THIRD SECTION
\nCASE OF M.K. v. RUSSIA
\n(Application no. 35346\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n27 February 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of M.K. v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Luis L\u00f3pez Guerra, President, Having deliberated in private on 6 February 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 35346\/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Syrian national, Mr M.K. (\u201cthe applicant\u201d), on 21\u00a0June 2016. The President of the Section acceded to the applicant\u2019s request not to have his name disclosed (Rule 47 \u00a7 4 of the Rules of Court).<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms E. Davidyan and Ms D. Trenina, lawyers practising in Moscow. The Russian Government (\u201cthe Government\u201d) were represented by their Agent, 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 3.\u00a0\u00a0On 10 November 2016 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant, a Syrian national, was born in 1993 and currently resides in Khartoum, Sudan.<\/p>\n 5.\u00a0\u00a0On 24 April 2015 the applicant arrived in Russia, being in possession of a study visa. He enrolled in the Izhevsk State Technical University and had his registered residence in the town of Izhevsk. His visa expired on 26\u00a0April 2016.<\/p>\n 6.\u00a0\u00a0On 4 May 2016 the applicant applied for refugee status alleging the risks to his life and safety in the light of the on-going conflict in Syria. The request and the subsequent appeals were dismissed by the Russian migration authorities and the courts.<\/p>\n 7.\u00a0\u00a0On 8 June 2016 the applicant was arrested and put in detention by the migration authorities.<\/p>\n 8.\u00a0\u00a0By a judgment of 9 June 2016 the Oktyabrskiy District Court of Izhevsk found the applicant in breach of migration rules, an offence under Article 18.8 \u00a7 1.1 of the Code of Administrative Offences, and ordered his expulsion. In order to facilitate enforcement, the court ordered that the applicant be placed in detention.<\/p>\n 9.\u00a0\u00a0On 10 June 2016 the Supreme Court of the Udmurtiya Republic upheld the lower court\u2019s judgment.<\/p>\n 10.\u00a0\u00a0On 22 June 2016 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Syria for the duration of the proceedings before the Court. Since that date the enforcement of the applicant\u2019s expulsion was monthly postponed by the domestic courts.<\/p>\n 11.\u00a0\u00a0On 13 January 2017 the Supreme Court of the Russian Federation on appeal amended the lower courts\u2019 judgments and excluded administrative removal from the sanction, since it would have exposed the applicant\u2019s life to risk in Syria.<\/p>\n 12.\u00a0\u00a0On 20 January 2017 the applicant left Russia for Lebanon.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 13.\u00a0\u00a0The 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 leading judgment in the case of L.M. and Others v. Russia (nos.\u00a040081\/14 and 2 others, \u00a7\u00a7 61\u201375, 15 October 2015), and in the follow\u2011up case of S.K. v. Russia (no. 52722\/15, \u00a7\u00a7 23-41, 14 February 2017).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLES2 AND 3 OF THE CONVENTION<\/p>\n 14.\u00a0\u00a0The applicant complained that his expulsion to Syria, if carried out, would be in breach of his right to life and the prohibition on torture, inhuman and degrading treatment provided for in Articles 2 and 3 of the Convention. The relevant provisions read as follows:<\/p>\n Article 2<\/p>\n \u201c1. Everyone\u2019s right to life shall be protected by law…\u201d<\/p>\n Article 3<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n 15.\u00a0\u00a030. The Court notes from the submissions of the representatives that the applicant left Russia for safe third countries and settled there. Thus, it considers that he no longer faces expulsion to Syria and a risk of death and\/or ill-treatment there.<\/p>\n 16.\u00a0\u00a0The Court considers that it is no longer justified to continue the examination of the above application as regards their complaints of a risk of death and\/or ill\u2011treatment under Articles 2 and 3 of the Convention (see Rakhmonov v. Russia (dec.), no.11673\/15, 31 May 2016) and the closely linked complaints under Article 13 of the Convention. The Court is further 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 application (Article 37 \u00a7 1, in fine). Accordingly, the Court decides to strike the application out of its list of cases in so far as it concerns complaints of death and\/or ill-treatment in the event of the applicants\u2019 expulsion to Syria from Russia and the alleged absence of effective domestic remedies in respect of these claims.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION<\/p>\n 17.\u00a0\u00a0The applicant complained that his detention pending expulsion proceedings had been arbitrary and prolonged, and that he had not had access to effective judicial review of his detention. He relied on Article\u00a05 \u00a7\u00a7\u00a01 (f) and 4 of the Convention, which in the relevant part read as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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…<\/p>\n …<\/p>\n (f)\u00a0\u00a0the lawful arrest or detention of … a person against whom action is being taken with a view to deportation or extradition…<\/p>\n …<\/p>\n 4.\u00a0\u00a0Everyone 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.\u201d<\/p>\n 18.\u00a0\u00a0The Court notes that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 19.\u00a0\u00a0The Government submitted that the detention pending expulsion had been lawful, as it had been ordered by a court, and that even though no time-limit for the applicant\u2019s detention had been set, the maximum duration of an administrative penalty was two years. The applicant could seek supervisory review of the expulsion and ensuing detention orders in the event of a significant change in their circumstances.<\/p>\n 20.\u00a0\u00a0The applicant disputed that argument.<\/p>\n 21.\u00a0\u00a0The court reiterates that any deprivation of liberty under the second limb of Article 5 \u00a7 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 \u00a7 1 (f) of the Convention (see L.M. and Others v.\u00a0Russia, cited above, \u00a7 146). To avoid being branded as arbitrary, detention under Article 5 \u00a7 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, the place and conditions of detention must be appropriate, and the length of the detention must not exceed that reasonably required for the purpose pursued (ibid.).<\/p>\n 22.\u00a0\u00a0Turning to the present case, the Court notes that the applicant\u2019s complaints concern the period of approximately seven months, during which the applicant was detained pending expulsion between 8 June 2016 and 20 January 2017. It further notes that from 22 June 2016, the date of indication of an interim measure by the Court, and until the date of the applicant\u2019s voluntary departure from Russia the possibility of enforcement of his expulsion was reviewed on a monthly basis by the domestic courts.<\/p>\n 23.\u00a0\u00a0The Court considers that there is no evidence indicating any arbitrariness in respect of the applicant\u2019s detention or, more particularly, bad faith, deception or unjustified delays in respect of the authorities\u2019 conduct (see, conversely, Bozano v. France, 18 December 1986, \u00a7 60, Series A no.\u00a0111, and \u010conka v. Belgium, no. 51564\/99, \u00a7 41, ECHR 2002\u2011I).<\/p>\n 24.\u00a0\u00a0Lastly, the Court notes that the applicant\u2019s 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 and monthly review of the possibility of enforcement of his expulsion by the domestic courts together with the relatively short period of detention, the applicant\u2019s individual situation was devoid of the deficiencies alleged.<\/p>\n 25.\u00a0\u00a0Accordingly, having regard to all the material in its possession and the conclusions above, the Court finds that there had been no violation of the applicant\u2019s rights under Article\u00a05\u00a0\u00a7\u00a7\u00a0 1 (f) and 4 of the Convention.<\/p>\n III.\u00a0\u00a0APPLICATION OF AN INTERIM MEASURE UNDER RULE 39 OF THE RULES OF COURT<\/p>\n 26.\u00a0\u00a0On 22 June 2016 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Syria for the duration of the proceedings before the Court.<\/p>\n 27.\u00a0\u00a0In this connection, the Court reiterates that, in accordance with Article 28 \u00a7 2 of the Convention, the present judgment is final.<\/p>\n 28.\u00a0\u00a0Accordingly, the Court considers that the measure indicated to the Government under Rule 39 of the Rules of Court comes to an end.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Decides to strike the application out of its list of cases 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 Syria from Russia and the alleged absence of effective domestic remedies in respect of these claims under Article 13 of the Convention;<\/p>\n 2.\u00a0\u00a0Declaresthe complaints under Article 5 of the Conventionadmissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been no violation of Article 5 \u00a7\u00a7 1(f) and 4 of the Convention.<\/p>\n Done in English, and notified in writing on 27 February 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/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 Luis L\u00f3pez Guerra
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Fato\u015fArac\u0131, Deputy Section Registrar,<\/p>\n
\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