CASE OF MSKHILADZE v. RUSSIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
5. The applicant was born in 1972. 6. The applicant arrived in Russia in 1988. He was subsequently convicted of criminal offences on several occasions. He was released on 3 December 2014 after serving his most recent prison sentence. 7. On 2 December 2014 the Russian Ministry of Justice issued an exclusion order, declaring the applicant’s presence in Russia undesirable and prohibiting his return to Russia until 2020. Further to the exclusion order, on 4 March 2015 the migration authorities issued a deportation order in respect of the applicant and he was later arrested. On 6 March 2015 a judge authorised his further detention until 10 March 2015, with a view to enforcing the deportation order. His detention was then extended until 30 August 2015. 8. On 7 May 2015 the Georgian authorities informed the Russian migration authority that the applicant was not a Georgian national and that they would not assist in his return to Georgia. The applicant was released on 30 August 2015 following the expiry of the latest detention order. 9. On 14 December 2015 the applicant was accused of an offence under Article 18.8 § 3 of the Code of Administrative Offences (CAO) on account of his presence in Russia without the necessary documents. On 15 December 2015 the Kirovskiy District Court of Saint Petersburg convicted the applicant and ordered his administrative removal from Russia (without specifying the destination country). The judge noted that the applicant was a stateless person but held that he had to comply with a statutory obligation to leave Russia, having no valid legal basis for being there. Lastly, the judge ordered that the applicant be placed in a detention centre for foreigners, with a view to enforcing his administrative removal. 10. The judgment was amenable to appeal within ten days of receipt by the defendant. 11. On 25 December 2015 the applicant appealed, arguing, inter alia, that the penalty of administrative removal could not be enforced in the absence of Georgian or any other nationality and that it was therefore unjustified to place him in detention and keep him there. 12. On 26 January 2016 the Saint Petersburg City Court upheld the judgment of 15 December 2015. The appeal court considered that the applicant could still be removed to the country from which he had arrived in Russia if there was a readmission agreement with that country; that he could be held in detention for a maximum of two years, which was the statutory period for the enforceability of a penalty; and that the CAO had not required the trial judge to set any time-limit when ordering his placement in a detention centre for foreigners. 13. On 24 March 2016 the Georgian authorities again informed the Russian migration authority that they would not assist in providing documents for the applicant’s return to Georgia as he was not a Georgian national and there were no other legal grounds for such assistance. 14. The applicant sought a review of the decisions of 15 December 2015 and 26 January 2016. On 24 June 2016 the deputy President of the City Court upheld them on review under Article 30.12 of the CAO. 15. On 22 July 2016 the District Court dismissed an application from the applicant to terminate the proceedings to enforce the judgment of 15 December 2015. The court held that there was no statutory basis in the CAO or other legislation for granting such an application. On 8 November 2016 the City Court upheld that decision. 16. In the meantime, on 1 August 2016, referring to Article 5 § 4 of the Convention, the applicant lodged an application for release and again sought termination of the enforcement proceedings. By a letter of 2 August 2016 a judge of the District Court returned his application without examination. 17. The applicant lodged an individual complaint with the Russian Constitutional Court (see paragraph 29 below). 18. On 5 June 2017 the applicant’s lawyer lodged an application with the Kirovskiy District Court of Saint Petersburg in order to obtain the applicant’s release, referring to the above-mentioned constitutional ruling. On 22 June 2017 the District Court ordered his release. 19. From 15 December 2015 to 5 August 2016 (when the application was lodged with the Court) and then further until 22 June 2017 the applicant was kept in the Сentre for the Temporary Confinement of Foreign Nationals (Центр временного содержания иностранных граждан) in Krasnoye Selo. From the start date to mid-February 2016 he was kept in cell no. 404 and from mid-February to 3 August 2016 he was in cell no. 403. According to the applicant, each cell measured eighteen square metres and accommodated four people. The cells were equipped with bedside boards and beds but there were no chairs, tables or other furniture. On 3 August 2016 the applicant was transferred to cell no. 304, measuring eight square metres, where he was kept alone. From late September 2016 to 17 January 2017 he shared cell no. 706, measuring ten square metres, with another detainee. From 17 to 22 January he was in cell no. 405 and from 22 January to 22 June 2017 he was kept in cell no. 406 with three other detainees. 20. During the period of his confinement up to 3 August 2016 the applicant was locked in his cell most of the time, being taken to a courtyard (measuring some fifteen square metres) every second day for ten to fifteen minutes. He was taken there every third day from early 2017. The yard had no equipment for sport or leisure activities, no benches and no shelter from the rain or snow. 21. The toilets in the cells were separated from the main area by a fixed partition. There was no proper, ceramic toilet bowl, just a “hole” with a flusher set on a small base so the toilet had to be used in a squatting position. According to the applicant, the partition was not high enough and the toilet area remained visible. There were also unpleasant odours. 22. Shower facilities were accessible for ten minutes every fourth day in 2016 and once every seven to ten days from early 2017. There were no facilities for washing or drying clothes and no toilet paper, toothpaste, soap or the like was provided. Bedding was changed once a month. Subsequently, the applicant also stated that the cells became infested with bugs, cockroaches and mice, although it was not clear to what period of time he referred to. He submitted a photograph showing two captured mice in containers. 23. Food was brought to the cells but was cold, particularly in winter, and of mediocre quality. In the absence of tables, detainees had to eat on their beds. There was no supply of drinking water and no facilities for boiling water or cooking food. It was not possible to purchase food. 24. He had been allowed to leave cells 304 and 706 and move within the corridor and shower area but had been prohibited from entering other cells. 25. No radio, television, newspapers or the like were provided in the detention centre. The applicant and his co-detainees were apparently allowed to have a television set during his most recent period of detention. 26. The applicant has submitted several photographs of the cells, a statement written by his cellmate after March 2017, a statement from a detainee written in 2015 and a recent news report about the detention centre. 27. In November 2016 the detention facility was visited by members of a public oversight committee. They noted that the toilets (consisting of a “hole”) in the cells on the fourth floor were separated from the main area by a low partition or curtain and that it was not possible to switch the lights on or off from inside the cells. They also noted that the detention centre had no courtyard for detainees. 28. According to the Government, as of February 2017 the applicant was being held in cell no. 403, which measured 27.4 square metres (not eighteen as submitted by the applicant). The cell was equipped with a toilet, a sink with hot and cold water, beds and a table. The main lights were switched off at night. The detention centre had a library and detainees could borrow books. Food was prepared and delivered by an external catering company. Hot food was brought in special containers.