THIRD SECTION
\nDECISION<\/p>\n
Application no. 40314\/16
\nA.A.
\nagainst Russia<\/p>\n
The European Court of Human Rights (Third Section), sitting on 5 June 2018 as a Committee composed of:<\/p>\n
Alena Pol\u00e1\u010dkov\u00e1, President,
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Fato\u015fArac\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 13\u00a0July 2016,<\/p>\n
Having regard to the interim measure indicated to the respondent Government under Rule\u00a039 of the Rules of Court,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr A.A., is a Syrian national who was born in 1979.<\/p>\n 2.\u00a0\u00a0The President granted the applicant\u2019s request for his identity not to be disclosed to the public (Rule\u00a047\u00a0\u00a7\u00a04). He was represented before the Court by Ms R. Magomedova, a lawyer practising in Moscow.<\/p>\n 3.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) 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.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 4.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0The applicant\u2019s arrival in Russia<\/em><\/p>\n 5.\u00a0\u00a0The applicant is a Syrian national who was born in Aleppo.<\/p>\n 6.\u00a0\u00a0In 2008\u201111 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\u00a0November 2011 he arrived from Syria to Moscow on a multi\u2011entry business visa which expired on 27\u00a0November 2012. He has not left Russia since and has not registered with the Russian migration authorities. It appears that in 2008\u201114 he resided in Moscow and in 2014\u201116 in Dagestan.<\/p>\n 2.\u00a0\u00a0The applicant\u2019s first attempt to seek asylum<\/em><\/p>\n 7.\u00a0\u00a0On 21\u00a0November 2013 the applicant applied for refugee status. On 10\u00a0February 2014 the Federal Migration Service Department in Moscow Region (\u201cthe FMS Moscow\u201d) 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\u00a0August 2014.<\/p>\n 8.\u00a0\u00a0On 24\u00a0March 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.<\/p>\n 9.\u00a0\u00a0From an incomplete copy of the relevant domestic decision it appears that on 18\u00a0June 2014 the FMS Moscow rejected his application as ill\u2011founded, having noted that the applicant had arrived in Russia alone, whilst his entire family \u2013 namely, his mother, father, two sisters, three brothers, his wife and three minor children \u2013 were living in Syria at the material time, and three other brothers were living in Beirut, Lebanon. The migration authority concluded that \u201cif [he were] returned, the applicant would not be exposed to greater danger than his family members\u201d. 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.<\/p>\n 10.\u00a0\u00a0On 15\u00a0July 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.<\/p>\n 11.\u00a0\u00a0On 3\u00a0October 2014 the Federal Migration Service of the Russian Federation (the FMS Russia) rejected the appeal, referring to the applicant\u2019s 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.<\/p>\n 3.\u00a0\u00a0Administrative removal proceedings<\/em><\/p>\n 12.\u00a0\u00a0On 12\u00a0May 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.<\/p>\n 13.\u00a0\u00a0On 13\u00a0May 2016 the Koptevskiy District Court of Moscow (\u201cthe Koptevskiy Court\u201d) 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\u00a018.8\u20113 of the Code of Administrative Offences). Pending removal, he was to be detained in the centre for detention of aliens in Moscow.<\/p>\n 14.\u00a0\u00a0On 23\u00a0May 2016 the applicant appealed. He argued that the first\u2011instance 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\u2019s Report \u201cInternational Protection Considerations with Regard to People Fleeing the Syrian Arab Republic. Update IV\u201d (HCR\/PC\/SYR\/01, November 2015), which stated, in particular, that \u201cthe humanitarian situation in Syria [was] continuing to deteriorate rapidly and nearly all parts of Syria [were] embroiled in violence\u201d at the material time.<\/p>\n 15.\u00a0\u00a0On 12\u00a0July 2016 the Moscow City Court upheld the judgment. The court found that since 22\u00a0August 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 \u201cwith due regard to the nature and specific circumstances of the offence, as well as the [applicant\u2019s] personality\u201d. 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 \u201cstrike a fair balance between the public and private interests in the sphere of the administrative justice\u201d. The court finally rejected the remainder of the applicant\u2019s arguments, having found that they constituted an attempt to reinterpret the facts of the case in his favour.<\/p>\n 16.\u00a0\u00a0It appears that on 15\u00a0July 2016 enforcement proceedings were opened in respect of the judgment of 13\u00a0May 2016.<\/p>\n 4.\u00a0\u00a0Rule\u00a039 of the Rules of Court<\/em><\/p>\n 17.\u00a0\u00a0On 19\u00a0July 2016 the Court indicated to the Government, under Rule\u00a039 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.<\/p>\n 5.\u00a0\u00a0Temporary asylum proceedings in 2016 and subsequent developments<\/em><\/p>\n 18.\u00a0\u00a0On 15\u00a0September 2016 the applicant applied for temporary asylum. He referred to ongoing hostilities in Syria and to the application of Rule\u00a039 to his case.<\/p>\n 19.\u00a0\u00a0On 21\u00a0October 2016 the Moscow office of the Federal Migration Service (\u201cthe Moscow FMS\u201d) granted the applicant temporary asylum until 21\u00a0October 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:<\/p>\n \u201cIn connection with the application of Rule\u00a039 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.<\/p>\n [The applicant] currently needs to be granted temporary asylum as an additional guarantee of his non-removal to Syria.\u201d<\/p>\n 20.\u00a0\u00a0On 13\u00a0December 2016 the applicant received a copy of the decision.<\/p>\n 21.\u00a0\u00a0On 13\u00a0January 2017 the applicant\u2019s lawyer lodged an application with the Koptevskiy Court in accordance with Article\u00a031.8 of the Code of Administrative Offences (see paragraph\u00a026 below), seeking to discontinue \u201cthe enforcement of the judgment of 12\u00a0July 2016 of the Koptevskiy Court\u201d[1] in the part concerning the applicant\u2019s removal from the territory of the Russian Federation.<\/p>\n 22.\u00a0\u00a0On 3\u00a0February 2017 the Koptevskiy Courtordered the discontinuation of the enforcement of the \u201cjudgment of 12\u00a0July 2016 by the Koptevskiy Court\u201d[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.<\/p>\n 23.\u00a0\u00a0On 7\u00a0February 2017 the bailiffs service decided to discontinue the enforcement proceedings of 15\u00a0July 2016 initiated in accordance with the enforcement document \u201cDecision no.\u00a0BN of 13\u00a0May 2016 by the Koptevskiy Court\u201d[3], and to annul any measures of compulsory enforcement and any \u201climitations\u201d (\u043e\u0433\u0440\u0430\u043d\u0438\u0447\u0435\u043d\u0438\u044f) for the debtor. The bailiffs referred, in particular, to section 43(2) of the Enforcement Act (see paragraph\u00a027 below). The decision was not appealed against within the time-limit set out for this purpose and became final.<\/p>\n 24.\u00a0\u00a0It appears from the applicant\u2019s observations of 3\u00a0August 2017 that the applicant was released from detention on an unknown date after 3\u00a0February 2017.<\/p>\n 25.\u00a0\u00a0In December 2017 the Court invited the applicant to provide updated information on his temporary-asylum status. He did not reply.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 26.\u00a0\u00a0Article\u00a031.7 of the Code of Administrative Offences (\u201cthe CAO\u201d) 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\u2019s death, a change of legislation, or the expiration of the procedural time-limits), or in the event of \u201ca delivery, in cases provided for by the present Code, of a decision to discontinue the execution of the decision imposing an administrative penalty\u201d (Article\u00a031.7\u00a0\u00a7\u00a06 of the CAP) \u2013 such as, for instance, the expiry of the two-year time-limit for enforcement of a decision imposing an administrative penalty (Article\u00a031.9). 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\u00a031.8\u00a0\u00a7\u00a01). The court delivers a ruling, which must be sent to the applicant within three days (Article\u00a031.8\u00a0\u00a7\u00a03).<\/p>\n 27.\u00a0\u00a0Section\u00a043(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\u00a06 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\u2011submitted for execution (section\u00a044(5) of the Act).<\/p>\n 28.\u00a0\u00a0Other 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\u2019s judgments in the cases of L.M.and Others v. Russia (nos.\u00a040081\/14 and 2\u00a0others, \u00a7\u00a7\u00a061-75, 15 October 2015), and S.K. v. Russia (no.\u00a052722\/15, \u00a7\u00a7 23-41, 14 February 2017).<\/p>\n C.\u00a0\u00a0Other relevant material<\/strong><\/p>\n 29.\u00a0\u00a0For a summary of the international and national reports concerning the humanitarian situation in Syria issued between November 2015 and October\u00a02016, see S.K. v. Russia (cited above, \u00a7\u00a7 46-47).<\/p>\n COMPLAINTS<\/strong><\/p>\n 30.\u00a0\u00a0The applicant complained under Articles\u00a02 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\u00a0August 2017 he submitted, for the first time, that his detention had been in breach of Article\u00a05\u00a0\u00a7\u00a7\u00a01 and 4 of the Convention and, in particular, that after 21\u00a0October 2016 he had been detained without a legal basis.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Scope of the applicant\u2019s complaints<\/strong><\/p>\n 31.\u00a0\u00a0The Court notes that the applicant, who was represented in the proceedings before the Court, did not raise his complaint under Article\u00a05 of the Convention in his original application. Furthermore, he did not inform the Court of any new facts relating to his situation after 12\u00a0October 2016 \u2013 the date of his latest correspondence to the Court \u2013 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\u00a05 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\u00a05 of the Convention (see paragraph\u00a030 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\u00a05 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.\u00a0Russia, nos.\u00a029957\/14 and 8\u00a0others, \u00a7\u00a060, 21\u00a0November 2017, and RafigAliyev v.\u00a0Azerbaijan, no.\u00a045875\/06, \u00a7\u00a7\u00a069-70, 6\u00a0December 2011, with further references).<\/p>\n B.\u00a0\u00a0Complaint under Article\u00a02 and 3 of the Convention<\/strong><\/p>\n 32.\u00a0\u00a0The Government submitted that on 21\u00a0October 2016 the applicant had been granted temporary asylum. His stay in Russia had been authorised until 21\u00a0October 2017 and his removal from Russia had been prohibited. On the basis of that decision, on 3\u00a0February 2017 the domestic court had ordered that the enforcement of the removal order be discontinued, and on 7\u00a0February 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\u00a02 and 3 of the Convention.<\/p>\n 33.\u00a0\u00a0The applicant acknowledged that he had received temporary asylum in Russia. However, he maintained his complaint.<\/p>\n 34.\u00a0\u00a0The 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.\u00a0Russia, cited above, \u00a7\u00a094, and Tukhtamurodov v. Russia (dec.), no.\u00a021762\/14, 20\u00a0January 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\u00a039 of the Rules of Court (see, mutatis mutandis, Allanazarova v.\u00a0Russia, no.\u00a046721\/15, \u00a7\u00a059, 14\u00a0February 2017). In any event, the Court considers of crucial importance the fact that, pursuant to the decision to grant temporary asylum, on 3\u00a0February 2017 the enforcement of the sanction in the form of the removal was discontinued. Further, on 7\u00a0February 2017 the enforcement proceedings in respect of the removal were formally terminated (see paragraphs\u00a022 and 23 above). While the applicant\u2019s representative\u2019s submissions and the decision of 3\u00a0February 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 \u2013 and, indeed, follows unequivocally from the bailiff\u2019s decision of 7\u00a0February 2017 \u2013 that the enforcement of the judgment of 13\u00a0May 2016, which took effect on 12\u00a0July 2017, is no longer possible.<\/p>\n 35.\u00a0\u00a0The 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\u00a0October 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, \u00a7\u00a037). 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\u2019s specific request (see paragraph\u00a025 above).<\/p>\n 36.\u00a0\u00a0In 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\u00a0May 2016 is no longer enforceable. It appears that the above-mentioned decisions of 3 and 7\u00a0February 2017 remain in effect at present, and the initial removal order can no longer be executed (contrast Allanazarova, cited above, \u00a7\u00a060, and NabidAbdullayevv. Russia, no. 8474\/14, \u00a7\u00a049, 15\u00a0October 2015).<\/p>\n 37.\u00a0\u00a0Therefore, 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\u00a02 and 3 of the Convention. Thus, it must be concluded that the factual and legal circumstances which were at the heart of the applicant\u2019s complaint in that connection are no longer valid (see M.S.A. and Others v.\u00a0Russia, cited above, \u00a7\u00a7\u00a043-48).<\/p>\n 38.\u00a0\u00a0It follows that this part of the application must be rejected pursuant to Article\u00a035\u00a0\u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.<\/p>\n 39.\u00a0\u00a0The above findings do not prevent the applicant from lodging a new application with the Court and making use of the available procedures \u2012 including the one under Rule\u00a039 of the Rules of Court \u2012 in respect of any new circumstances, in compliance with the requirements of Articles\u00a034 and\u00a035 of the Convention (see Tukhtamurodov, cited above, \u00a7\u00a041;Dobrov v.\u00a0Ukraine (dec.), no. 42409\/09, 14 June 2011; and Bakoyev v. Russia, no.\u00a030225\/11, \u00a7\u00a0100, 5\u00a0February 2013).<\/p>\n C.\u00a0\u00a0Complaint under Article\u00a013 of the Convention<\/strong><\/p>\n 40.\u00a0\u00a0The 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\u00a013, which reads as follows:<\/p>\n \u201cEveryone 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.\u201d<\/p>\n 41.\u00a0\u00a0The Government contested that argument.<\/p>\n 42.\u00a0\u00a0The Court notes that this complaint is closely linked to the one examined above under Articles\u00a02 and 3 of the Convention and therefore must also be declared inadmissible. The Court therefore rejects it pursuant to Article\u00a035\u00a0\u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.<\/p>\n D.\u00a0\u00a0Rule\u00a039<\/strong><\/p>\n 43.\u00a0\u00a0In view of the above, indication of an interim measure under Rule 39 of the Rules of Court comes to an end.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 28 June 2018.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alena Pol\u00e1\u010dkov\u00e1 __________________<\/p>\n [1].\u00a0\u00a0As in the lawyer\u2019s submissions to the domestic court
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\n[2].\u00a0\u00a0As in the domestic court\u2019s decision
\n[3].\u00a0\u00a0As in the bailiffs\u2019 decision<\/p>\n