odour and taste, a minced meat cutlet and a piece of rye bread. For dinner they were given a burger and cabbage. The meals were the same every day. Because of the applicant’s condition, he could not eat any of the food served. Drinking water was not provided at all. The foodstuff sent by the applicant’s family quickly perished as no fridge was provided and the applicant had to store the food under his bed.