The applicant, a stateless person who had been residing in Russia after arriving there from Georgia, was subject to exclusion and deportation orders in 2014 and 2015, despite Georgian authorities confirming he was not a Georgian national and refusing to assist in his return. In December 2015, he was convicted of an administrative offence for remaining in Russia without valid documents and was ordered to be removed and subsequently detained. After multiple appeals, he was released in June 2017. The applicant then applied to the ECtHR, which found violations of Article 5 due to the unlawful nature of his detention and the absence of timely and effective judicial review.
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3 and Article 5 (§§ 1, 4)
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.
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 the applicant’s further detention until 10 March 2015, with a view to enforcing the deportation order. His detention was then extended until 30 August 2015.
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.
On 14 December 2015, the applicant was accused of an administrative offence (under the Code of Administrative Offences (“COA”)) 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. The judgment was amenable to appeal within ten days of receipt by the defendant.
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.
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.
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.
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.
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.
In the meantime, on 1 August 2016, referring to Article 5 § 4 of the ECHR ('the Convention'), the applicant had 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.
The applicant lodged an individual complaint with the Russian Constitutional Court. That Court ruled that the federal legislature must amend the CAO without delay by making provision for effective judicial review.
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 the applicant’s release.
The applicant subsequently filed an application with the ECtHR, relying on Article 3, Article 5 § 1(f) and Article 5 § 4 of the Convention.
Re Article 3:
Article 3 says: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
The applicant’s account of his detainment conditions (judgment paras 20-25) included that he was locked in his cell for most of his detention, allowed out very occasionally to a yard with no facilities, the toilet was just a hole in the floor separated by a fixed partition, shower facilities were available every several days, there were no basic amenities (toilet paper, soap, etc), the cells were infested with vermin, food was cold and there was no supply of drinking water. A public oversight committee in November 2016 noted that the toilet partition was a low partition and curtain, it was not possible to switch the lights on or off from inside the cell, and there was no courtyard for detainees.
Re Article 5 § 1
Article 5 § 1(f) says:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
The applicant submitted that it had been clear, and had remained so all along, that no State was willing to accept him and that he was a stateless person with no right of entry anywhere. As early as 2015 the Russian authorities had been told that the applicant had no right to enter or reside in Georgia. However, they had not attempted to negotiate with the Georgian authorities after that clarification.
Re Article 5 § 4
Article 5 § 4 says: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.
The Government acknowledged that Article 5 § 4 had been violated on account of the length of the appeal proceedings “in respect of the court decisions dated 15 December 2015 and 26 January 2016” (paragraph 52 judgment).
The applicant maintained his complaint concerning the length of the appeal proceedings against the judgment of 15 December 2015 in so far as it concerned the detention matter. He also maintained his complaint concerning the lack of a possibility to take proceedings for a review of his continued detention after January 2016.
Re Article 3:
The Government submitted that as of February 2017 (when the applicant was moved to a different cell), the cell had a toilet, sink (hot and cold), table and bed; lights were switched off at night; the centre had a library; and food (incl. hot food) was delivered by an external catering company. No submissions from the Govt on the conditions of the previous cell.
Re Article 5 § 1:
Government submitted that it had been possible to detain the applicant for 2 years, which was the period for enforcing the final penalty of administrative removal.
Re Article 5 § 4:
Conceded – see above.
Re Article 3:
The Court found no breaches of Article 3. The applicant had not been kept in severely overcrowded conditions (causing him not to have his own sleeping space or to have to take turns to sleep) – he had 4-4.5 metres of floor space. The cell toilet was separated by a partition and (usually) a curtain, there was no issue as to the entry of natural light or air into the cell, and other factors (night light, food, hygiene, sanitary arrangements or activities) did not meet the minimum threshold of severity to breach Article 3.
Re Article 5 § 1:
The Court found that there had been violations of Article 5 § 1 in respect of the applicant’s detention at least from late March 2016 until his release on 22 June 2017. At all stages of the administrative-offence proceedings, the Russian authorities were aware that the applicant was a stateless person. They had not given the Court any alternative options other than removal to Georgia, nor taken any steps towards the implementation of alternatives.
Re Article 5 § 4
The appeal against the 15 December 2015 decision was inadmissible as it had been lodged out of time.
As to the applicant’s complaint concerning the lack of a possibility to take proceedings for a review of his continued detention after January 2016, a breach of Article 5 § 4 was found, with no reasoning in the judgment.
The Court found violations of Articles 5 §§ 1 and 4, and awarded the applicant EUR 7,500 in respect of non-pecuniary damage, and EUR 1,000 in respect of costs and expenses.
Novokreshchin v. Russia (Committee), no. 40573/08, §§ 11-18, 27 November 2014
Kalinin v. Russia (Committee), no. 54749/12, §§ 3 and 15, 19 February 2015