CASE OF Z.A. AND OTHERS v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-f - Prevent unauthorised entry into country);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)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicants found themselves staying in the transit zone of Sheremetyevo Airport of Moscow. The details of each application are set out below. 6. The applicant is an Iraqi national who was born in 1987. 7. The applicant moved from Iraq to Turkey in 2013 seeking employment. He later moved to China to look for a job. 8. On 24 July 2015 the applicant travelled by air from China to Turkey. The journey consisted of two legs: Shanghai to Moscow and Moscow to Ankara. The Turkish authorities denied him entry for reasons that the applicant did not specify in his application. The applicant was sent to Moscow on 27 July 2015. On arrival at Sheremetyevo Airport, he was not allowed to pass through passport control. 9. From 27 July 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 10. On 29 July 2015 the applicant applied for refugee status in Russia, arguing that in Iraq he would run the risk of persecution by militants belonging to the Islamic State of Iraq and al-Sham (ISIS – also known as Islamic State of Iraq and the Levant) because he had refused to join them, as well as by Iraqi government forces for the reason that he practiced the Sunni form of Islam. 11. On 19 September 2015 the applicant received a visit from the Moscow regional department of the Federal Migration Service (“the Moscow Region FMS”) and was interviewed in the transit zone. The Moscow Region FMS did not issue the applicant with a certificate to confirm that his refugee status application deserved to be examined on the merits (“examination certificate”). 12. On 10 November 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. The applicant appealed to the higher migration authority (the Federal Migration Service of Russia – “the Russian FMS”), asking it to overrule the decision of 10 November 2015, to issue him with an examination certificate, and to allocate him to a centre for the temporary detention of aliens. 13. On 29 December 2015 the Russian FMS dismissed the applicant’s appeal on the grounds that he had not received any direct threats targeted against him personally and that “the applicant [had not submitted] convincing evidence that he might become a victim of persecution by ISIS militants or Iraqi authorities on the grounds contained in the definition of the term ‘refugee’, including his religion”. The issue of the applicant’s stay in Sheremetyevo Airport was not addressed in the decision. 14. The applicant’s lawyer was served with the decision of 29 December 2015 on 23 January 2016. 15. On 1 February 2016 the applicant lodged an appeal against the decisions of 10 November and 29 December 2015 with the Basmannyy District Court of Moscow. He specifically argued that the migration authorities had not complied with the procedural rules by failing to interview him speedily or to issue him with an examination certificate, and that he had spent more than six months in the transit zone of Sheremetyevo Airport in conditions contrary to the guarantees of Article 3 of the Convention, without access to shower and other amenities. 16. On 17 March 2016, having been resettled by UNHCR, the applicant left for Denmark. 17. On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. On the same date the applicant’s lawyer lodged a brief statement of appeal («краткая апелляционная жалоба»), pending receipt of a reasoned judgment in written form. By 5 July 2016 (the date on which the applicants submitted their written observations to the Court), no such reasoned judgment had been issued. 18. The applicant was born in 1988. He holds a passport issued by the Palestinian Authority. 19. Between April 2013 and August 2015 the applicant was in Irkutsk, Russia. It appears that initially he had held a valid entry visa but that he did not take steps to obtain permission to reside in Russia after its expiry. 20. In August 2015 the applicant travelled from Russia to the Palestinian territories via Egypt. For unknown reasons he took a flight from Cairo back to Moscow on 23 August 2015. Because the applicant did not have a valid visa for Russia, he was denied entry to the country by the border guard service. 21. From 23 August 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. The applicant sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 22. Three weeks after his arrival at Sheremetyevo Airport, the applicant lodged an application for refugee status. In the course of the ensuing proceedings he mentioned that he had left Palestine because of the ongoing hostilities in the Gaza Strip and the West Bank, as well as a lack of employment and the poor economic situation. 23. On 1 December 2015 the Moscow Region FMS dismissed the applicant’s refugee status application as ill-founded. The applicant’s lawyer appealed to the Russian FMS, arguing that the applicant did not have any possibility to return to his home in the Gaza Strip, that the Moscow Region FMS had failed to assess his personal situation and the risk he would face if returned to Palestine, and that the Moscow Region FMS, in breach of the Refugees Act (FZ-4528-1 of 19 February 1993), had not issued him with an examination certificate. 24. On 31 December 2015 the Russian FMS dismissed the appeal for the reason that the applicant had “failed to provide evidence confirming that he runs a higher risk of becoming a victim of the Palestine-Israel conflict than the rest of the population of the Palestinian National Autonomy”. The applicant’s lawyer was informed of that decision on 15 January 2016. 25. On 1 February 2016 the applicant lodged an appeal against the migration authorities’ decision with the Basmannyy District Court of Moscow. 26. On 13 February 2016 the Egyptian authorities opened the Rafah crossing point to Gaza. The applicant agreed to take a flight to Egypt and left the transit zone of Sheremetyevo Airport. 27. On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. The applicant’s lawyer lodged a brief statement of appeal on the same date, pending receipt of a reasoned judgment in written form. By 5 July 2016, no such reasoned judgment had been issued. 28. The applicant is a Somalian national who was born in 1981. 29. In 2005 the applicant moved from Somalia to Yemen, where he was granted refugee status. In 2015 he decided to leave Yemen. 30. The applicant travelled by air to Havana, Cuba, a journey that consisted of three legs: Sana’a to Istanbul, Istanbul to Moscow, and Moscow to Havana. On 13 March 2015 the applicant landed in Moscow for the first time; he then continued his journey to Havana. 31. On 9 April 2015 the applicant was deported from Cuba to Russia. The Russian border guard service did not allow him to pass through passport control. 32. From 9 April 2015 onwards, the applicant has been staying in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 33. On 10 April 2015 the applicant lodged an application for refugee status, arguing that he had fled Somalia in 2005 because he had received threats from members of a terrorist group. 34. On 1 July 2015 the Moscow Region FMS interviewed the applicant. However, they did not issue him with an examination certificate. 35. On 1 October 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. 36. On 17 October 2015 the applicant’s brother was killed in Mogadishu, Somalia. 37. On 7 December 2015 the Russian FMS dismissed an appeal by the applicant against the decision of 1 October 2015. 38. On 22 December 2015 the Moscow Region FMS refused to grant the applicant temporary asylum. On 10 February 2016 the Russian FMS upheld that decision. 39. On 19 May 2016 the Basmannyy District Court of Moscow dismissed an appeal lodged by the applicant against the decisions by the Moscow Region FMS and the Russian FMS to dismiss his application for temporary asylum. It reasoned, in particular, that the applicant had not proved that the terrorists who had threatened him in 2005 represented any danger more than ten years later and that, should such threats persist, he “has not been deprived of an opportunity to avail himself of the protection of his State of nationality [– that is to say] to apply to the law-enforcement agencies of the Republic of Somalia [for protection].” On the same date the applicant’s lawyer appealed. On 20 September 2016 the Moscow City Court dismissed the appeal. On 6 February 2017 it dismissed in the final instance the applicant’s complaint about the refusals to grant him refugee status. 40. Having received the final rejections of his applications from the Russian authorities, the applicant decided that he did not have any chance of obtaining asylum in Russia. On 9 March 2017 he left for Mogadishu, Somalia. 41. The applicant, Hasan Yasien is a Syrian national who was born in 1975 in Aleppo. 42. On 4 July 2014 the applicant arrived in Moscow from Beirut, Lebanon, holding a business visa valid until 25 August 2014. 43. On 10 September 2014 he applied for temporary asylum to the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”), claiming to have fled Syria because of the ongoing civil war there. That application was refused on 8 December 2014. 44. It appears that the applicant remained in Russia despite that refusal. 45. On 18 August 2015 the applicant took a flight from Moscow to Antalya, Turkey. The Russian border guard service seized his passport and handed it over to the aircraft crew. The Turkish authorities denied the applicant entry to the country and sent him back to Moscow on 20 August 2015. Upon the applicant’s arrival, the Russian authorities sent him back to Antalya. The Turkish authorities then returned the applicant to Moscow. 46. On 8 September 2015 the applicant took a flight to Beirut, but the Lebanese authorities denied him entry to the country and sent him back to Moscow. The Russian border guard service did not allow him to pass through passport control. 47. From 9 September 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. He described the conditions of his stay in the transit zone as follows. The applicant slept on a mattress on the floor in the waiting area of the airport, which was constantly lit, crowded and noisy. He received basic food, clothing and sanitary wipes once a week from the Russian office of UNHCR. Given the absence of any refrigerator or kitchen, his rations were extremely limited. Throughout the whole period of his stay in the transit zone the applicant did not have access to a shower. 48. The applicant applied to the Moscow Region FMS for temporary asylum. On 21 December 2015 the Moscow Region FMS dismissed the request. 49. On 4 February 2016 the Russian FMS dismissed an appeal by the applicant against its refusal of 21 December 2015 to grant him temporary asylum. It noted, in particular, that there were regular flights from Moscow to Damascus, from where Syrian nationals could travel to other parts of the country, and that “many Syrians wish to leave the country not only because of a fear for their lives but, in large part, because of the worsening economic and humanitarian situation”. 50. On 7 April 2016 the applicant once again tried to lodge an application for refugee status through the border guard service. He received no response. 51. On 11 April 2016 the applicant complained to the Zamoskvoretskiy District Court of Moscow about the refusal of the Moscow Region FMS and Russian FMS to grant him temporary asylum and about his allegedly unlawful detention in appalling conditions in the transit zone of Sheremetyevo Airport. 52. On 11 May 2016 the applicant was resettled by UNHCR and left for Sweden. 53. On 21 July 2016 the applicant’s lawyer submitted additional documents to the Zamoskvoretskiy District Court of Moscow in support of the applicant’s claims regarding the risks that he would face if returned to Syria. The outcome of the proceedings is unknown.