CASE OF L.M. AND OTHERS v. RUSSIA
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Syria);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Syria);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Respondent State to take individual measures (Article 46-2 - Individual measures)
András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
6. The applicants are Syrian nationals or had their habitual residence in Syria. At the time of lodging their applications they were detained at a detention centre for foreign nationals in the town of Maloyaroslavets, Kaluga Region (ОСУСВИГ – “the detention centre”), run by the local Federal Migration Service (“FMS”). 7. The applicant L.M. (application no. 40081/14) was born in 1988. He entered Russia on 9 February 2013. He was detained on 14 April 2014. He is a stateless Palestinian who had his habitual residence in Syria. He was not in possession of a valid national ID at the time of detention, and his identity was established by an immigration officer in Russia in 2014. 8. The applicant A.A. (application no. 40088/14) was born in 1987. He entered Russia on 21 April 2013. He was detained on 15 April 2014. 9. The applicant M.A. (application no. 40127/14) was born in 1994. He entered Russia on 21 April 2013. He was detained on 15 April 2014 and has a brother, Mr Akhmad A., who received temporary asylum in Russia and is married to a Russian national, Albina A. 10. On 14 and 15 April 2014 (see Appendix) the applicants were detained by the police and officers of the FMS at a clothing factory in Maloyaroslavets. 11. On 15 and 16 April 2014 (see Appendix) the Maloyaroslavets District Court (“the District Court”) examined the applicants’ administrative files, found them guilty of administrative offences (breach of immigration rules and working without a permit) and ordered them to pay fines of between 2,000 and 3,000 Russian roubles (RUB) and their expulsion to Syria, in line with the procedure under Article 3.10 § 1 of the Code of Administrative Offences. The applicants all stated in court that they feared for their lives if returned to Syria and referred to information about the ongoing and widespread conflict there. The court found these statements to be general in nature and unsupported by any relevant evidence. The applicants also referred to the absence of work in Syria and the fact that in Russia they had been able to work illegally. The District Court then focused on the economic motives of their arrival and illegal stay. Pending expulsion the court ordered their detention at the detention centre. 12. The lawyer representing the applicants before the Court lodged appeals for all three of them, describing in detail the general situation in Syria and the danger of returning there, and citing and attaching the relevant country reports produced by the UNHCR and FMS. She also cited a circular letter issued by the Federal Bailiff Service on 30 August 2013 to its regional branches, according to which no entry was possible into Syrian territory in view of the hostilities and problems that would arise with the execution of court judgments ordering expulsion there. The lawyer argued, in detail, that the decisions to expel the applicants could not be implemented; in such circumstances their detention lost any purpose and became indefinite. The lawyer further cited an FMS circular letter of 23 January 2013 entitled “On the situation in Syria and the work with persons originating from Syria”, which stated that “in the current difficult political situation, when the Syrian authorities are unable to provide effective protection of their citizens from the illegal actions of the armed opposition ... most of the applicants ... have fled the country as a result of the armed conflict. ... Individuals who cannot not safely return [to Syria] and have a well-founded fear of ill-treatment, including torture, should be given temporary asylum”. The statements of appeal further referred to the fact that the applicants had sought asylum in Russia; their expulsion would therefore be contrary to the relevant legislation. The UNHCR Office in Moscow produced a letter to the Kaluga Regional Court (“the Regional Court”) in respect of L.M., reiterating its position in respect of returns to Syria and arguing that any decision relating to expulsion there while his asylum request was pending would be in breach of domestic and international legislation. Similar letters were produced in respect of the two other applicants. The applicants also referred to a decision of the Leningrad Regional Court taken earlier in 2014 relating to a Syrian national in a similar situation (see paragraph 72 below). 13. The Kaluga Regional Court rejected all three appeals on 27 May 2014, following which the expulsion orders entered into force. It stressed the applicants’ illegal stay in Russia and their reference to economic difficulties as their reason for departure from their home country. It found that the alleged danger to the applicants’ lives as a result of the ongoing conflict did not in itself constitute sufficient grounds to exclude expulsion in respect of those guilty of administrative offences in the sphere of immigration. 14. In respect of L.M., in a separate decision of the same date, the Regional Court refused to amend the expulsion order. The court noted that he had not applied for asylum in Russia until 21 May 2014, a fact which “did not affect the lawfulness of the decision taken by the District Court concerning the applicant’s administrative offence and expulsion”. 15. On 17 June 2014 the Kaluga Federal Bailiff Service asked the District Court to stay execution in respect of M.A., pointing out that the European Court of Human Rights had applied Rule 39 and therefore the expulsion could not be carried out at that time. On 30 June 2014 the District Court found that the Code of Administrative Offences did not provide for stays of expulsion as opposed to the payment of fines and dismissed the request. 16. On 4 July 2014 the District Court issued a similar decision in respect of L.M., pursuant to a request by the Bailiff Service on 1 July 2014. None of the parties were present at the hearing, including L.M. 17. It appears from the letter of 8 July 2014 sent by the Kaluga Federal Bailiff Service to the applicants’ lawyer that it was unaware at that date of the District Court’s decisions. From the same letter it appears that a similar request had been made for a stay of execution in respect of A.A. 18. Since 15 and 16 April 2014 the applicants have been detained at the detention centre. 19. According to the Government’s observations received in December 2014, A.A. escaped on 25 August 2014. An internal report was prepared by the head of the Kaluga FMS the same day, describing the events as follows: “In the early hours of 25 August 2014, between 3 and 4 a.m., a group of foreign nationals and stateless people detained pending administrative deportation from the [detention centre] escaped from the premises ... The group included ... [A.A.], a Syrian national, born on 15 January 1987 ... An investigation has established that the people used an unfinished ventilation shaft located between the ground and first floors of the building. Having reached the first floor, the people jumped out of the window onto a pile of construction rubbish and, having covered the surveillance devices ... with a blanket, left the grounds of the centre with the aid of construction materials stored in the courtyard. The exact circumstances of the escape are being established. An internal investigation is being held in respect of the staff who had allowed the seven foreign nationals to escape. The local police have been told to organise a search for the people who have escaped.” 20. The applicants’ representative claimed to have had no knowledge of the escape prior to receiving the Government’s observations, expressing her concern that they had not submitted the information earlier, for example when making their observations of 2 September 2014. 21. In reply to the Court’s further questions in this regard, in their observations of 24 April 2015 the Government explained that no administrative or criminal proceedings had been initiated, as an escape from a detention centre for foreign nationals pending deportation was not an offence under any legislation. While the police continued to search for the detainees, their whereabouts, including those of A.A., remained unknown. 22. The Government further submitted that since their observations had been based on the replies of the competent State authorities prepared on 4 and 8 August 2014, no information about A.A.’s escape had been provided at that stage. They also submitted that the detention centre had been under no obligation to inform detainees’ representatives of the escape, hence why it had not done so in A.A.’s case. 23. The applicants’ representative confirmed that she had not been aware of A.A.’s escape prior to the meeting with the two other applicants on 17 December 2014 and submitted that she had no knowledge of A.A.’s current whereabouts. 24. From the documents submitted by the Government in December 2014, it appears that A.A. sought refugee status in Russia on 5 March 2014 by applying to the Moscow Region FMS. On 11 March 2014 this request was accepted for consideration on the merits and the applicant was questioned and issued with an appropriate document. 25. On 26 March 2014 A.A.’s application for refugee status was dismissed. The decision of the FMS stated that he had submitted no information to support his claims of persecution in Syria. His family remained in that country and he could have used the “internal flight alternative” to another part of Syria, or claimed asylum in a transit country. He reasoned his request to remain in Russia by his wish to work there and did not therefore fall under the definition of refugee. 26. The applicant did not obtain a copy of that decision and did not appeal against it. 27. After their arrest the three applicants applied for refugee status. They submitted the relevant applications to the local FMS in Kaluga; M.A. and A.A. on 14 May 2014 and L.M. on 21 May 2014. 28. On 28 May 2014 the three applicants also submitted requests for temporary asylum in Russia, which were drawn up in Russian and translated by Z.A. 29. In June 2014 the three applicants were questioned by the Kaluga FMS. They indicated that the reasons for their departure from Syria were the war and danger to their lives. A.A. stated that he was from Aleppo and had lost contact with his family, parents and siblings after his departure in 2013. M.A. stated that he had fled Aleppo after his neighbourhood had been taken over by “terrorists” who had killed dozens of people there, including his close male relatives, which he had witnessed. He had also lost contact with his family after December 2013. L.M. had been in Damascus but had no right of return as he was a stateless Palestinian. He had also lost contact with the members of his family who had remained in Syria. All applicants stressed that they were afraid to go back because of the hostilities which had caused their departure, and said that they feared being forcibly drafted into the armed forces. 30. On 16 June 2014 the Kaluga FMS decided that their applications for refugee status should be considered on the merits and issued appropriate certificates to them. 31. In parallel proceedings, also in June 2014, the three applicants were questioned by the FMS in order to obtain temporary asylum in Russia. 32. On 17 July 2014 L.M. signed a paper in Russian stating that he had asked for his request for “temporary asylum in Russia dated 28 May 2014” not to be considered since he “intended to return to his home in Syria”. The paper was also signed by a translator, Z.A. 33. On the same date a similar paper was signed by A.A. which stated that “he and his wife intended to go to Turkey”. The paper was also signed by Z.A. 34. According to the Government’s observations of 3 December 2014, these requests served as the basis of the FMS decisions to terminate the proceedings in respect of these two applicants, both in respect of their request for refugee status and temporary asylum. No documents were submitted in this regard. 35. On 16 September 2014 the Kaluga FMS decided to refuse M.A.’s request for refugee status. It considered that he faced no threat of persecution on the grounds set out in the Law on Refugees. On 17 September 2014 the Kaluga FMS, for the same reasons, refused him temporary asylum. 36. On 28 November 2014 the Regional Court reviewed M.A.’s appeal against the decision not to grant him temporary asylum. He was not taken to the trial even though the decision stated that he had been notified, and he did not have a representative. A representative of the FMS appeared before the court, which briefly restated the reasons for the FMS decision to refuse the applicant both refugee and temporary asylum status and confirmed that there were no reasons to regard him as in need of protection. Neither the general situation in Syria nor the applicant’s submissions about the situation in Aleppo had been raised or discussed. This decision was sent to M.A. on 5 December 2014. It is unclear if he appealed against it. 37. On 30 September 2014 M.A. and L.M. submitted new written requests for refugee status, which were accepted for consideration by the Kaluga FMS on 7 October 2014. On 15 October 2014, however, both applicants signed papers in Russian stating that they had asked for their requests for “temporary asylum in Russia dated 28 September 2014” not to be considered. The papers stated that they had been translated and written by Z.A. 38. The Government, in their observations of 2 December 2014, explained that the contradictory position taken by L.M. prevented the FMS from considering his new application on the merits. M.A.’s new application was not considered either. 39. The applicants submitted that severe restrictions had been placed on them meeting with their representatives. As a result, despite numerous attempts and complaints, M.A. and L.M. only had one meeting with them on 17 December 2014. M.A. had one meeting with his brother and Albina A. on 22 October 2014, which lasted about ten minutes. A.A. did not meet with a representative prior to his escape from the detention centre (see paragraphs 20-23 above). 40. The applicants submitted copies of their exchange with various officials in the Kaluga FMS and prosecutor’s office regarding their detention and access to representatives. From these letters it appears that on several occasions the applicants’ two lawyers, Ms Golovanchuk and Ms Yermolayeva, a lawyer of the Kaluga Bar Association, Mr P.K., a member of the Kaluga branch of the Human Rights Centre Memorial who had assisted the applicants with their complaints, Ms Lyubov M.-E., as well as M.A.’s brother and his wife, wrote to these agencies regarding a lack of access to the detention centre and the conditions of detention of people detained there. Their exchanges may be summarised as follows. 41. On 3 March 2014 the head of the detention centre responded to Ms Lyubov M.-E., stating that visits by lawyers and human rights defenders were possible daily between 11.30 a.m. and 12.30 p.m. On 14 April 2014 the Kaluga FMS informed the regional prosecutor’s office that visits by representatives, relatives and human rights defenders were possible upon the written request of detainees, or upon the written request of their representatives or human rights defenders if accompanied by a written request by the detainee for legal assistance from them. Visits outside of normal visiting hours had to be agreed in advance with the detention centre administration, to ensure the proper functioning of the centre. If a detainee requested in writing to be represented by anyone, the centre would consider the issue of ensuring a visit from the representative, accompanied by a notary, to certify a power of attorney. 42. On 25 April 2014 L.M.’s lawyer wrote to the Kaluga regional prosecutor’s office. She pointed out that the applicant had been refused access to his representatives, and that the conditions of detention at the detention centre were harsher than for people who had been detained on criminal charges. Detainees were kept in their rooms for most of the day; they had no means of communication with anybody and could not contact each other or their representatives. The letter further stressed the absence of any flight connection with Syria and the impossibility of expelling the applicant there. 43. On 17 May 2014 the Kaluga FMS informed the regional prosecutor’s office that on 24 April 2014 Ms Lyubov M.-E. had asked to be allowed to meet with the three applicants and an Uzbek national, T. The staff of the centre had refused to allow her to meet with the applicants, since she had not had an interpreter present and could not communicate with them. She had attempted to pass documents in Russian to the applicants (complaints against the domestic court decisions) through T., but they had been found by the detention centre staff. Ms Lyubov M.-E. had been reminded to come back accompanied by an interpreter. Furthermore, the detainees had signed documents refusing to meet with Ms Lyubov M.-E. since she had asked them for money for her services. 44. On 26 May 2014 the head of the NGO Civic Assistance wrote to the Moscow FMS. She pointed out that the applicants’ confinement in the detention centre appeared unlawful in the absence of any time-limit or purpose, since the expulsion could not be carried out. She further pointed to the fact that the applicants had submitted applications for temporary asylum, and that their conditions of detention were inhuman and degrading, since the food was of poor quality and they had little access to fresh air, outdoor exercise, meaningful activities or information. The letter further stated that the detention centre staff had threatened and harassed detainees, and that the applicants had been pressed to withdraw their applications for asylum. The letter also referred to the difficulties in meeting the inmates. 45. On 10 June 2014 the applicants’ lawyers submitted a letter to the Prosecutor General’s Office, with copies to the Kaluga regional prosecutor’s office and FMS. They pointed out that the applicants’ conditions of detention amounted to inhuman and degrading treatment. M.A. had been diagnosed with pneumonia, but had not received adequate medical help. The applicants had been unable to meet with their relatives and representatives. The food was of poor quality, consisted mostly of cereals and was often served cold. The applicants complained that they had been harassed and threatened by the staff, threatened with reprisals if they complained, and encouraged to withdraw their applications for asylum and discharge their representatives. In the absence of any real possibility of expelling the applicants to Syria, their detention had turned into an open-ended punishment without any possibility of review. 46. On 11 June 2014 the Kaluga FMS wrote to the Kaluga regional ombudsman, noting that on 27 May 2014 the Regional Court had rejected the applicants’ appeals (see paragraph 13 above) while they were assisted by a lawyer and interpreter. In their letter of 29 July 2014 the Kaluga FMS informed the regional prosecutor’s office that the detainees’ rights had not been infringed. The court hearing of 30 June 2014 relating to staying execution of the expulsion order (see paragraph 15 above) had not required the applicants’ presence, and an interpreter had been invited to the detention centre on 17 July 2014, who had translated the court decision to the applicants. On the same day M.A. had decided to withdraw his application for temporary asylum and refuse any further assistance from Ms Lyubov M.-E., signing the relevant documents. 47. Writing to the applicants’ lawyer on 29 July and 12 August and the regional prosecutor’s office on 30 July 2014, the Kaluga FMS provided information about the medical assistance given to the applicants. In respect of M.A., the letters stated that he had been examined by a doctor upon arrival, that an interpreter had assisted him on 9 June 2014 in communicating with the detention centre doctor, who had administered treatment, and that on 14 and 25 June he had again been examined by a doctor and sent for a chest X-ray. His condition had been described as “satisfactory” and improved. The letters went on to state that the detention rooms had a ventilation system installed, that the shower and toilets, although not in the rooms, were undergoing renovation so that they would all be on one floor, that there was a courtyard for walks, and that the detention centre staff had treated detainees with respect and never allowed any behaviour which could escalate into arguments. The staff included a doctor, a psychologist and a medical disinfection specialist. On 17 July 2014 M.A. had signed a paper refusing any further assistance from Ms Lyubov M.-E. On the same day the remaining two applicants had also expressed their wish to withdraw their requests for asylum. 48. On 22 October 2014 M.A. signed a letter in Russian addressed to the Kaluga FMS stating that its officers had forced him to sign documents in Russian he could not understand and which, as it turned out, had cancelled his asylum request and prevented him meeting with his representative, Ms Lyubov M.-E. As a result, he had not met with her, and the only meeting he had attended had been with his brother and sister-in-law on 22 October 2014, which had only lasted about ten minutes. The applicant further stated that he and L.M. were under constant surveillance, had received threats from the staff and were unable to write and send letters or make complaints. The treatment was allegedly because of their application to the Court. The papers signed by the applicants about their unwillingness to have their asylum requests considered had been obtained under duress and they had had no idea what they had signed. The applicant’s requests to meet with his relatives and representatives had not been granted. He further complained that he had not been given any personal hygiene products and could not shave or cut his hair, and that he and L.M. were being kept in isolation and had very little contact with other detainees, allegedly because they had applied to the Court. They had also been told that their expulsion to Syria would take place anyway and that their complaints would have no effect. The letter ended with a request to be allowed unrestricted meetings with his relatives and representatives, including Ms Lyubov M.-E. 49. On 27 October 2014 Albina A., M.A.’s sister-in-law, wrote to the Moscow-based human rights NGO Civic Assistance. On the same day she and her husband Mr Akhmad A., M.A.’s brother, produced affidavits to the applicant’s lawyers in Moscow. From these documents it appears that both brothers had left Aleppo in Syria because of the hostilities there, that their neighbourhood had been destroyed, that many of their relatives had been killed, and that they had no contact with the surviving family members. They had been unable to meet with M.A. at the detention centre, with the exception of one brief visit on 22 October 2014. The visit had lasted about ten minutes and a detention centre officer had been present. When M.A. had started to write down a complaint in Arabic, it had been taken away by the officer who had said that it was not allowed. M.A. had not been aware that he had signed a withdrawal of his asylum request prior to the meeting with his relatives. He had said that he had signed the papers under pressure from the FMS staff. His brother had managed to covertly obtain his signature on a complaint and a request to be allowed visit from his relatives and representative, Ms Lyubov M.-E. M.A. had also told them that on 21 October he had been visited by an FMS officer from Kaluga (Ms Marina Vladimirovna), accompanied by an interpreter, who had told him that he would be expelled to Syria as soon as his travel documents were issued by the Syrian Embassy. 50. On 27 October 2014 Mr P.K. of the Kaluga Bar Association submitted a complaint to the Kaluga regional prosecutor’s office. He stated that he had arrived at the detention centre and had produced an order for representing M.A. and a copy of his bar membership card that day; however, its staff had refused to allow him to meet with his client, referring to the absence of any signed agreement to represent him or permission for the meeting issued by the Kaluga FMS. The FMS had further informed him that the review of his request would take a month. Mr P.K. referred to the provisions of domestic legislation which permitted a lawyer to meet with his client and asked for his client’s right to legal aid to be restored. 51. On 17 December 2014 lawyers Ms Golovanchuk and Ms Yermolayeva met with the two applicants and took affidavits from them regarding their detention and asylum request situation. 52. L.M. stated that he was detained in a spacious room with three other detainees; it had a toilet and running cold water. A hot shower could be taken daily on another floor upon request. The room was clean and had sufficient natural and artificial lighting, which was switched off during the night. There were no hygiene problems with insects and the bed linen was changed once a week. Detainees spent their time in their rooms, day and night, except when they went for walks. There were four nurses who administered medical treatment as necessary. He insisted that he wanted his asylum claim to be considered and unrestricted access and the ability to communicate with his representative, including in writing. When asked, L.M. stated that he had been assaulted by the staff on 27 August 2014 after some of the detainees had escaped; one of the wardens had twisted his hand painfully. 53. M.A. stated that while at the detention centre, he had been beaten twice, in July 2014, when the staff had found him to be in possession of the Koran, and on 25 August, when one of the Syrian detainees had escaped. He had been beaten so that he would disclose details about the escape. After the beatings he had stayed in bed for three days and could not eat. He stated that he had not been allowed to make complaints or send letters, and had been denied access to his representatives and relatives. He had not been allowed to attend the court hearing on 28 November 2014 (see paragraph 36 above) even though he had asked to. He also confirmed that he had wanted to meet with his representatives, including Ms Lyubov M.-E. and had expected his claim for asylum to be processed. He stated that the FMS staff had threatened him and told him that his complaints would not help and that he would be spending two years in prison anyway. 54. Following these submissions, on 17 December 2014 the applicants’ lawyers wrote a letter to the Kaluga regional prosecutor’s office pointing at the illegal nature of the applicants’ detention, since their expulsion could not be carried out and there were no terms or possibility of review of the detention. They also stressed that the applicants’ conditions of detention were similar to people in pre-trial detention, while the restrictions on visits and correspondence were illegal and in direct contradiction to the information contained in the letters from the detention centre administration. The letter stressed that the absence of contact with relatives, lawyers and representatives amounted in itself to inhuman treatment since it had serious psychological effects on the applicants. 55. On the same day M.A. signed a request addressed to the Kaluga FMS to be allowed meetings with his representatives, Ms Golovanchuk, Ms Yermolayeva and Ms Lyubov M.-E., as well as his brother Mr Akhmad A. and sister-in-law Ms Albina A. 56. In reply to the Court’s additional questions, in April 2015 the Government submitted more detailed information about the applicants’ conditions of detention. 57. On 30 March 2014 the head of the Kaluga FMS ordered that meetings with people detained in the detention centre could be authorised for close relatives by its head upon presentation of documents proving they were related. Visits by representatives and human rights defenders could be authorised by the head of the Kaluga FMS, and the detainee could submit a written request to the head of the detention centre. 58. According to the detention centre’s daily routine issued by its head on 15 November 2014, daily walks were to last no less than an hour per inmate. An hour a day was set aside for telephone contact and another hour between 11.30 a.m. and 12.30 p.m. for meetings with visitors and receiving parcels. An hour every day was set aside for meetings with the administration. 59. The Government submitted extracts from the applicants’ medical files, from which it appears that they had been examined upon arrival at the centre and found to be in good health. A.A. had been treated for bronchitis and pneumonia in June 2014, and on 14 July 2014 his health was improving. He had also had an incident of high blood pressure on 10 June, which had been successfully treated. L.M. had been diagnosed with pulpitis and gastric problems and had received treatment. He had seen the doctor on five occasions between 10 May 2014 and 17 February 2015. M.A. had not consulted the medical staff. 60. According to the Government, L.M. and M.A. were detained in room no. 15 on the first floor of the two-storey building, which measured 47 square metres and accommodated six people. A toilet was accessible from the room, and there was a shared bathroom on the ground floor. The outdoor exercise yard measured 180 square metres. The Government provided photos of the rooms, sanitary facilities, canteen and the yard.