Last Updated on July 15, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 40314/16
A.A.
against Russia
The European Court of Human Rights (Third Section), sitting on 5 June 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and FatoşAracı, Deputy Section Registrar,
Having regard to the above application lodged on 13 July 2016,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
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 A.A., is a Syrian national who was born in 1979.
2. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms R. Magomedova, a lawyer practising in Moscow.
3. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s arrival in Russia
5. The applicant is a Syrian national who was born in Aleppo.
6. In 2008‑11 he travelled to Russia on five occasions and each time stayed for several months, taking up various low-skilled jobs. He did not apply for a work permit. On 30 November 2011 he arrived from Syria to Moscow on a multi‑entry business visa which expired on 27 November 2012. He has not left Russia since and has not registered with the Russian migration authorities. It appears that in 2008‑14 he resided in Moscow and in 2014‑16 in Dagestan.
2. The applicant’s first attempt to seek asylum
7. On 21 November 2013 the applicant applied for refugee status. On 10 February 2014 the Federal Migration Service Department in Moscow Region (“the FMS Moscow”) rejected the application. The applicant did not submit copies of the relevant documents, and it appears that he did not appeal. He was in possession of a certificate confirming his application for this status, valid until 21 August 2014.
8. On 24 March 2014 the applicant applied for temporary asylum. He did not submit a copy of the application. According to the summary of his submissions by the domestic authorities, he referred in his requests both to economic reasons and to the ongoing military conflict in Syria and submitted that he wished to regularise his stay in Russia and to obtain a work permit.
9. From an incomplete copy of the relevant domestic decision it appears that on 18 June 2014 the FMS Moscow rejected his application as ill‑founded, having noted that the applicant had arrived in Russia alone, whilst his entire family – namely, his mother, father, two sisters, three brothers, his wife and three minor children – were living in Syria at the material time, and three other brothers were living in Beirut, Lebanon. The migration authority concluded that “if [he were] returned, the applicant would not be exposed to greater danger than his family members”. The FMS Moscow further noted that the applicant had not been involved in any incident involving violence, had not been subject to criminal prosecution, and therefore there was nothing to suggest that he would be persecuted on the grounds of his origin, religious beliefs or any other grounds. The migration authority considered that he had rather left his home country owing to the difficult economic situation, which did not constitute grounds for granting temporary asylum.
10. On 15 July 2014 the applicant appealed, referring to ongoing hostilities in Syria. He submitted that his house in Aleppo had been destroyed, that his brother had been wounded and had been treated in hospital and that he had lost contact with his family members and had no information as to whether they were alive or not.
11. On 3 October 2014 the Federal Migration Service of the Russian Federation (the FMS Russia) rejected the appeal, referring to the applicant’s statement that he wished to regularise his situation in Russia so that he could be lawfully employed there. The FMS Russia noted that he had only introduced his request for temporary asylum two years after the outbreak of hostilities in Syria; and that a part of his family were living in Syria and there was nothing to suggest that the applicant would have run an increased risk of persecution if returned to his home country. It appears that he did not appeal against the refusal to a court.
3. Administrative removal proceedings
12. On 12 May 2016 the Moscow police found out that the applicant had overstayed his visa. He was brought to a police station where an administrative-offence record was compiled, and he was arrested for a breach of immigration rules. It appears that he was interviewed at the police station and submitted that in March 2016 his wife and four children had left Syria for Turkey as their house in Aleppo had been destroyed.
13. On 13 May 2016 the Koptevskiy District Court of Moscow (“the Koptevskiy Court”) found him, at first instance, in breach of residence regulations, fined him 5,000 Russian roubles (approximately 60 euros) and further imposed the penalty of administrative removal on him (Article 18.8‑3 of the Code of Administrative Offences). Pending removal, he was to be detained in the centre for detention of aliens in Moscow.
14. On 23 May 2016 the applicant appealed. He argued that the first‑instance court had not paid proper attention to his argument relating to the risk to his life and physical integrity in the event of his removal to Syria. He submitted that he had not left Russia after the refusal to grant him refugee status because of the ongoing hostilities in his home country. He referred to the UNHCR’s Report “International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic. Update IV” (HCR/PC/SYR/01, November 2015), which stated, in particular, that “the humanitarian situation in Syria [was] continuing to deteriorate rapidly and nearly all parts of Syria [were] embroiled in violence” at the material time.
15. On 12 July 2016 the Moscow City Court upheld the judgment. The court found that since 22 August 2014 the applicant had resided in Russia in breach of the residence regulations, and that the lower court had correctly established the circumstances of the case. Without giving further details, the court noted that the penalty had been chosen “with due regard to the nature and specific circumstances of the offence, as well as the [applicant’s] personality”. The court noted that a mere reference to the ongoing hostilities in Syria did not constitute a circumstance automatically precluding application of the removal penalty. The applicant had not been granted refugee status, nor was he an asylum seeker at the material time. Without giving any details the court found that the penalty applied was the only possible means to “strike a fair balance between the public and private interests in the sphere of the administrative justice”. The court finally rejected the remainder of the applicant’s arguments, having found that they constituted an attempt to reinterpret the facts of the case in his favour.
16. It appears that on 15 July 2016 enforcement proceedings were opened in respect of the judgment of 13 May 2016.
4. Rule 39 of the Rules of Court
17. On 19 July 2016 the Court indicated to the Government, under Rule 39 of the Rules of Court, not to remove the applicant from Russia to Syria or another country, by way of administrative removal, expulsion or any other similar measure, until further notice and for the duration of the proceedings before the Court.
5. Temporary asylum proceedings in 2016 and subsequent developments
18. On 15 September 2016 the applicant applied for temporary asylum. He referred to ongoing hostilities in Syria and to the application of Rule 39 to his case.
19. On 21 October 2016 the Moscow office of the Federal Migration Service (“the Moscow FMS”) granted the applicant temporary asylum until 21 October 2017. The Moscow FMS noted from the case file that the applicant was married, with no children, and his wife was still in Aleppo. His sister was living in Turkey, and his three brothers were living in Aleppo at the material time. The Moscow FMS further noted the interim measure applied by the Court, as well as the State obligations pursuant to the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment not to expel, return or extradite a person to another State where there were substantial grounds for believing that he or she would be in danger of being subjected to torture, and concluded as follows:
“In connection with the application of Rule 39 of the Rules of Court, granting temporary asylum to [the applicant] as a person who has a well-founded fear of becoming a victim of inhuman treatment if returned to Syria, guarantees observance by the Russian Federation of its international obligations.
[The applicant] currently needs to be granted temporary asylum as an additional guarantee of his non-removal to Syria.”
20. On 13 December 2016 the applicant received a copy of the decision.
21. On 13 January 2017 the applicant’s lawyer lodged an application with the Koptevskiy Court in accordance with Article 31.8 of the Code of Administrative Offences (see paragraph 26 below), seeking to discontinue “the enforcement of the judgment of 12 July 2016 of the Koptevskiy Court”[1] in the part concerning the applicant’s removal from the territory of the Russian Federation.
22. On 3 February 2017 the Koptevskiy Courtordered the discontinuation of the enforcement of the “judgment of 12 July 2016 by the Koptevskiy Court”[2] in so far as the order to remove the applicant from Russia was concerned. The court found that the legal basis for the enforcement of the removal order no longer existed, as the applicant had been granted temporary asylum. The decision was not appealed against and became final.
23. On 7 February 2017 the bailiffs service decided to discontinue the enforcement proceedings of 15 July 2016 initiated in accordance with the enforcement document “Decision no. BN of 13 May 2016 by the Koptevskiy Court”[3], and to annul any measures of compulsory enforcement and any “limitations” (ограничения) for the debtor. The bailiffs referred, in particular, to section 43(2) of the Enforcement Act (see paragraph 27 below). The decision was not appealed against within the time-limit set out for this purpose and became final.
24. It appears from the applicant’s observations of 3 August 2017 that the applicant was released from detention on an unknown date after 3 February 2017.
25. In December 2017 the Court invited the applicant to provide updated information on his temporary-asylum status. He did not reply.
B. Relevant domestic law and practice
26. Article 31.7 of the Code of Administrative Offences (“the CAO”) provides that when a court or an authority which has issued a decision imposing an administrative penalty discontinues the enforcement of that decision in a number of specific cases (such as, for instance, an amnesty act, the debtor’s death, a change of legislation, or the expiration of the procedural time-limits), or in the event of “a delivery, in cases provided for by the present Code, of a decision to discontinue the execution of the decision imposing an administrative penalty” (Article 31.7 § 6 of the CAP) – such as, for instance, the expiry of the two-year time-limit for enforcement of a decision imposing an administrative penalty (Article 31.9). The court decides whether to discontinue the enforcement of a decision imposing an administrative penalty within three days of the date on which the grounds to discontinue the execution arose (Article 31.8 § 1). The court delivers a ruling, which must be sent to the applicant within three days (Article 31.8 § 3).
27. Section 43(2) of the 2007 Enforcement Act stipulates that enforcement proceedings should be terminated if it is no longer possible to enforce a writ of execution obliging a debtor to perform or abstain from performing certain actions. Lawful requirements of a bailiff are binding on all State and municipal authorities, citizens and organisations and should be complied with across the entirety of Russian territory (section 6 of the Enforcement Act). A writ of execution in respect of which the enforcement proceedings have been discontinued is kept in the case file and cannot be re‑submitted for execution (section 44(5) of the Act).
28. Other relevant domestic law and practice relating to the expulsion and detention of foreign nationals in Russia, refugee status, and temporary asylum, and the situation of Syrian nationals in the country, is summarised in the Court’s judgments in the cases of L.M.and Others v. Russia (nos. 40081/14 and 2 others, §§ 61-75, 15 October 2015), and S.K. v. Russia (no. 52722/15, §§ 23-41, 14 February 2017).
C. Other relevant material
29. For a summary of the international and national reports concerning the humanitarian situation in Syria issued between November 2015 and October 2016, see S.K. v. Russia (cited above, §§ 46-47).
COMPLAINTS
30. The applicant complained under Articles 2 and 3 of the Convention that in the event of his removal to Syria he would face a risk of death and/or torture there and that the domestic courts had failed to examine his arguments to that effect. In his observations dated 3 August 2017 he submitted, for the first time, that his detention had been in breach of Article 5 §§ 1 and 4 of the Convention and, in particular, that after 21 October 2016 he had been detained without a legal basis.
THE LAW
A. Scope of the applicant’s complaints
31. The Court notes that the applicant, who was represented in the proceedings before the Court, did not raise his complaint under Article 5 of the Convention in his original application. Furthermore, he did not inform the Court of any new facts relating to his situation after 12 October 2016 – the date of his latest correspondence to the Court – even though he had been expressly invited to update the Court on any new important developments in his case. As a result, no issue under Article 5 was communicated to the Government, and the Government did not comment on it. In his observations, the applicant made new submissions regarding the alleged violation of his rights under Article 5 of the Convention (see paragraph 30 above). However, he did not provide an explanation as to why he had failed to raise these complaints at an earlier stage before communication of his case to the Government. Accordingly, the Court considers that the Article 5 complaint lodged by the applicant later in the proceedings does not constitute a mere elaboration on his original complaints to the Court, and therefore it is not appropriate to deal with this newly raised matter in the present case (see, in identical circumstances, M.S.A. and Others v. Russia, nos. 29957/14 and 8 others, § 60, 21 November 2017, and RafigAliyev v. Azerbaijan, no. 45875/06, §§ 69-70, 6 December 2011, with further references).
B. Complaint under Article 2 and 3 of the Convention
32. The Government submitted that on 21 October 2016 the applicant had been granted temporary asylum. His stay in Russia had been authorised until 21 October 2017 and his removal from Russia had been prohibited. On the basis of that decision, on 3 February 2017 the domestic court had ordered that the enforcement of the removal order be discontinued, and on 7 February 2017 the respective enforcement proceedings had been discontinued. They therefore claimed that the applicant had lost his victim status in respect of his complaints under Articles 2 and 3 of the Convention.
33. The applicant acknowledged that he had received temporary asylum in Russia. However, he maintained his complaint.
34. The Court reiterates that, in principle, a successful application for temporary asylum would be capable of suspending the enforcement of administrative removal (see S.K. v. Russia, cited above, § 94, and Tukhtamurodov v. Russia (dec.), no. 21762/14, 20 January 2015). The Court notes, however, that temporary asylum in this case was granted mainly with reference to the application of an interim measure under Rule 39 of the Rules of Court (see, mutatis mutandis, Allanazarova v. Russia, no. 46721/15, § 59, 14 February 2017). In any event, the Court considers of crucial importance the fact that, pursuant to the decision to grant temporary asylum, on 3 February 2017 the enforcement of the sanction in the form of the removal was discontinued. Further, on 7 February 2017 the enforcement proceedings in respect of the removal were formally terminated (see paragraphs 22 and 23 above). While the applicant’s representative’s submissions and the decision of 3 February 2017 contained an apparent clerical error in so far as the date of the initial judgment imposing the sanction was concerned, it is common ground between the parties – and, indeed, follows unequivocally from the bailiff’s decision of 7 February 2017 – that the enforcement of the judgment of 13 May 2016, which took effect on 12 July 2017, is no longer possible.
35. The Court does not lose sight of the fact that, as noted above, the decision to discontinue the enforcement of the removal order was taken with reference to the temporary asylum granted to the applicant, and that the temporary-asylum period expired on 21 October 2017. The Court observes that a person granted temporary asylum in Russia can seek to renew his or her temporary asylum and appeal against any adverse decision (seeTukhtamurodov, cited above, § 37). The applicant did not specify in his observations whether he had requested an extension of his temporary asylum, and did not submit information on any further developments in his case, despite the Court’s specific request (see paragraph 25 above).
36. In the absence of any submissions or comments from the applicant either on any changes in his asylum status, or any particularities of the domestic procedure initiated by the defence and related to the termination of the enforcement proceedings in respect of the removal order, the Court finds no reason to doubt that the removal order of 13 May 2016 is no longer enforceable. It appears that the above-mentioned decisions of 3 and 7 February 2017 remain in effect at present, and the initial removal order can no longer be executed (contrast Allanazarova, cited above, § 60, and NabidAbdullayevv. Russia, no. 8474/14, § 49, 15 October 2015).
37. Therefore, as matters currently stand, the applicant no longer faces imminent risk of removal to Syria and, accordingly, is no longer at risk of treatment in breach of Articles 2 and 3 of the Convention. Thus, it must be concluded that the factual and legal circumstances which were at the heart of the applicant’s complaint in that connection are no longer valid (see M.S.A. and Others v. Russia, cited above, §§ 43-48).
38. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
39. The above findings do not prevent the applicant from lodging a new application with the Court and making use of the available procedures ‒ including the one under Rule 39 of the Rules of Court ‒ in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Tukhtamurodov, cited above, § 41;Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011; and Bakoyev v. Russia, no. 30225/11, § 100, 5 February 2013).
C. Complaint under Article 13 of the Convention
40. The applicant may be understood to have complained that he had not had at his disposal effective domestic remedies in respect of his claims, in breach of Article 13, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
41. The Government contested that argument.
42. The Court notes that this complaint is closely linked to the one examined above under Articles 2 and 3 of the Convention and therefore must also be declared inadmissible. The Court therefore rejects it pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
D. Rule 39
43. In view of the above, indication of an interim measure under Rule 39 of the Rules of Court comes to an end.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 June 2018.
Fatoş Aracı Alena Poláčková
Deputy Registrar President
__________________
[1]. As in the lawyer’s submissions to the domestic court
[2]. As in the domestic court’s decision
[3]. As in the bailiffs’ decision
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