ECtHR - Z.A and Others v. Russia Application no. 61411/15, 61420/15, 61427/15 & 3028/16), 28 March 2017

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Country of Applicant: 
Iraq
Palestinian Territory
Somalia
Syria
Date of Decision: 
28-03-2017
Citation: 
Z.A and Others v. Russia Application no. 61411/15, 61420/15, 61427/15 & 3028/16)
Court Name: 
European Court of Human Rights
Headnote: 

Four applicants were refused entry into Russia and claimed refugee status. They were detained in the transit zone of Sheremetyevo airport and Russia was found to be in violation of Articles 3 and 5 of the ECHR. 

Facts: 

The four applicants found themselves staying in the transit zone of Sheremetyevo Airport of Moscow.  Every applicant described the conditions of their stay in the transit zone as contrary to the guarantees of Article 3 of the Convention. They slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. They sustained themselves on emergency rations provided by the Russian office of UNHCR. The Court decided unanimously to join the applications.

Each applicant was interviewed in the transit area of Sheremetyevo Airport by the Moscow Region Federal Migration Service (FMS). No applicant was issued with an “examination certificate” a certificate to confirm that their refugee status deserved to be examined on merits or allocation to a centre for the temporary detention of foreigners.

The applicants had Iraqi, Palestinian, Syrian and Somalian passports respectively and the exact reasons for their application for refugee status differed on each case.

Each applicant appealed this decision to the higher migration authority The Federal Migration Service of Russia – “the Russian FMS” and then to national courts in Moscow. Some received rejections from all possible avenues and some have yet to receive responses.

Decision & Reasoning: 

Given the factual and legal similarities of the applications, the Court decided to join the applications in accordance with Rule 42 & 1 of the Rules of Court.

Firstly, the court held by six votes to one, that there had been a violation of Article 5 para 1 of the Convention. The Court reiterated that a restriction of liberty and deprivation of liberty is merely one of degree or intensity and not one of nature or substance.  (see Nolan and K. v Russia, no 2512/04s 93, 12 February 2009). The Court stated that restricting aliens in an international zone could, if prolonged, excessively turn into a deprivation of liberty. The Court noted that the applicants remained in the transit zone of the airport for lengthy periods of time including in the case of Mr A.M., of over one year and eleven months. In addition, they noted that the fact that applicants could leave Russia voluntarily did not rule out an infringement of the right to liberty (see Amuur v. France, 25 June 1996 ss43 and 48, Reports of Judgements and Decisions 1996-III, and Riad and Idiab v.  Belgium nos. 29787/03 and 29810/03 s 68, 24 January 2018).

Whilst the Court noted the Government’s claim that the transit zone of Sheremtyevo Airport is not the territory of the Russian Federation it stated that if the applicants were subject to its laws the transit zone could not be considered extraterritoriality. The Court also noted that the applicants were unable to enter Russian territory, their application had not been considered and they had no other option but to return to the country which they had left. They had therefore not chosen to have validly consented to being deprived of their liberty.

Whilst, the Court acknowledged that Russia had the right to detain aliens entering into their territory under Article 5 para 1 of the Convention, they established that this detention had been unlawful. In order to avoid being branded arbitrary the place and conditions of detention should be appropriate, and the length of the detention should not exceed that reasonably required for the purpose pursued. The Russian government simply stated that the UNHCR was not in a position to interpret Russian law but provided no alternative assessment. They also sought to rely on Chapter 5 of Annex 9 to the Chicago Convention but this leaves the detention of improperly documented passengers to domestic law and a paragraph within the same chapter emphasises the need to preserve the dignity of inadmissible passengers and treat them in accordance with international standards. The Court concluded in the absence of a legal basis of the detention in Russian domestic law and that there had been a violation of Article 5 para 1.

Secondly, with regards to Article 3 of the Convention the Court noted that the conditions were sufficiently inhuman as to constitute a violation. All four applicants had described similar conditions whereby they had no beds to sleep on, no designated place to maintain personal hygiene and no privacy whatsoever. In light of the credibility of all applicants’ testimonies in respect of conditions, the burden of proof was shifted to the Russian government, the government did not respond and so a violation was clearly established. It noted too, that a public space of an airport could not be considered as suitably equipped to serve as a long-term residence and that a violation had already been found on account of poor conditions of a transit zone in a Brussels airport (Riad and Idiab v. Belgium) where the applicants had stayed only a few days. In the present case the applicants had stayed in the transit zone for many months, which had caused the applicants considerable mental suffering, undermined their dignity and made them feel humiliated. It reiterated that the absence of a positive intention of humiliating or debasing the applicants cannot rule out a finding of a violation of Article 3 of the Convention.

As a result, the Court ordered Russia to pay the applicants within three months from the judgment date fines to the relevant parties in accordance with Article 44 s2 of the Convention. 

Outcome: 

The court found violations of Article 3 and 5 para 1 in respect of all applicants. 

Observations/Comments: 

This case summary was written by Adam Janmohamed.

Case Law Cited: 

Mursic v Croatia, Application No 7334/13, 20 October 2016

ECtHR - Mahamed Jama v. Malta, no. 10290/13 26 November 2015

ECtHR - Mogoş v. Romania ((dec.), no. 20420/02, 6 May 2004)

ECtHR - Abou Amer v. Romania, no. 14521/03

ECtHR - Mahdid and Haddar v. Austria, Application No. 74762/01

ECtHR - Ananyev et al. Russia, Application Nos. 42525/07 and 60800/08

ECtHR - El Masri v. the former Yugoslav Republic of Macedonia [GC], Application No. 39630/09

ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03

ECtHR - Peers v. Greece, Application No. 28524/95
Other sources cited: 

Annex 9 to the Convention on International Civil Aviation (“the Chicago Convention”), Fourteenth Edition, October 2015

Authentic Language: 
English
State Party: 
Russia
National / Other Legislative Provisions: 
Russia – Federal Law - “On Exit from and Entry into the Territory of the Russian Federation” (FZ-114 of 15 August 1996
with amendments) – s6.
Russia - Federal Law “On Refugees” (FZ-4528-1 of 19 February 1993
with amendments
“the Refugees Act”) – s4.
Russia – Federal Law – Refugees Act – s6.