CASE OF CHKHIKVISHVILI v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion)
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
5. The applicant was born in 1960 in the Georgian SSR of the USSR. He had lived in Russia since 1995. On 23 November 2007 his Georgian nationality was revoked by a decree of the President of Georgia. 6. In 1998, 2007 and 2009 the applicant was convicted of drug-related offences in Russia and given a custodial sentence. The most recent sentence was set to expire on 11 October 2012. 7. On 8 October 2012 the Ministry of Justice issued a decision declaring that the applicant’s presence in Russia would be undesirable upon his release (the “exclusion order”). 8. On 11 October 2012 the Federal Migration Service (FMS) issued a deportation order against the applicant and asked the Abakan Town Court of the Khakassiya Republic to authorise the applicant’s placement into the detention centre for aliens pending his deportation. On the same day the Town Court granted the request, holding that the applicant should remain in the centre “until his deportation”. 9. On 1 November 2012 the Abakan Town Court, and on 16 January 2013 the Supreme Court of the Khakassiya Republic, confirmed the validity of the exclusion and deportation orders. On 8 April 2013 the applicant’s request for leave to appeal was rejected. 10. On 7 November 2012 the Supreme Court of the Khakassiya Republic heard the applicant’s appeal against the decision on his placement in custody. The Supreme Court upheld the detention order but limited it in time until 31 December 2012. 11. On 14 December 2012 the Abakan Town Court examined an application for an extension of the time-limit. Noting that the FMS had not yet received a response from the Georgian Interests Section as to the applicant’s nationality, it extended the time-limit until 1 July 2013. 12. The applicant filed an appeal. He submitted that, upon serving the sentence, he should have been given an opportunity to leave Russia of his own will but that had been refused to him. 13. On 24 January 2013 the Supreme Court of the Khakassiya Republic rejected the appeal. It further held that the Town Court had erred in fixing a specific time-limit for the applicant’s detention and that the applicant should remain in detention “until his deportation”. On 8 April 2013 the applicant’s request for leave to appeal was rejected. 14. On 1 March, 16 October and 23 November 2012 the FMS inquired the Georgian Interests Section at the Embassy of Switzerland in Moscow whether or not the applicant was a Georgian national. On 5 February 2013 the Georgian Interests Section replied that the applicant’s Georgian nationality had been revoked by the President’s decree on 23 November 2007. 15. On 30 January and 19 February 2013 the applicant asked the FMS to consider his deportation to Turkey where he owned real estate and where he had lived between 2001 and 2005. On 27 February 2013 the FMS applied for assistance to the Consular Department of the Ministry of Foreign Affairs (MFA). However, on 16 May 2013 the MFA explained that it was unable to issue laissez-passer documents to foreign nationals and referred the FMS to the Turkish Embassy in Moscow. 16. In June 2013 the FMS established a working group on the applicant’s deportation. On 1 July 2013 the group sent a request to the Turkish Embassy and also asked the Georgian Interests Section whether the President’s decree revoking the applicant’s Georgian nationality could be quashed in connection with the Georgian amnesty act of 13 January 2013. 17. The applicant complained to a court about an excessive length of his detention. He submitted that he had been spent more than eight months in custody owing to the FMS’s failure to act diligently in the deportation proceedings. On 26 July 2013 the Abakan Town Court agreed with the applicant’s claim, noting that more than six months had lapsed between a first inquiry to the Georgian Interests Section about the applicant’s nationality dated 1 March 2012 and the second inquiry dated 16 October 2012, that no information about any action by the FMS in the period between 27 February and 1 July 2013 had been submitted, and that a request to the Turkish Embassy had been sent more than forty-five days after receiving the MFA’s explanation. The Town Court pronounced unlawful the FMS’s failure to act but refused to fix a time-limit for the applicant’s detention, referring to the Supreme Court’s judgment of 24 January 2013 (see paragraph 13 above). 18. In the meantime, Georgian counsel for the applicant’s family challenged the President’s decree revoking the applicant’s Georgian nationality in the Tbilisi City Court. Hearings were held on 26 September and 11 and 22 October 2013. On 11 November 2013 the City Court granted the claim and set aside the decree. That decision was upheld on appeal on 10 January 2014. 19. On 24 February 2014 the applicant obtained Georgian passport. On 3 March 2014 he was deported from Russia.