CASE OF S.K. v. RUSSIA
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 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Extradition);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court;Review of lawfulness of detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
5. The applicant was born in 1986. Since February 2015 he has been kept in a detention centre for foreign nationals in the town of Makhachkala, Dagestan Republic, Russia. 6. The applicant arrived in Russia in October 2011. He was in possession of a visa declaring the purpose of his visit as business. The applicant’s visa was due to expire in October 2012. However, the visa allowed the applicant to stay in Russia for no longer than ninety days in the course of a single visit. As submitted by the Government, he was therefore expected to leave Russia in early 2012. 7. The applicant did not leave and started to live together with Ms B., a Russian national. In November 2013 they had a child together. In April 2014 they married. 8. In the meantime, on 15 and 19 February 2013 the applicant was found guilty of an offence under Article 18.10 of the Code of Administrative Offences (CAO), which provided that a foreigner could be punished for unlawful employment activities in Russia. 9. By judgment of 26 February 2015 the Sovetskiy District Court of Makhachkala found the applicant guilty of an offence under Article 18.8 § 1.1 of the CAO (see paragraph 24 below), of remaining in Russia after the expiry of the visa. It sentenced him to a fine and a penalty of forcible administrative removal (принудительное административное выдворение) from Russia. The District Court held as follows: “Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with or without administrative removal from Russia ... The subsidiary penalty of administrative removal from Russian may be imposed with due regard to the information that confirms the actual need to impose such a penalty on the defendant, as well as the information that confirms the proportionality of this penalty as the only acceptable measure for achieving a balance between the public and private interests at stake ... The defendant has no legal grounds for remaining in Russia. If a fine is imposed, the defendant will add himself to the group of illegal labour immigrants who do everything to avoid compliance with the Russian migration legislation. The penalty of administrative removal is also necessary for the sake of national security, to avoid the spread of various infectious diseases such as HIV, tuberculosis and leprosy, and to ensure the optimal balance of labour resources and in order to support, as a matter of priority, the employment of Russian nationals ...” 10. In the same judgment the District Court ordered that, while awaiting enforcement of the administrative removal, the applicant be placed in a special detention facility for foreigners in the town of Makhachkala. 11. Lawyer D. lodged a statement of appeal on behalf of the applicant against the judgment of 26 February 2015. It appears that the applicant raised arguments relating to his family life in Russia; it is unclear whether he raised any argument relating to a risk to his life and physical integrity in the event of enforcement of the penalty of forcible removal. 12. On 4 March 2015 the Supreme Court of the Dagestan Republic upheld the judgment. The appeal court held as follows: “Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with administrative removal from Russia ... [The applicant] has committed a violation of the regime applicable for the presence of foreigners in Russia, by way of omitting after 7 October 2012 to leave Russia ... The court dismisses [the applicant’s] argument relating to his family life in Russia ... The marriage with Ms B. was concluded on 28 April 2014, which was a long time after the commission of the offence by [the applicant] ... The administrative offence record did not contain any information relating to his family life in Russia. No such information was adduced during the proceedings before the first-instance court ... [The applicant’s] prolonged violation of the migration legislation since October 2012 amounts to abuse of Russia’s hospitality and thus should be treated as a breach of the receiving country’s interests ...” 13. On an unspecified date the applicant received a copy of the appeal decision. 14. The penalty of administrative removal was not enforced. According to the Government, the bailiff service instituted enforcement proceedings on 12 March 2015, but they were not pursued on account of an application lodged by the applicant for temporary asylum (see below). 15. On 5 May 2015 the applicant applied for temporary asylum. He referred to the ongoing intensive military actions in Syria, in particular in his home town of Aleppo. He further argued that given his age, he would be drafted by the governmental forces for active military service, thereby putting his life and physical integrity in danger. 16. It appears that the applicant engaged lawyer K. to assist him in those proceedings and had a meeting with him in the detention centre. On 2 June 2015 the applicant called the lawyer from the detention centre, complaining of beatings. On the same day, the lawyer was refused access to the applicant in the detention centre, apparently because he should have obtained authorisation for the visit from the regional migration authority. The lawyer wrote to the regional prosecutor’s office complaining of a violation of the applicant’s rights and physical integrity. 17. On 4 June 2015 the lawyer made a further unsuccessful attempt to gain access to the applicant. 18. On 6 August 2015 the local migration authority dismissed the applicant’s application for temporary asylum. The applicant sought review of this refusal before the Federal Migration Service (“the FMS”). On 24 September 2015 the FMS upheld its decision, stating as follows: “In February 2012 there were no large-scale military operations in Syria; there were only localised hostilities between governmental forces and opposition groups. Despite the above, the applicant failed to leave Russia ... At the time he did not apply for asylum and continued to stay in Russia unlawfully until the imposition of the penalty of administrative removal. The following violations of the migration rules for foreigners should be pointed out: The applicant arrived in Russia under a business visa, whereas his actual goal was employment. Thus, his declared aim did not correspond to the actual aim for arriving in Russia. The applicant was unlawfully engaged in employment activities ... In February 2013 he was twice prosecuted for administrative offences. However, even after this, he did not seek asylum, while neglecting the real possibility of his future deportation from Russia ... The Ministry of Foreign Affairs points out that Syrian nationals who return to their homeland or who are deported or expelled there may arrive in Damascus and then proceed to other regions that are controlled by governmental forces.” 19. On 14 October 2015 the applicant, assisted by lawyer M., sought judicial review of the refusal of temporary asylum under the Code of Administrative Procedure (“the CAP”) and asked the Leninskiy District Court of Makhachkala to put in place an interim measure by way of suspending enforcement of the judgment of 26 February 2015. On 16 October 2015 the court refused to deal with the case, concluding that it had to be lodged before a court with jurisdiction in the area of the applicant’s current “place of residence”; his stay in the detention centre did not qualify as a place of residence. 20. Assisted by Ms Biryukova (who is his representative before this Court) the applicant resubmitted his application for judicial review to the Basmannyy District Court of Moscow. On 27 October 2015 the District Court left the matter without examination because the applicant had not indicated the date and place of his birth; had not specified whether he had a law degree, which was relevant because the case could only be lodged by a person in possession of a law degree; and had not provided evidence that his representative had a law degree. The applicant was required to remedy the above defects by 18 November 2015. 21. By a judgment of 9 December 2015 the District Court upheld the refusals of temporary asylum. The court held that the applicant was at risk of violence which was no more intensive than for other people living in Syria: “The grounds for granting temporary asylum on account of humanitarian considerations include the following situations: a grave medical condition for which the foreigner will not receive the requisite medical care in the country of nationality, thus putting his or her life at risk; a real threat to his or her life or liberty on account of hunger, epidemics, emergency situations of environmental or industrial origin or on account of an internal or international conflict that encompasses the entire territory of the state of nationality; a real threat of being subjected to torture or another cruel, inhuman or degrading treatment or punishment in the country of nationality. Under Article 62 of the Code of Administrative Procedure the parties to the case must prove the circumstances to which they refer as the basis for their claims or objections, unless otherwise provided for by the Code. Assessing the evidence submitted to it, the court concludes that [the applicant] has not adduced convincing arguments that he is at risk of being persecuted by the authorities or by groups of the population on account of his religion, race or membership of a social group ... Despite the difficult social and political situation in Syria, there are no grounds to consider that his life will be at a higher risk than that of other people living in this country ... According to information from the Federal Migration Authority, people returning to Syria may reach directly the city of Damascus, which is under the control of the government. ...” 22. The applicant received a copy of the judgment in February 2016 and lodged an appeal. He argued that the first-instance court had not paid proper attention to his argument relating to the risk to his life and physical integrity in the event of his removal to Syria; the migration authority had not refuted his argument while the court had shifted the burden of proof onto the applicant and had placed undue emphasis on the illegality of the applicant’s presence in Russia. His appeal was dismissed by the Moscow City Court on 8 June 2016. The appeal court held as follows: “The first-instance court considered that the applicant did not fall within the scope of the notion of “refugee” under the Refugees Act ... In view of the applicant’s failure to submit specific facts disclosing that in the event of his removal to Syria he would be exposed to a real threat to his security ... or that he was persecuted in this country, the appeal court agrees with the first-instance court ... The appeal court also notes that the applicant arrived in Russia in 2011 but only sought temporary asylum in 2015.”