INTRODUCTION. The applicants complained under Articles 2 and 3 of the Convention about the risk of death, torture and/or ill-treatment in the event of their forced return to North Korea and that they had had no effective remedies in respect of those complaints, in breach of Article 13 of the Convention. The applicant in application no 25079/19, M.L., also complained that his detention in Russia pending expulsion had been in breach of Article 5 of the Convention.
CASE OF M.L. AND OTHERS v. RUSSIA
(Applications nos. 25079/19 and 18570/19)
6 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of M.L. and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 18570/19 and 25079/19)against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three undocumented applicants who claimed to be North Korean nationals, Mr F., Z. and M.L. (“the applicants”), on 5 April 2019 and 13 May 2019 respectively;
the decision to give notice to the Russian Government (“the Government”) of the applications;
the decision not to have the applicants’ names disclosed;
the decision to give priority to the applications (Rule 41 of the Rules of Court);
the decisions to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court adopted on 5 April 2019 (18570/19) and 13 May 2019 (25079/19);
the parties’ observations;
Having deliberated in private on 16 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The applicants complained under Articles 2 and 3 of the Convention about the risk of death, torture and/or ill-treatment in the event of their forced return to North Korea and that they had had no effective remedies in respect of those complaints, in breach of Article 13 of the Convention. The applicant in application no 25079/19, M.L., also complained that his detention in Russia pending expulsion had been in breach of Article 5 of the Convention.
2. The applicants, F., Z. and M.L., are undocumented individuals who claim to be North Korean nationals and were born in 1956, 1957 and 1955, respectively. They were represented by Ms D. Trenina, Mr K. Zharinov and Ms E. Davidyan, lawyers practising in Moscow. At the time of lodging his application, M.L. was detained in a temporary detention centre for foreigners run by the Federal Migration Service in Ordynskiy District, Novosibirsk Region.
3. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Application no. 18057/19 (F. and Z.)
5. The applicants F. and Z. are not in possession of valid personal identity documents.
6. In October 2015 and December 2016, respectively, F. and Z. lodged applications for temporary asylum with the migration authorities of the Kemerovo Region, claiming that they had arrived in the eastern part of Russia from the Democratic People’s Republic of Korea (“the DPRK” or “North Korea”) on temporary employment-based visas for unskilled workers in 1994-1995 and had overstayed their visas.
7. The applicants lacking identification documents, the Kemerovo migration authorities carried out identity-check procedures and, in December 2015 and November 2016, respectively, issued decisions stating that it had not been possible to identify F. and Z. There was no information regarding their entry into Russia and no evidence to support their allegations.
8. On 11 January 2016 and 7 March 2017 respectively, F. and Z. were granted temporary asylum by migration authorities in Kemerovo on the grounds that, according to information from the United Nations (UN) General Assembly and the Ministry of Foreign Affairs in Russia, North Korean nationals who were forcibly returned to their country of origin often faced criminal punishment, such as forced labour or even execution. F. and Z.’s temporary asylum was extended annually until the beginning of 2019.
9. On 12 October 2018, the Migration Department of the Ministry of Internal Affairs (“the MVD”) quashed the decisions of the migration authorities in Kemerovo granting and extending temporary asylum to the applicants. Without departing from the assessment of the risk that the applicants would face in the event of their being returned by the local migration authorities, the MVD based its decision on the fact that the applicants had no valid documents and had not been formally identified (section 17(2)(1) of Federal Law no. 4528-1 of 19 February 1993 – “the Refugees Act”). After appeals by the applicants, the Ordynskiy District Court and the Kemerovo Regional Court (by decisions dated 24 April and 4 September 2019, respectively – the latter of them final) upheld the decision of 12 October 2018 in respect of both applicants.
10. After F. and Z. lodged applications to be issued identification documents under the procedure prescribed by section 10(1) of Law no. 115‑FZ of 25 July 2002 (“the Foreigners Act”), the local migration authorities, on 28 and 20 February 2019, respectively, issued decisions ruling that the applicants’ identities could not be established. With respect to F., after an examination of his fingerprints and of the data and the replies received from the relevant authorities to requests for information, and after hearing the witnesses proposed by F., the Mezhdurechensk MVD asserted that F. had provided false information and that there were discrepancies between the information provided by him and the information obtained by the authorities concerning the applicants’ identities. As regards Z., who had been fined several times in the past for administrative offences, the Kemerovo MVD asserted – after checking his fingerprints, the available information obtained by the authorities concerning the applicants’ identities, and hearing witnesses proposed by the applicant – that it was not possible to verify his claimed identity.
11. By final decisions of 25 September 2019 and 8 July 2020, the Kemerovo Regional Court dismissed the applicants’ appeals and confirmed that their identity remained unestablished. The Regional Court added that the witnesses proposed by F. had not clarified (i) the circumstances of his arrival in Russia or (ii) his nationality, as they knew him by a different name and had referred to events that had taken place a few years after the time at which the applicant asserted that he had arrived in Russia.
12. The parties have not informed the Court that a decision aiming at the expulsion of the applicants from Russia or their deportation to North Korea has been taken; F. and Z. have to date remained in Russia.
II. APPLICATION No. 25079/19 (M.L.)
13. The applicant, M.L., is not in possession of valid personal identity documents.
14. He arrived in Russia in July 1993, having been given leave to stay for a period of three years, but did not leave when that period elapsed.
15. On 25 April 2019, the applicant was apprehended by officers of the Ordynskiy Federal Migration Service for breaching the applicable immigration regulations and placed in the local detention centre for foreigners.
16. On 26 April 2019, the Ordynskiy District Court of Novosibirsk found the applicant guilty of violating migration rules, fined him, ordered his administrative expulsion from Russia and detained him pending enforcement of that expulsion order. M.L. appealed against that decision: in particular, he contested the order for his administrative expulsion, asking that it be removed from the sentence imposed by the District Court. The applicant furthermore referred to reports by international organisations concerning the human rights record of North Korea and the risks that returnees faced there. He also argued that, as a consequence of the expulsion order, he would be deprived of his liberty for an indefinite period without periodic review of its lawfulness, contrary to Article 5 §4 of the Convention. His appeal was dismissed on 27 May 2019 by the Novosibirsk Regional Court on the grounds that M.L. had referred to the general risk to returnees that existed in North Korea (and not to his own personal circumstances) and that he hadn’t provided sufficient evidence indicating that he would be persecuted in the event of his return or treated differently to other North Korean nationals. On 10 December 2019, following a further appeal by the applicant, the Supreme Court upheld the lower-instance decisions.
17. In the meantime, on 28 June 2019 the Novosibirsk Regional Court suspended the enforcement of the expulsion order until the examination of M.L.’s case by the Court in Strasbourg.
18. Following an application lodged by M.L. for refugee status, in May 2019 the MVD Department of Novosibirsk invited him to first fill in a statement establishing his identity, in accordance with section 10.1 of Law no. 115-FZ of 25 July 2002. On 16 October 2019, 20 April, 14 July and 19 October 2020, M.L. lodged applications with the local migration authorities for an identification procedure to be organised. Those applications were unsuccessful: the authorities instructed M.L. to complete the procedure with the help of a migration officer who would come to the detention centre and instruct the applicant on how to fill in the relevant form correctly; however, accordingly to the applicant, no such officer had visited the detention centre, and after he had been released, he had filled in the form (by himself) incorrectly.
19. On 7 July 2020, the Novosibirsk Regional Court quashed the expulsion order and released the applicant from detention. Having taken into account (i) the absence of information regarding whether any State was ready to receive M.L. and (ii) the indefinite suspension of the enforcement of his expulsion (given the fact that he had already spent a long period in detention – see paragraph 17 above), the Regional Court concluded that it was unlikely that he would ever in fact be expelledand that his continued detention therefore constituted a violation of his rights.
20. The parties have not informed the Court that any decision to expel the applicant from Russia or to deport him to North Korea has been taken; M.L. remains in Russia.
RELEVANT LEGAL FRAMEWORK
I. RELEVANT DOMESTIC LAW AND PRACTICE
21. The relevant domestic law and practice relating to the expulsion and detention of foreign nationals in Russia, refugee status, and temporary asylum is summarised in S.K. v. Russia, no. 52722/15, §§ 23-41, 14 February 2017 and K.G. v. Russia (dec.), no. 31084/18, §§ 18-22, 2 October 2018. Ruling no. 14-P of 23 May 2017 by the Russian Constitutional Court concerning the constitutional requirement to have available an effective remedy against an unlawful or disproportionate deprivation of liberty is summarised in Mskhiladze v. Russia [Committee], no. 47741/16, 13 February 2018).
II. RELEVANT INTERNATIONAL LAW
A. Resolution no. 1741 of the Parliamentary Assembly of the Council of Europe (PACE), 22 June 2010: “Readmission agreements – a mechanism for returning irregular migrants”
22. With respect to readmission agreements, the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1741 (22 June 2010), entitled “Readmission agreements – a mechanism for returning irregular migrants”. The resolution states, inter alia, that readmission agreements reiterate and define a country’s obligation to readmit its own citizens and set out the conditions under which States Parties to such agreements are obliged to readmit citizens of third countries who have passed through their territory. They facilitate and expedite the enforcement of return decisions in respect of irregular migrants and may also function as an incentive for countries of origin or transit to enhance their migration control. The Resolution adds that, depending on one’s viewpoint, readmission agreements can either be considered an important element in the migration management strategies of Council of Europe member States, or as facilitators of questionable return decisions and part of the criticised “outsourcing of migration control” of European countries.
23. The Resolution also emphasises the fact that the stage at which a human rights concern may arise is usually when the decision to expel the person concerned (that is to say the return decision) is taken, and not when that decision is enforced by way of the relevant readmission agreement – unless the situation in the readmitting country has changed in the meantime. The Resolution acknowledges that there is, however, a risk that readmission agreements will pose a threat, directly or indirectly, to the human rights of irregular migrants or asylum seekers. This concerns, in particular, the risk that the sending or the readmitting country will fail to honour their obligations under (i) the Geneva Convention Relating to the Status of Refugees (the 1951 Geneva Convention) and the 1967 Protocol thereto, and (ii) the European Convention on Human Rights (ETS No. 5), and then use a readmission agreement to enforce a flawed decision. The return process should be seen as a whole, in which readmission agreements constitute one important element.
B. Readmission Agreement between Russia and North Korea (and the Protocol thereto)
24. Russia has signed several readmission agreements with a variety of countries, including with the European Union (2005) and with certain Central Asian countries (for instance, Uzbekistan (2007), Kazakhstan (2012) and Kyrgyzstan (2012)). On 7 August 2017 there entered into force the “Agreement on the transfer and reception of persons who have illegally entered or are illegally residing within the territories of Russia and North Korea”(“the Agreement”) and the Protocol thereto – a bilateral treaty dated 2 February 2016. The Agreement provides that the relevant authority of the requesting party should lodge a request with its counterpart for the return of nationals of the requested party in respect of whom it has been established that they have illegally entered or reside within the territory of the requesting party. If necessary, the requested party should provide such documents as are required for its nationals to cross the border onto the territory of the requested party. If no such documents can be provided by the requested party, the requesting and requested parties agree on an interview with the undocumented person on the territory of the requesting party in order to establish his or her nationality. Once that person’s nationality has been established and the requested party has approved his or her transfer, that transfer is to be carried out within thirty days, unless agreed otherwise.
25. The Protocol to the Agreement specifies: the relevant authorities; the content and procedure for sending a request for (i) transfer and admission or (ii) transit; acceptable evidence that the person concerned holds (or could hold) citizenship of the requested party (for example, identification documents, witness statements, and the results of the above-mentioned interview); the performance of the interview person concerned (in the presence of the agents of the requested party); and the procedure for transfer and admission (including of persons under escort).
C. Relevant international material concerning the situation in North Korea
26. A report by the Commission of Inquiry on Human Rights in the DPRK, which was prepared by the UN Human Rights Council (HRC) and presented during its twenty-fifth session (held in 2014), concluded that systematic, widespread and gross human rights violations were committed by DPRK institutions and officials. In many instances, those violations constituted crimes against humanity. The report highlighted the fact that persons who were forcibly repatriated from China were commonly subjected to torture, arbitrary detention, summary execution, forced abortion and other forms of sexual violence.
27. Several reports issued by the UN Special Rapporteur on the situation of human rights in the DPRK called on the DPRK, inter alia, to refrain from using any form of punishment or retaliation against people who had been forcibly repatriated (UN General Assembly A/72/394, 18 September 2017) and – focusing on escapees to China – noted that there were substantial grounds for believing that such individuals would be subjected to torture or other serious human rights violations if returned to the DPRK (HRC, A/HRC/43/54, 25 February 2020).
28. A report issued by the Office of the UN High Commissioner for Human Rights was published on 28 July 2020, pursuant to HRC resolution 25/25, concerning allegations of human rights violations committed against women who are detained after being forcibly returned to the DPRK. The report recommended that member States of the UN uphold the principle of non-refoulement by not forcibly returning individuals to the DPRK who are at risk of being subjected to serious human rights violations there, including reprisals for real or perceived political opinions. It also called upon the DPRK to ensure that those who return or are repatriated to that country are afforded the full range of human rights and are not subjected to imprisonment or other forms of punishment for, inter alia, crossing the border in an irregular manner.
I. JOINDER OF THE APPLICATIONS
29. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 13 OF THE CONVENTION in respect of all applicants
30. The applicants complained under Articles 2, 3 and 13 of the Convention that in the event of their forced return to North Korea they would risk death or being subjected to torture and/or ill-treatment, and that they had no effective remedies in respect of those complaints.
31. The Government cited the relevant facts and submitted that there had been no violation of the above-mentioned provisions and that the applicants had had (and still had) at their disposal effective remedies in respect of their complaints. As regards M.L., the Government emphasised that the applicant had not exhausted the available domestic remedies because he had failed to comply with the requirements of Section 10.1 of the Foreigners Act – that is to say he had not established his identity.
32. The applicants contested these arguments, referring to the above‑mentioned international reports, and asserting that the existence of the risk of death or ill-treatment had been repeatedly confirmed by the domestic courts in respect of applicants F. and Z., until the temporary asylum granted to them had eventually been revoked on formal grounds relating to the fact that they had not been identified. As regards M.L., the alleged risk (of death of ill-treatment) had not been examined during the expulsion procedure. In respect of all the applicants, the authorities had not exercised sufficient diligence in attempting to establish their respective identities. The identification procedure could take up to three months and only if successful could the temporary asylum procedure be initiated. In the event that the applicants’ identities were not established, the risk of their removal would remain – either on the basis of the Agreement (which provided for the possibility of their identities being established by the North Korean authorities prior to their readmission to the DPRK), or, alternatively, by a regular deportation procedure prompted by the fact that their current stay in Russia was illegal.
33. The Court has taken note of the Government’s objection as regards non-exhaustion of domestic remedies by M.L., but finds it unnecessary to address it because the Court does not pursue the examination of complaints such as those lodged by the applicants, for the following reasons.
34. The Court notes, with regard to M.L., that by a decision of 7 July 2020 the Novosibirsk Regional Court terminated the expulsion order in respect of him and released him from detention, noting the absence of any information concerning the willingness of any State willing to receive him and the absence of any real possibility of M.L. being removed from Russia. As regards F. and Z., no order or decision aimed at their expulsion or deportation has been issued by the relevant authorities.
35. The Court is aware that the applicants’ migration status has not been regularised. As such, the applicants are in principle under an obligation to leave Russia voluntarily; if they do not, they face the risk of deportation, but the Court has already considered in respect of similar circumstances that the above does not necessarily mean that the removal of the applicant in question is inevitable and impending. Under Russian law a specific decision requiring a foreigner’s removal from the country must be delivered before a foreigner can be removed – for instance, an extradition order, a decision imposing the penalty of administrative removal for an administrative offence, or a decision declaring his presence in Russia undesirable and ordering his deportation; any such removal order can be challenged (see A.R. v. Russia, no. 25923/15, § 57, 10 May 2016, and Razigdad v. Russia [Committee] (dec.), no. 30764/13, § 38, 20 November 2018; also contrast A.L. (X.W.) v. Russia, no. 44095/14, § 65, 29 October 2015, in which an exclusion order had been issued because the applicant’s presence in Russia had been deemed to be undesirable, and the order explicitly mentioned deportation). However, to date no such decision has been delivered with respect to the applicants; in fact, they have not even been identified as North Korean nationals (which would render the risk of their removal to that country more likely).
36. The Court notes the applicants’ argument that both their identification and their removal could, under the Agreement, take place outside the legal framework described above – if necessary, with the assistance of the North Korean authorities. Although the Court notes with particular concern, in the light of the available information available from international sources, that the Agreement (signed with a country with a poor record of human rights protection) allows the repatriation of illegal North Korean nationals, it has to assess whether in the instant cases there are sufficient elements currently pointing to a real risk of the applicants indeed being removed on the basis of the Agreement.
37. The Court notes that the existence of such readmission agreements, which generally facilitate the enforcement of removal decisions and are usually of a technical character, is widespread both in Russia and other European countries. The return process should be seen as a whole, of which readmission agreements constitute one important element (see paragraph 23 above). The absence of specific procedural guarantees in their provisions does not necessarily mean that such agreements have an existence that is independent of the regular decision-taking procedures in respect of expulsion or deportation.
38. The Court observes that the applicants have not submitted relevant, recent, consistent examples and reports of Russia – on the sole basis of the Agreement – removing North Korean nationals illegally present on Russian territory. Moreover, it notes that, in respect of F. and Z., for several months between the quashing of the decisions granting temporary asylum to the applicants and the date on which interim measures were indicated, no specific actions were taken by the Russian authorities to remove the applicants, still less to hand them over to the North Korean consular authorities with a view to their identification and forcible removal. As regards M.L., the Court has no reason to doubt the observation made by the Novosibirsk Regional Court in its decision of 7 July 2020 in respect of the absence of information regarding whether any State was ready to receive him.
39. In the light of the circumstances giving rise to the present cases, the Court does not find that the actions undertaken by the authorities until now allow it to conclude or to reasonably assume that applicants are at risk of being removed in a manner that does not fall under the regular expulsion or deportation procedures (see, mutatis mutandis, A.R. v. Russia, cited above, § 59).
40. The Court highlights the fact that under similar circumstances in which an applicant has not been granted a residence permit, it has nevertheless considered it, by virtue of Article 37 § 1 (c) of the Convention, no longer justified to continue examining his or her case, and has decided to strike it out of its list of cases. This was because, (i) as was clear from the information available at the time of it making that decision (and for a considerable time thereafter) the applicant was not (and would not be) at risk of being expelled and subjected to treatment allegedly in breach of Article 3 of the Convention, and (ii) the applicant could challenge before the domestic authorities any removal order issued in the future (see F.G. v. Sweden [GC], no. 43611/11, § 74, ECHR 2016, with further references, and M.S.A. v. Russia [Committee], no. 29957/14 and 8 others, §§ 32-33, 12 December 2017). The Court notes that the situation of F., Z. and M.L. is largely similar to the situation in the cases referred to above. There is no indication that the applicants would not be able to challenge a removal order. Moreover, the Court notes that the impossibility of the authorities identifying the applicants – either for mainly formal reasons (M.L.) or for lack of evidence confirmed in judicial proceedings (F. and Z.) – constitutes, at present, an additional obstacle to the enforcement of any removal order that might be issued.
41. The Court considers that it is no longer justified to continue to examine the above applications in so far as they relate to the applicants’ complaints under Articles 2 and 3 of the Convention regarding the alleged risk of death and/or ill‑treatment and their closely linked complaints under Article 13 of the Convention. The Court is furthermore satisfied that respect for human rights, as defined in the Convention and the Protocols thereto, does not require it to continue its examination of this part of the applications (Article 37 § 1 in fine; contrast F.G. v. Sweden, cited above, §§ 80-83). Accordingly, and in view of the complaints raised, the Court decides to strike out of its list of cases application no. 18570/19 in its entirety and application no. 25079/19 in part, so far as it concerns complaints of death and/or ill‑treatment in the event of the M.L.’s expulsion to North Korea and the alleged absence of effective domestic remedies in respect of these claims.
42. The above findings do not prevent these applicants from lodging new applications with the Court in the future and making use of the available procedures ‒ including the one specified under Rule 39 of the Rules of Court ‒ in respect of any new circumstances.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION IN RESPECT OF M.L.
43. M.L. also complained that his detention pending expulsion proceedings had been incompatible with the conventional requirement in terms of the foreseeability of the length of such detention and that he had not had access to effective judicial review of his detention. He relied on Article 5 § 1 (f) and Article 5 § 4 of the Convention. The relevant parts of Article 5 of the Convention read as follows:
“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 unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
4. 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 …”
44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
45. M.L. relied on the violations that the Court found in Azimov v. Russia (no. 67474/11, §§ 152 and 171-173, 18 April 2013), Kim v. Russia (no. 44260/13, §§ 41-57, 17 July 2014) and A.N. and Others v. Russia [Committee], (no. 61689/16 and 3 others, § 34, 23 October 2018). He argued that his detention pending expulsion had become arbitrary in view of its extensive length and that Russian legislation did not provide for periodic and speedy judicial review of the lawfulness of that detention. M.L. submitted that detention was contingent on expulsion and that his appeal against the judgment of the Ordynskiy District Court of 26 April 2019 had necessarily concerned both his expulsion and his placement in detention. Moreover, an appeal against the initial imposition of detention would not have constituted an effective remedy, given that the complaints raised before the Court referred to the increasing duration of the detention and the impossibility, after the initial stage, of securing review of its lawfulness or obtaining release.
46. The Government contested the applicant’s claim, holding that M.L.’s placement in detention had been in accordance with the judgment of the Ordynskiy District Court of 26 April 2019, which had taken into account of all the available evidence. The Government noted that the Code of Administrative Offences of the Russian Federation did not provide a requirement for the domestic court to set a deadline for the detention of a foreign national pending administrative expulsion. They referred to the statutory maximum detention period of two years from the date on which a decision imposing an administrative punishment became final (Article 31.9 of the Code of Administrative Offences) and to ruling no. 14-P of 23 May 2017 of the Russian Constitutional Court. Moreover, the Government pointed to the fact that the applicant had not used the opportunity to challenge the detention order when he had appealed against the decision of 26 April 2019 of the Ordynskiy District Court.
47. The Court reiterates that any deprivation of liberty under the second limb of Article 5 § 1 (f) of the Convention will only be justified for as long as deportation or extradition proceedings are in progress. If such proceedings are not carried out promptly, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (see L.M.and Others v. Russia, nos. 40081/14 and 2 others, § 146, 15 October 2015). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) of the Convention must be carried out in good faith, it must be closely connected to the grounds of detention relied on by the Government, and the length of the detention must not exceed that reasonably required for the purpose pursued (ibid.). The domestic authorities have an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified (Al Husin v. Bosnia and Herzegovina (no. 2), no. 10112/16, § 98, 25 June 2019).
48. Having regard to the information submitted by the parties, the Court finds that at first M.L. was detained for breaching immigration regulations, with a view to being expelled, and his detention was presumably carried out initially in good faith and in compliance with Article 5 § 1 (f) of the Convention. Therefore, as regards the Government’s argument that M.L. failed to challenge expressly the detention order when he appealed against the decision of the Ordynskiy District Court of 26 April 2019, the Court cannot see how such an appeal could have constituted an effective remedy when, according to the applicant, the detention became unjustified at a later stage. Moreover, the applicant complained in his appeal about his having been deprived of his liberty for an indefinite period without periodic review of its lawfulness.
49. The Court notes that the length of M.L.’s detention was more than fourteen months. Accordingly, in the Court’s view, and given its findings of recurrent violations of Article 5 of the Convention in respect of foreigners detained in Russia with a view to their administrative expulsion (see the above-cited cases of L.M. and Others v. Russia, §§ 141-42 and 149-52, and S.K. v. Russia, §§ 108-09 and § 116), the length of M.L.’s detention exceeded what was reasonably required for the purpose pursued – all the more so given the fact that he was an undocumented migrant and attempts to establish his identity with a view to identifying a State willing to receive him apparently failed at a very early administrative stage. Furthermore, again, it does not appear that M.L. had access to periodic judicial review of his continued detention, in breach of Article 5 § 4 of the Convention.
50. Accordingly, the Court concludes that there has been a violation of Article 5 § 1 (f) and Article 5 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
51. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
52. The applicant M.L. claimed 15,000 euros (EUR) in respect of non‑pecuniary damage suffered as a result of his unlawful and excessively lengthy detention pending expulsion and his fear of being returned to North Korea and ill-treated there, as well as the absence of any effective remedy.
53. The Government submitted that, should an award be made, Article 41 of the Convention should be applied, in accordance with the Court’s well-established case-law.
54. As regards the finding of a violation of Article 5 § 1 (f) and Article 5 § 4 of the Convention, the Court considers that M.L. has suffered non-pecuniary damage that cannot be compensated for solely by the finding of a violation, and that compensation therefore has to be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the sum of EUR 3,900 under this head, plus any tax that may be chargeable on this amount.
B. Costs and expenses
55. M.L. also claimed EUR 1,200, EUR 720 and EUR 1,080 in costs and expenses incurred before the domestic courts and before the Court by his representatives, Ms Trenina, Mr Zharinov and Ms Davidyan, respectively.
56. The Government draw the Court’s attention to the fact that the applicant did not submit copies of any legal services agreements concluded between him and his representatives.
57. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes the legal work undertaken by M.L.’s representatives, which partly concerned the complaints declared admissible by the Court. Regard being had to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to grant the claim in part and to award EUR 800, EUR 540 and EUR 790 to Ms Trenina, Mr Zharinov and Ms Davidyan, respectively, under this head. As requested, these payments are to be made directly into the respective bank accounts of M.L.’s representatives, to be specified by them.
V. APPLICATION OF AN INTERIM MEASURE UNDER RULE 39 OF THE RULES OF COURT
58. On 5 April 2019 (in respect of F. and Z.) and 13 May 2019 (in respect of M.L.) the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicants should not be removed from Russia to North Korea for the duration of the proceedings before the Court.
59. In this connection, the Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final.
60. Accordingly, the Court considers that the measures indicated to the Government under Rule 39 of the Rules of Court have come to an end.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Decides to strike out of its list of cases the application of F. and Z. and the application of M.L., the latter in so far as it concerns complaints under Articles 2 and 3 of the Convention concerning the risk of death and/or ill-treatment in the event of the applicant being expelled to North Korea from Russia and the alleged absence of effective domestic remedies in respect of these claims under Article 13 of the Convention;
3. Declares the complaint under Article 5 § 1 (f) and Article 5 § 4 of the Convention in respect of M.L. admissible;
4. Holds that there has been a violation of Article 5 § 1 (f) and Article 5 § 4 of the Convention in respect of M.L.;
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:
(i) EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, to M.L. in respect of non-pecuniary damage;
(ii) EUR 800 (eight hundred euros), EUR 540 (five hundred and forty euros) and EUR 790 (seven hundred and ninety euros), respectively, plus any tax that may be chargeable, directly to the bank accounts of M.L.’s representatives (Ms Trenina, Mr Zharinov and Ms Davidyan) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 6 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President