M.D. and Others v. Russia (European Court of Human Rights)

Information Note on the Court’s case-law 254
August-September 2021

M.D. and Others v. Russia71321/17, 25735/18, 58858/18 et al.

Judgment 14.9.2021 [Section III]

Article 3

Proposed expulsion to Syria: expulsion would constitute a violation

Article 2

Proposed expulsion to Syria: expulsion would constitute a violation

Facts – The applicants, who are Syrian nationals, entered Russia on different types of visas between 2011 and 2014 and did not leave when the permitted period of their stay had expired. They were independently found guilty of breaching migration regulations by the District Courts, which ordered their administrative expulsion. The applicants appealed unsuccessfully against the judgments.

Law – Articles 2 and 3:

(a) Presentation of substantial grounds for believing that the applicants face a real risk of death or ill-treatment

The Court found that the national authorities had been presented with substantial grounds for believing that the applicants would face a real risk to their lives and personal integrity if they were expelled.

(b) Assessment by the domestic authorities of the claims of a real risk of death or ill-treatment

The applicants had provided the District Courts with incomplete information and little or no evidence with which to assess the risks that the applicants had been facing. However, the applicants could not meaningfully participate in those proceedings, and the Court considered that that inability to present their case – together with the fact that they had fled from a war-torn country and available information on security risks in Syria – had come to the attention of the District Courts. Moreover, a certain degree of speculation was inherent in the preventive purpose of Article 3 and it was not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment.

In those specific circumstances, it had been up to the District Courts, of their own motion, to ascertain and take into consideration information relating to Syria from “reliable and objective” international and national sources and to carry out a comprehensive analysis of whether substantial grounds had been shown for believing that there was a real risk that the applicants would face ill-treatment or death if the order for their expulsion were to be implemented. However, the District Courts had only reviewed and upheld the reasons put forward for the applicants’ expulsion (that is to say, the illegality of their conduct); they had given no meaningful assessment of any general risks that the applicants would face in the event of their forced return to Syria. That approach could not be considered compatible with the need for independent and rigorous scrutiny required in cases concerning expulsion. It was especially regrettable in the light of the reported Convention-compliant examination of similar cases by courts in other regions of Russia (see L.M. and Others v. Russia). The courts examining the cases of the applicants in the appeal proceedings had dismissed their claims regarding the alleged risk of ill-treatment, without effectively considering them on the merits, while referring to certain international sources on asylum and non-refoulement. However, that reference had been cursory and had not had any influence on the resolution of the applicants’ cases. Furthermore, even though the Appeal Court had given some individual consideration to some of the applicants’ claims, it had nevertheless mainly referred to information from unidentified Russian State bodies regarding the de-escalation of military conflict in Syria, and had largely ignored the international reports submitted to it by the applicants containing analysis suggesting that the contrary had in fact been the case and that the return of refugees had not been recommended.

The Court was not, therefore, persuaded that the applicants’ allegations had been duly examined by the domestic authorities in any of the sets of relevant proceedings. It therefore had to examine independently whether the applicants would be exposed to a risk of ill-treatment proscribed by Articles 2 and 3 in the event of their removal to Syria.

(c) Examination by the Court of the alleged risk of death or ill-treatment

The Court noted that the applicants’ submission had been based on more up-to-date data and had been corroborated by reliable and detailed reports by international bodies that unambiguously attested to daily ceasefire violations, country-wide hostilities, the devastating impact that armed conflict and indiscriminate attacks by the terrorist groups (including ISIL/Da’esh and Hay’at Tahrir al-Sham) and other non-State actors continued to have on the civilian population in all parts of the country, and the practice of arbitrary detentions and enforced disappearances of young men. The Court also took note of the latest available update from the Reconciliation Centre of the Russian Ministry of Defence’s website that provided that, despite the ceasefire arrangements, illegal armed groups operating in the Idlib de-escalation area had continued to breach the relevant agreements and the insurgents had carried out armed attacks in the province[s] of Aleppo, Hama and Latakia. All those reports were consistent with the Court’s findings in respect of the general security situation over the whole of Syria in O.D. v. Bulgaria.

Since, if the applicant has not already been deported, the material point in time for the assessment of risks in the country of destination must be that of the Court’s consideration of the case, the Court considered the latest country material available. Major military escalations had been reported in north-western Syria in 2020-2021, and clashes in the north-east had intensified, leading to scores of civilian casualties and injuries. In the central and eastern parts of the country, the resurgence of ISIL/Da’esh had been reported, and unrest had intensified and security conditions had worsened in the south. Furthermore, in the first six months of 2020, new episodes of torture of persons held by the Syrian authorities had been documented. Moreover, members of Hay’at Tahrir al-Sham in the governorates of Aleppo and Idlib had continued to detain, torture and execute civilians opposing their oppressive rule. Returnees had been reported to have been among those who had been subjected to harassment, arbitrary arrest, detention incommunicado, torture and other forms of ill-treatment, as well as to confiscation of property, for reasons including perceived anti-Government opinion; and both pro-Government forces and armed groups in 2020-2021 had continued to arbitrarily detain individuals in areas under their effective control.

The Government’s submissions focussed on the events of 2017-2018 and did not contain a sufficiently detailed assessment of security and humanitarian conditions in any of the governorates from which the applicants originated. Neither had they detailed any internal-flight/relocation alternatives that might have been available to the applicants, any relevant transit risks, or conditions prevailing in the camps for internally displaced persons. The applicants’ submissions, by contrast, clearly indicated that no reliance should be made by the states hosting Syrian citizens on the relocation of applicants in other areas of Syria, and the international reports that the Court had before it did not state that any particular part of Syria was safe for the involuntary return of refugees, despite the existence of ceasefire agreements and the perceived reduction in large-scale hostilities.

The Court noted the efforts made by the Russian Federation and other actors to find sustainable solutions for the return of Syrian refugees. However, in the light of the material that the Court had examined in the present case, the forced returns of refugees to Syria, at present and at least in the near future, did not appear feasible owing to the volatile security situation there.

Furthermore, in assessing the risks of ill-treatment for the applicant in the country of destination, the Court focuses on the foreseeable consequences of removal, in the light of the general situation there and of his or her personal circumstances. The applicants’ own accounts of events in Syria were consistent with information from reliable and objective sources about the general situation, indicating that their personal circumstances had put them at a heightened risk of ill-treatment. In particular, all of the applicants, as returnees, risked being subjected to harassment, arbitrary arrest and incommunicado detention upon arrival despite having obtained security approval, torture and other forms of ill-treatment, as well as property confiscation and movement restrictions, including on account of individuals’ perceived anti-Government opinion. Deaths in custody of returnees had also been reported. Lastly, all the applicants, being men of fighting age, had “risk profiles” and faced forced conscription into the army, with no exceptions allowed for conscientious objectors and harsh consequences for draft evasion. In addition, if they were to be considered by the authorities as real or perceived opponents of the Government, they would likely not benefit from the relevant amnesty decrees.

The Court accordingly found that substantial grounds had been shown for believing that at the time of the examination of the applicants’ cases, there existed a real risk that the applicants would face ill-treatment or death if the orders for their expulsion to Syria were to be implemented.

Conclusion: violation in the event of expulsion to Syria (unanimously).

The Court also held, unanimously, that there had been: a violation of Article 5 § 1 in respect of M.D. and M.O., who had each been detained at least two years pending expulsion; no violation of Article 5 § 1 in respect of M.A., A.A. and A.K.A., whose detention of between just over one month and two and a half months pending expulsion had not been excessive; and a violation of Article 5 § 4 in respect of M.D. and M.O., who had not benefited from effective judicial review of their detention pending expulsion.

Article 41: EUR 5,000 to M.D. and M.O. each, in respect of non-pecuniary damage.

Rule 39: The Court continued to indicate to the Government that it was desirable in the interests of the proper conduct of the proceedings not to expel the relevant applicants until such time as the present judgment became final or until further order.

(See also L.M. and Others v. Russia, 40081/14 et al., 15 October 2015, Legal Summary; O.D. v. Bulgaria, 34016/18, 10 October 2019)

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