Last Updated on May 19, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 12030/16
Bakir Farouq Mohammed MIRAN
against Russia
The European Court of Human Rights (Third Section), sitting on 2 October 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 2 March 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Bakir Farouq Mohammed Miran, is an Iraqi national, who was born in 1984. He was represented before the Court by Ms E. Davidyan and Ms D. Trenina, lawyers practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
3. On 4 March 2016 the Court denied the applicant’s request for an interim measure preventing his removal from Russia for the duration of the proceedings before the Court (Rule 39 of the Rules of Court).
4. On 4 September 2017 the complaints under Article 5 §§ 1 and 4 of the Convention were communicated to the Government.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicant is a Sunni Muslim born in Baghdad. In 2007 together with his mother and brother he fled to Syria where he was granted refugee status by the United Nations High Commissioner for Refugees (UNHCR).
7. According to the applicant, he first came to Russia on 19 January 2009 having been admitted to study in a university. He graduated in 2013 and continued to work as a hairdresser.
8. In August 2015 the applicant’s passport expired. As he had to apply for a new one in person, he went to Iraq. Having applied for a new passport, he returned to Russia on 12 September 2015 on the basis of a tourist visa valid until 10 October 2015.
9. On 11 November 2015 the applicant was arrested in Tula because his visa had expired on 10 October 2015.
10. On 12 November 2015 the Sovetskiy District Court of Tula found the applicant guilty of a breach of immigration rules, imposed on him a fine and ordered his administrative removal.
11. The applicant was placed in detention pending administrative removal. According to the applicant’s submissions he had no Iraqi passport on him in the detention facility and refused to provide it to the authorities.
12. On 25 November 2015 the Tula Regional Court dismissed the appeal and upheld the decision on the applicant’s expulsion.
13. On 12 January 2016 the applicant requested review of the decisions on his administrative removal of 12 and 25 November 2015. On 11 February 2016 the President of the Tula Regional Court dismissed the request.
14. On 9 June 2016 the Tula Regional Court having considered the applicant’s complaints annulled the removal order. The applicant was immediately released.
15. On 27 July 2017 the applicant obtained temporary residence in Russia following his marriage with a Russian citizen.
COMPLAINTS
16. The applicant complained under Article 5 §§ 1 and 4 of the Convention about the alleged arbitrariness of his detention pending administrative removal and the lack of periodic judicial review between 12 November 2015 and 9 June 2016 in respect of the lawfulness of the detention.
THE LAW
17. The applicant complained under Article 5 §§ 1 (f) and 4 of the. Article 5 in the relevant part reads:
“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.”
18. The Government in their observations stated that the period of the applicant’s detention had been pre-determined by the on-going removal proceedings and ceased on the day the final judgment had been adopted in the applicant’s case. In respect of the periodic judicial review they stated that the applicant could challenge his on-going detention by challenging the actions of the law-enforcement agencies.
19. The applicant’s representatives in their observations stated that the seven-months detention had been unlawful, since the removal did not happen for the sole reason of indication of an interim measure by the Court. Referring the Court’s past case-law on the matter they further stated that there had been no possibility for him to obtain review of lawfulness of his continued detention.
20. The Court reiterates that the exception contained in sub-paragraph (f) of Article 5 § 1 of the Convention requires only that “action is being taken with a view to deportation or extradition”, without any further justification (see, inter alia, Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996‑V), and that deprivation of liberty will be justified as long as deportation or extradition proceedings are in progress (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009).
21. In this regard the Court emphasises that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features (see, mutatis mutandis, McKay v. the United Kingdom [GC], no. 543/03, §§ 41-45, ECHR 2006‑X) and that the arguments for and against release must not be “general and abstract” (see, for example, Khudoyorov v. Russia, no. 6847/02, § 173, ECHR 2005‑X (extracts)), but contain references to the specific facts and the applicant’s personal circumstances justifying his detention.
22. Turning to the present case, the Court notes that the applicant’s complaints concern the period of seven months, during which the applicant was detained pending administrative removal between 12 November 2015 and 9 June 2016. Contrary to the allegation of the applicant’s representatives no interim measure under Rule 39 had been indicated by the Court in the present case, in fact the applicant’s request for such measure was denied on 4 March 2016. During the above period the national authorities actively pursued the proceedings aimed at the applicant’s expulsion. After 25 November 2015, the date on which the removal order had become final, they diligently took the necessary steps to enforce it. The applicant’s self-admitted refusal to provide the Russian authorities with a copy of his Iraqi identification papers, the need to contact the Iraqi diplomatic representations in Russia, and the subsequent asylum and removal complaints appear to have been the only reasons preventing the removal. On 9 June 2016, the date the Tula Regional Court annulled the removal order, the applicant was released from detention.
23. The Court considers that there is no evidence indicating any arbitrariness in respect of the applicant’s detention or, more particularly, bad faith, deception or unjustified delays in respect of the authorities’ conduct (see, conversely, Bozano v. France, 18 December 1986, § 60, Series A no. 111, and Čonka v. Belgium, no. 51564/99, § 41, ECHR 2002‑I).
24. Lastly, the Court notes that the applicant’s complaints concerning the availability of periodic judicial review of the lawfulness of his detention pending expulsion are couched in general and abstract terms. Given the expeditiousness of the national proceedings, the consideration of the applicant’s claims by the domestic courts, and the initiative demonstrated by the authorities, together with the relatively short period of detention, the applicant’s individual situation was devoid of the deficiencies alleged (see similarly M.S. v. Russia (dec.), no. 61998/15, §§ 25-28, 10 October 2017).
25. Accordingly, having regard to all the material in its possession and the conclusions above, the Court finds that complaints related to the applicant’s detention pending expulsion did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this complaint must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 October 2018.
Fatoş Aracı Alena Poláčková
Deputy Registrar President
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