CASE OF K.K. v. RUSSIA

THIRD SECTION

CASE OF K.K. v. RUSSIA

(Application no. 41701/18)

JUDGMENT

STRASBOURG

15 May 2025

This judgment is final but it may be subject to editorial revision.

In the case of K.K. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Diana Kovatcheva, President,
 Úna Ní Raifeartaigh,
 Mateja Đurović, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 24 April 2025,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 September 2018.

2.  The applicant was represented by Mr K. Zharinov, a lawyer practising in Moscow.

3.  The Russian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of the unlawful detention (deprivation of liberty) pending removal from Russia. He also raised other complaints under the provisions of the Convention.

THE LAW

6.  The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present application (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023).

7.  The applicant complained of the unlawful detention (deprivation of liberty) pending removal from Russia. He relied on Article 5 § 1 of the Convention.

8.  The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. One of the exceptions, contained in sub-paragraph (f) of Article 5 § 1, permits the State to control the liberty of aliens in an immigration context. Article 5 § 1 (f) does not require the detention to be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. However, any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified only as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with “due diligence”, the detention will cease to be permissible under Article 5 § 1 (f) (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 88-90, 15 December 2016).

9.  At the same time, the Court emphasises that the unacknowledged detention of an individual is a complete negation of Article 5 guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 233, ECHR 2012)

10.  The Court observes that the applicant’s detention between 4 and 6 September 2018 had not been recorded in accordance with applicable national procedures and had been used as a vehicle for his removal from Russia. Having regard to all the material submitted by the parties and its case‑law on the subject, the Court considers that the present complaint is admissible within the meaning of Articles 34 and 35 of the Convention and that the applicant’s detention between 4 and 6 September 2018 had been unrecorded and unlawful.

11.  These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.

12.  The applicant complained that his removal to Kyrgyzstan despite the interim measures indicated by the Court under Rule 39 of the Rules of Court has breached Article 34 of the Convention.

13.  The Court notes that on 4 September 2018 it was indicated to the Government that the applicant should not be removed from Russia for the duration of the proceedings before the Court. Despite indication of that measure the applicant was forcefully removed to the destination country by the Russian authorities.

14.  Having examined all the material submitted to it and the case-law on the subject, the Court considers that the Russian authorities failed to comply with the interim measure indicated to them under Rule 39 of the Rules of Court and, therefore, interfered with the applicant’s right of the individual petition under Article 34 of the Convention.

15.  Accordingly, there has been a violation of the applicant’s right under Article 34 of the Convention in the present case.

16.  The applicant also raised other complaints under Articles 3 and 13 of the Convention. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto (see Khasanov and Rakhmanov v. Russia [GC], nos. 28492/15 and 49975/15, 29 April 2022.

17.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

18.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Tewelde and Others v. Russia [Committee], no. 48352/19, 7 December 2021), the Court considers it reasonable to award the sum indicated in the appended table and dismisses the remainder of the applicant’s claim for just satisfaction.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 15 May 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Diana Kovatcheva
 Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 5 § 1 of the Convention

(unlawful detention (deprivation of liberty))

[1] Plus any tax that may be chargeable to the applicant.