ECtHR – L.M. and Others v. Russia, Applications Nos. 40081/14, 40088/14 and 40127/14, 15 October 2015

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Country of Applicant: 
Syria
Date of Decision: 
15-10-2015
Citation: 
L.M. and Others v Russia, Applications Nos. 40081/14, 40088/14 and 40127/14 [2015] ECtHR
Court Name: 
European Court of Human Rights (First section)
Headnote: 

The applicants, a stateless Palestinian from Syria and two Syrian nationals, had been ordered to be expelled to Syria by the Russian authorities, and were detained in a detention centre in Russia pending this. The Court found that their expulsion to Syria would breach Articles 2 and 3, that Articles 5(4) and 5(1)(f) had been violated with regards to their detention, and that the restrictions on their contact with their representatives had breached Article 34.

Facts: 

The applicants are L.M. – a stateless Palestinian from Syria who entered Russia on 9 February 2013, and A.A. and M.A., two Syrian nationals, who entered Russia on 21 April 2013. They were arrested on 14 and 15 April 2014 and had since been detained at a detention centre for foreign nationals in Maloyaroslavets, Kaluga Region, run by the local Federal Migration Service (FMS).

On 15 and 16 May, the Maloyaroslavets District Court found them guilty of administrative offences (breach of immigration rules and working without a permit). The Court ordered them to pay fines and their expulsion to Syria. This was despite the applicants expressing in court that they feared for their lives if returned to Syria, given the ongoing conflict there.

The lawyer representing them lodged appeals for all three of them, which were rejected by the Kaluga Regional Court on 27 May 2014.

On 14 and 21 May 2014, the applicants applied for refugee status to the Kaluga FMS. On 28 May 2014 they also submitted requests for temporary asylum in Russia.

They were questioned by the FMS in June 2014 in respect of these applications, during which they indicated that the reasons for their departure from Syria were the war and danger to their lives.

These proceedings were terminated by the FMS for L.M. and A.A. as on 17 July 2014 they both signed papers in Russian asking their requests not to be considered anymore, which were also signed by a translator. On 16 and 17 September 2014, the FMS decided to refuse M.A.’s requests for refugee status and temporary asylum, considering that he faced no threat of persecution.

On 25 August 2014, A.A. escaped from the detention centre, according to the Russian government, and his whereabouts remained unknown.

On 30 September 2014, L.M. and M.A. submitted new requests for refugee status. However, on 15 October 2014, they both signed papers in Russian asking for these requests not to be considered, again also signed by a translator.

L.M. lodged an application with the ECtHR on 29 May 2014, and A.A. and M.A. on 30 May 2014.

The applicants alleged that their deportation to Syria would be in breach of their rights under Articles 2 and 3 ECHR, that they had no effective domestic remedies in respect of this, contrary to Article 13 ECHR, and that their detention in Russia was in breach of their rights under Articles 3 and 5 ECHR. They also complained under Article 34 ECHR that the restrictions on their contact with their representatives had interfered with their ability to communicate with the Court effectively, and that the lack of interpreting services had further hindered their effective participation in the proceedings before the Court.

 

Decision & Reasoning: 

Articles 2 and 3 ECHR with regards to expulsion to Syria – non-exhaustion

The Court dismissed the Government’s argument of non-exhaustion of domestic remedies for the following reasons:

  • Firstly, the Court held that the fact that an appeal against a decision from the Russian authorities not to grant refugee status was pending was not an obstacle to the Court’s examination of the application if the expulsion or extradition order remains in force, as the criteria for granting refugee status are not identical to those used for assessing the risk of treatment contrary to Article 3.
  • Secondly, the Court found that while the statements of the applicants referring to the war and danger to their lives during the hearings in the District Court were indeed too general, the applicants do not speak Russian and had no legal representative to assist them during the hearings. They furthermore subsequently submitted detailed and corroborated information about the situation in Syria in their statements of appeal, when assisted by representatives.
  • Thirdly, from the applicants’ allegations, the facts of the case and the numerous complaints lodged by the applicants’ representatives, the Court concluded that the domestic proceedings concerning the determination of the applicants’ refugee and asylum status were not accessible to them in practice, and therefore could not be considered as a remedy to be used.

Articles 2 and 3 ECHR with regards to expulsion to Syria – merits

Given that the applicants pointed to the general information on the conflict in Syria, the UNHCR recommendation not to carry out expulsions to Syria, information from the Federal Bailiff Service on the impossibility of ensuring travel there, and the position of the FMS in its country report, the Court found that the need for asylum seekers from Syria to have international protection could not have been unknown to the relevant Russian authorities, and that the applicants had presented them with substantial grounds for believing that they faced a real risk to their lives and personal security if expelled.

The Court further found that the applicants’ allegations had not been duly examined by the Russian authorities in the domestic proceedings, as the courts focused on the offences committed by the applicants rather than on an evalutation of their claims under Articles 2 and 3.

Finally, the Court concluded that the applicants’ allegations that their return to Syria would be in breach of Articles 2 and/or 3 were well founded, due to the level of intensity of the conflict in Syria, because the applicants are from Aleppo and Damascus where there was particularly heavy fighting, because they are young men, who are in particular danger of detention and ill-treatment according to Human Rights Watch.

The Court therefore held that the expulsion of the applicants to Syria would be in breach of Articles 2 and 3.

Article 3 ECHR with regards to the conditions of detention

The Court firstly found that given both parties’ submissions, the material conditions of detention at the detention centre could not be regarded as inhuman or degrading. Secondly, given the lack of evidence concerning the allegations of ill-treatment and verbal abuse by the guards, and in light of both parties’ submissions concerning the alleged lack of medical treatment, the Court found that there was no violation of Article 3 in connection to these complaints. This part of the application was therefore rejected.

Article 5(4) ECHR

The Court found that the applicants did not have at their disposal a procedure for judicial review of the lawfulness of their detention, and so it concluded that there had been a violation of Article 5(4) in respect of all three applicants.

Article 5(1)(f) ECHR

The Court found that even though there was sufficient material evidence indicating that no action could be taken with a view to deportation, as no expulsions to Syria were possible, the applicants’ detention had been validated and continued to date. As such, after the regional court upheld the decision on 27 May 2014 to expel and detain them, the applicants were not persons “against whom action [was] being taken with a view to deportation or extradition”. Their detention after 27 May 2014 was therefore not permissible under the exception to the right to liberty set out in Article 5(1)(f).

Moreover, under Russian law the applicants did not have access to judicial review of their detention pending expulsion, and there was no automatic review of detention at regular intervals. The Court further noted that the maximum penalty for deprivation of liberty for an administrative offence under domestic law was thirty days, and so found that it was not normal for the “preventive” measure of detention with a view to expulsion to be much heavier than the “punitive” one concerning the administrative offence.

The Court therefore concluded that there had been a violation of Article 5(1)(f).

Article 34 ECHR

In light of the applicants’ submissions, the facts of the case, the absence of reaction from the Russian Government to this complaint, and the vulnerability of the position of the applicants, the Court found that there was sufficient evidence that their communication with their representatives had been seriously obstructed. Obtaining permission to have meetings was indeed so difficult that it went beyond the usual formalities and could be regarded as excessively complicated, and for months the applicants had remained without any means of communication with their representatives and so could not effectively participate in the domestic proceedings or proceedings before the ECtHR.

The Court therefore concluded that the Russian government had breached Article 34, as the restrictions on the applicants’ contact with their representatives constituted an interference with the exercise of their right of individual petition under the article.

Outcome: 

Application partially successful. The Court held that expulsion of the applicants to Syria would constitute a breach of Articles 2 and 3, and that Articles 5(4) and 5(1)(f) had been violated in respect of the applicants’ detention. The Court further held that the restrictions on the applicants’ contact with their representatives had breached Article 34. However, the Court rejected the applicants’ complaint under Article 3 concerning the conditions of their detention.

The Court held that Russia was to ensure immediate release of L.M. and M.A., and awarded EUR 9,000 to each of the applicants in respect of non-pecuniary damage and EUR 8,600 jointly to the applicants in respect of costs and expenses.

Observations/Comments: 

Articles discussing the case:

Laura Létourneau-Tremblay, “Expulsion of Refugees from Russia to Syria Would Violate International Obligations”, RefLaw, 6 January 2016, available here.

A. Kubal, “Refugees or Migrant Workers? A case study of undocumented Syrians in Russia – LM and Others v Russia”, Journal of Immigration, Asylum and Nationality Law, 30 (4), 265-282, 28 July 2016

 

 

This case summary was written by Emily Claire Procter, GDL student at BPP University, London.

Case Law Cited: 

ECtHR - Kudeshkina v. Russia (no. 2), Application no. 28727/11, 17 February 2014

ECtHR - Akdivar v Turkey, Application No. 21893/93

ECtHR- Scozzari and Giunta v. Italy [GC], ( Application nos. 39221/98 and 41963/98)

Menteş and others v. Turkey, no. 23186/94

Lebedev v. Russia, (no. 4493/04)

Gayratbek Saliyev v. Russia, (no. 39093/13)

ECtHR - H.L.R. v. France, Application no. 24573/94

ECtHR - Saadi v. Royaume-Uni [GC], Application No. 13229/03

ECtHR - Maestri v. Italy [GC], Application No. 39748/98

ECtHR - Kozhayev v. Russia, Application No. 60045/10

ECtHR - Broniowski v. Poland [GC], Application No. 31443/96

ECtHR - Shtukaturov v. Russia, (no. 44009/05)

ECtHR - Paladi v. Moldova [GC], Application No. 39806/05

ECtHR - Y. v. Russia, Application No. 20113/07

ECtHR - Khaydarov v. Russia, Application No. 21055/09

ECtHR - Gaforov v. Russia, Application No. 25404/09

ECtHR - Kaboulov v. Ukraine, Application No. 41015/04

ECtHR - Scoppola v. Italy (no. 2) [GC], Application No. 10249/03

ECtHR - A. and Others v. the United Kingdom [GC], Application No. 3455/05

ECtHR - Brumărescu v. Romania, no. 28342/95

ECtHR - Amirov v. Russia, Application no. 51857/13, 27 November 2014

ECtHR - Egamberdiyev v. Russia, Application no. 34742/13, 26 June 2014

ECtHR - Cotleţ v. Romania, Application no. 38565/97, 3 June 2003

ECtHR - Knyazev v. Russia, Application no. 25948/05, 8 November 2007

ECtHR - Zakharkin v. Russia, Application no. 1555/04, 10 June 2010

ECtHR - Melnikov v. Russia, Application no. 23610/03, 14 January 2010

ECtHR - Rustamov v. Russia, Application no. 11209/10, 3 July 2012

ECtHR - Akram Karimov v. Russia, Application no. 62892/12, 28 May 2014

ECtHR - Khodzhayev v. Russia, Application no. 52466/08, 12 May 2010

ECtHR - Jeličić v. Bosnia and Herzegovina, Application no. 41183/02, 15 November 2005

ECtHR - Croke v. Ireland, Application no. 33267/96, 15 June 1999

ECtHR - Rakhimov v. Russia, Application no. 50552/13, 10 July 2014

ECtHR - Khalikov v. Russia, Application no. 66373/13, 6 June 2015

ECtHR - Shakurov v. Russia, Application no. 55822/10, 5 June 2012

ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01

ECtHR - Ewalaka-Koumou v. Russia, Application no. 20953/03, 4 February 2010

ECtHR - Kim v. Russia, Application no. 44260/13, 17 July 2014

ECtHR - Kasymakhunov v. Russia, Application no. 29604/12, 14 November 2013

ECtHR - Öcalan v. Turkey [GC] (no. 46221/99, ECHR 12 May 2005)

Del Rio Prada v Spain (no. 42750/09), 21 October 2013

ECtHR - Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005‑I

ECtHR - Volkov v. Ukraine (Application no. 217722/11 judgment of 9th April 2013

Azimov v. Russia, no. 67474/11,18 April 2013

ECtHR - Tukhtamurodov v. Russia (no. 21762/14), 20 January 2015

ECtHR - Mamazhonov v. Russia (no. 17239/13), 23 October 2014
Other sources cited: 

8th Report of the independent international commission of inquiry on the Syrian Arab Republic (A/HRC/27/60, 13 August 2014), available here.

UNHCR, “Position on Returns to the Syrian Arab Republic”, 2 March 2012
 
UNHCR, “International Protection Considerations with regard to people fleeing the Syrian Arab Republic”, Update III, 27 October 2014
 
UNHCR, “Syrian Refugees in Europe: What Europe Can Do to Ensure Protection and Solidarity”, 1 July 2014
 
Human Rights Watch World Report 2014, 31 January 2014
 
UK Home Office, “Country Information and Guidance, Syria: Security and humanitarian situation”, December 2014
 
Secretary-General of the United Nations, Twelth report on the implementation of Security Council resolutions 2139 (2014), 2165 (2014) and 2191 (2014) on Syria, 19 February 2015
Authentic Language: 
English
State Party: 
Russia
National / Other Legislative Provisions: 
Russia - Foreigners Act (Law no.115-FZ of 25 July 2002) - Section 34(5)
Russia - Code of Administrative Offences - Articles 3.9
Russia - Code of Administrative Offences - 3.10(1)(2)(5)
Russia - Code of Administrative Offences - 27.1(1)
Russia - Code of Administrative Offences - 27.19(2)
Russia - Code of Administrative Offences - 31.9(1)
Russia – Constitution - Article 22
Russia - Refugees Act of Russia (Law no. 4258-I of 19 February 1993)
Russia - Decree No. 1306 of the Russian Government