CASE OF NASSR ALLAH v. LATVIA
No violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion) (Syria);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev
5. The applicant was born in 1982. His current whereabouts are unknown. 6. On 29 December 2012 the applicant fled Syria and on an unspecified date entered the Russian Federation. It appears that he applied for asylum, but on 4 May 2013 he left the country before his application was examined. 7. On 4-5 May 2013 the applicant crossed the Latvian border on foot. On 5 May 2013 the State Border Guard Service (Valsts roberžsardze) stopped him near the border. 8. On 7 May 2013 the State Border Guard Service completed an asylum application form and the applicant signed it in the presence of an Arabic-speaking interpreter. 9. On 7 May 2013 an initial interview (sākotnējā aptauja) with the applicant was conducted with the assistance of an Arab-speaking interpreter. The applicant explained that he could speak, read and write in English and Arabic. 10. On 16 May 2013 a personal interview (pārrunas) with the applicant took place. The applicant was assisted by an Arab-speaking interpreter. 11. On 22 May 2013 the closed facility in which the applicant was being held (see paragraph 23 below) received a parcel addressed to him. The sender was unknown. The parcel contained the applicant’s identity card and military service certificate in Arabic. Their translation was requested and on 24 May 2013 it was received. 12. On 28 May 2013 those documents, together with their translations into Latvian, were sent to the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvalde). The latter was also informed that it would receive certified translations as soon as possible. On 21 June 2013 the State Border Guard Service received the certified translations and, on the same date, sent them to the Office of Citizenship and Migration Affairs. 13. On 31 May 2013 authenticity of the applicant’s identity card was confirmed by two forensic experts. On 21 June 2013 the State Border Guard Service received their report and, on the same date, sent it to the Office of Citizenship and Migration Affairs. 14. On 28 June 2013 the applicant appointed a lawyer to assist him in the administrative proceedings. The same lawyer continued to represent him before the Court (see paragraph 2 above). 15. On 4 July 2013 the Asylum Affairs Division (Patvēruma lietu nodaļa) of the Office of Citizenship and Migration Affairs informed the applicant that they had received his application for asylum and would examine it within three months. 16. On 3 October 2013 the Asylum Affairs Division decided to refuse the applicant’s asylum application. However, they granted him subsidiary protection status (alternatīvais statuss) and issued a temporary residence permit for one year. It was noted that that decision would take effect from the time the applicant had been informed of it. A reference was made to section 70(1) of the Administrative Procedure Law and section 8(3) of the Notification Law (see paragraph 38 below). 17. On 4 October 2013, which was a Friday, a letter was sent to the State Border Guard Service in Daugavpils informing them of the decision and stating that the applicant was to be informed of it immediately. They also asked that one copy of the decision be handed over to the applicant and that the second copy be sent back to the Asylum Affairs Division with the applicant’s signature confirming that he had been informed of it. The letter, together with two copies of the decision, was received in Daugavpils on Monday 7 October 2013 (see paragraphs 29-30 below) and the applicant was informed of it. Accordingly, the decision took effect on 7 October 2013. 18. The applicant lodged an appeal against the decision with the administrative courts, as he wished to be granted asylum; he considered that the subsidiary protection status was not sufficient. 19. On 6 November 2013 administrative proceedings were instituted. 20. On 19 December 2013 the Administrative District Court issued summonses and scheduled a hearing for 27 January 2014. That hearing was postponed as the applicant did not appear. Another hearing was scheduled for 25 February 2014, but the applicant failed to appear again. 21. On 26 February 2014 the Administrative District Court left the applicant’s appeal without examination for repeated failure to appear without good reason. 22. On 5 May 2013 the applicant was detained under section 51(2)(1) of the Immigration Law (see paragraph 35 below), but he refused to sign the detention record. At that time, he had no personal identification or valid travel document. He identified himself as “Adnan Haiiak”, born on 20 October 1983. He was informed (in English) of his rights to appeal against the detention order, receive legal aid, acquaint himself with the detention records and communicate in a language understood by him. The following day several documents were found in the place where he had been arrested: a document testifying that an application for short-term asylum had been made by a Syrian national, Mr Nassr Allah, born on 18 September 1982, and was being examined in Russia; a torn train ticket; and other documents in Arabic. The applicant explained that he had hidden those documents in order to avoid being sent back to Russia. 23. On 7 May 2013 the applicant was detained under section 9(1)(1) (undetermined identity) and 9(1)(2) (misuse of the asylum procedure) of the Asylum Law, but he refused to sign the detention record. He was informed (in Arabic) of his rights to appeal against the detention order, receive legal aid and communicate in a language understood by him. He was also informed about the reasons for his detention. He was placed in a closed facility in Daugavpils – an accommodation centre for foreign detainees and asylum seekers (Aizturēto ārzemnieku un patvēruma meklētāju izmitināšanas centrs – “the Daugavpils accommodation centre”). 24. On 10 May 2013, following a hearing in the applicant’s presence, a judge of the Daugavpils (City) Court (Dauvgavpils tiesa) ordered his detention for two months. The judge examined the material brought before him and, with the assistance of an Arab-speaking interpreter, heard evidence from the applicant. The applicant explained that he had applied for asylum in Russia, but had left as he realised that he would not receive it. He had crossed the border illegally and had identified himself by giving another name in order not to be deported back to Russia. The applicant was not assisted by a lawyer. The judge concluded that there were grounds to detain him as his identity had not been determined and there were reasons to consider that he had misused the asylum procedure. He had arrived in Latvia from a country, where his life had not been endangered and where he had applied for asylum; these facts evidenced that he misused the asylum procedure. On the same date, the applicant lodged an appeal (one page) against that decision in English, stating in simple terms that he had received the court’s decision and wished to appeal against it. He submitted that he had been in danger in Russia and had been ill; he expressed the wish to be granted refugee status in Latvia and undertook to provide all his documents as soon as possible. On 13 May 2013 his appeal was sent for translation; on 7 June 2013 a translation was received. On the same date, the appeal, its translation and the case file were forwarded to the Latgale Regional Court (Latgales apgabaltiesa) and the applicant was informed that a single judge would examine his appeal following a written procedure; the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of it on 13 June 2013. On 25 June 2013 the applicant was informed that examination of his case had been rescheduled to 5 July 2013; it would be decided by a single judge following a written procedure. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 25 June 2013. 25. On 5 July 2013 a judge of the Latgale Regional Court examined and dismissed the applicant’s appeal. He relied on largely the same factual and legal grounds for detaining the applicant as the first-instance court judge. The judge concluded that there were grounds to consider that the applicant attempted to misuse the asylum procedure. It was evidenced by the facts surrounding his arrival and application for asylum in Latvia. He had crossed the border illegally. He had not arrived directly from the country where his life or liberty was endangered. He had spent several months in Russia, where he had applied for asylum, but had left illegally; without awaiting for a final decision. It was impossible to predict his further actions in case of release. The decision was drafted in Latvian, but its contents were explained to the applicant, for which he signed on the same date. 26. On 8 July 2013, following a hearing in the applicant’s presence, the judge of the Daugavpils (City) Court authorised the extension of his detention for a further two months; the applicant was assisted by an interpreter. The applicant’s lawyer was not present, but the judge examined her written request to release the applicant on account of the fact that he had provided his identity documents and had not misused the asylum procedure. She argued that the applicant could be placed in an open and specialised institution – an accommodation centre for asylum seekers in Mucenieki. The judge disagreed and concluded that there were grounds to detain the applicant under section 9(1)(2) of the Asylum Law. The fact that his application for asylum was accepted for examination did not indicate that he would comply with the requirements arising from the asylum procedure as he testified that he would again apply for an asylum in another European country in case he received a negative decision in Latvia, which was contrary to the applicable procedure. In such circumstances, it was impossible to predict his further actions if placed in an open accommodation centre; there was a possibility that he might leave Latvia and thereby obstruct the asylum procedure as he had already done in a safe third country (see paragraph 6 above). On the same date, the applicant lodged an appeal (one page) against that decision in Latvian, stating that there was no evidence that he had misused the asylum procedure, might leave the country or obstruct the asylum procedure. He disputed the relevance of the fact that he had applied for asylum in Russia as it was not a safe third country. His appeal was forwarded to the Latgale Regional Court together with the case file. On 15 July 2013 the applicant was informed that his case would be examined on 30 July 2013 by a single judge following a written procedure; it was explained that the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 18 July 2013. 27. On 30 July 2013 another judge of the Latgale Regional Court examined and dismissed the applicant’s appeal, upholding the decision to detain him under section 9(1)(2) of the Asylum Law. She referred to the findings of the city court to the effect that there were grounds to believe that the applicant might misuse the asylum procedure. There was evidence that he had left Russia after several months and without awaiting a final decision in response to his application for asylum. Upon arrival in Latvia, he had withheld his real identity. It was due to diligent work of border guards that his identity could be established. Moreover, the applicant admitted that he had left Russia because he believed that his application for asylum would be refused; he also admitted that he would attempt to obtain asylum in another European country if it was refused in Latvia. Therefore, the judge upheld the conclusion of the lower court that it was impossible to predict the applicant’s further actions upon release. The decision was drafted in Latvian, but its contents were explained to the applicant. On 6 August 2013 he signed the decision, confirming that it had been explained to him in English; he respected the decision and agreed with it. 28. On 6 September 2013 the judge of the Daugavpils (City) Court authorised the applicant’s detention for a further two months, again on the grounds of section 9(1)(2) of the Asylum Law. During the hearing, the applicant explained that he would continue to pursue the asylum proceedings; he was aware of the relevant procedures and duties, he would not leave Latvia until the end of the asylum procedure. The judge concluded that the applicant misused the asylum procedure on the same grounds as indicated in the previous decisions and that he should remain in detention. With reference to section 9 (3) of the Asylum Law, the judge noted that the time-limit for his detention had not yet expired. The applicant did not lodge an appeal against that decision, as the Asylum Affairs Division was due to make a decision in less than one month and his previous experience had shown that detention appeals took about one month to be examined. 29. On 4 October 2013 the State Border Guard Service informed the applicant that he had been granted subsidiary protection status but that they could not release him until they received the original version of that decision; the relevant authority had sent it by post (see paragraph 17 above). 30. The State Boarder Guard Service ordered the applicant’s release at around 4 p.m. on 7 October 2013. In the release order, a reference was made to the fact that the applicant had been granted subsidiary protection status and that grounds for his detention had ceased to exist. 31. On 13 August 2013 the applicant complained to the Ombudsman about his prolonged detention. 32. On 21 August 2013 the Ombudsman replied [in English] as follows: “In your complaint you request Ombudsman’s assistance in obtaining order for your release as well as assistance with contacting your family in Syria. In the process of examining your complaint I have contacted the centre for detained foreigners and asylum seekers ‘Daugavpils’ (hereinafter – the Centre). According to information provided by the Centre, your application for asylum is currently under examination in the Office of Citizenship and Migration Affairs. The expected date of decision is 4 October 2013. According to the decision of Daugavpils (City) Court from 8 July 2013, as well as Latgale Regional Court you are currently detained on the basis of [section 9(1)(2)] of the Asylum Law. The next periodical review of your detention is due before 6 September 2013. [Section 9(1)(2)] of the Asylum Law states that ‘the State Border Guard [Service] has the right to detain an asylum seeker for a period up to seven days and nights if there are reasons to believe that the asylum seeker is attempting to use the asylum procedure in bad faith.’ The decision of Daugavpils (City) Court is based on the fact that you have crossed the Latvian border under the name of Adnan Haiik having previously requested temporary asylum in the Russian Federation with your established identity as Aladdin Nassr Allah. In the court hearing you have also indicated that in case of a negative decision you will proceed to seek asylum in another European country, which would be contrary to the procedure and regulations of requesting asylum in the European Union. Thus the court has established reasons to believe that you are attempting to use asylum procedure contrary to its objective and purpose. Having reviewed the decision of Daugavpils (City) Court and Latgale Regional Court, it is established that you have been detained according to the procedures prescribed by law. Your rights to periodical review of detention have also been observed according to Latvian law. Furthermore, the decisions ordering your detention contain sufficient motivation to establish legal and factual grounds for such detention. Therefore, there has been no violation of your right to liberty and security under the [Convention] and Article 94 of the Constitution of Latvia. With regard to the possibility to contact your family from the detention facility, I would like to inform you that upon your request, you have the right to contact your family on your own expense. The Latvian law does not grant detained asylum seekers a possibility to contact their families free of charge.”