Communicated on 17 September 2019
THIRD SECTION
Application no. 18570/19
F. and Z. against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTSThe circumstances of the cases
The applicants’ personal details and the information concerning their applications, the particulars of the domestic proceedings and other relevant information are set out in the Appendix.
The facts of the case, as submitted by the applicants, may be summarised as follows.
Between 1991 and 1995 the applicants arrived in the Amur Region in the far eastern part of Russia on employment-based visas for unskilled workers, pursuant to the agreement between Russian and the Democratic People’s Republic of Korea (“DPRK” or “North Korea”). They started working for a company named “Tynda-Les” which, at the time, was doing logging and timber collection.
The applicants are not in possession of valid personal identity documents (see Appendix for details).
According to the applicants, they were not paid for their work and escaped from the site of their work after a few years to other regions of Russia.Temporary asylum proceedings and the revocation of the temporary asylum status
In 2016 the Russian authorities granted temporary asylum status to F. and Z (application no. 18570/19) and to S.L. and C.C. (application no. 19115/19), having established
in the case of F.:
“... According to the information from the Ministry of Foreign Affairs of Russia, [North Korean nationals who left North Korea for economic reasons and refused to return to North Korea after the expiry of their leave permit] are often subject to expulsion to the rural areas or are assigned to perform forced labour or face the criminal punishment of up to two years of correctional works ...”
in the case of Z.:
“... According to the information of the UN General Assembly, nationals [of North Korea] who did not [of their own will] return to the country, may be executed upon their return [there] ...”
Later the FMS Russia revoked their decision to grant the temporary asylum in respect of F., Z., S.L. and C.C (see Appendix for details).
In respect of F., Z., S.L. and C.C the FMS Russia established in their decision to revoke their status of temporary asylum:
“...Considering the information provided by the Ministry of Foreign Affairs, there are grounds to believe that [the applicant] will be criminally prosecuted in case of his return to North Korea.
Having examined the decisions [of local FMS and MVD] to grant temporary asylum status to [the applicant] and to extend that status and the information concerning the situation in North Korea, [it is possible] to conclude that [the applicant] cannot be returned safely to North Korea after his prolonged absence as he will likely be subjected to inhuman treatment by the national authorities.
...The regional FMS granted temporary asylum to a person whose identity was not established, in breach of the Administrative Practice Directive of the FMS...In this regard, the decisions to grant temporary asylum to [the applicant] and to extend such status in his respect should be annulled ...”Relevant international materials
According to the Report of Tomás Ojea Quintana, the United Nations (“UN”) Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, submitted by him on 18 March 2019 to the 40th session of the UN Human Rights Council (A/HRC/40/66)[1]:
“... E. Situation of people repatriated
34. ... [The Special Rapporteur] continues to receive allegations which reveal the systematic nature of serious human rights violations committed against persons repatriated to the Democratic People’s Republic of Korea, including torture and sexual violence. The systematic nature of the violations stem from a criminal code which continues to severely limit the freedom to leave the country - a right which is enshrined in international human rights law [FN 42] — together with a penal system which denies due process and fair trial guarantees. Human rights violations occur systematically during interrogation, which involves torture, cruel or degrading treatment, during the invasive strip searches of suspected escapees, and through the violence, detainees are subjected to as part of disciplinary procedures. Furthermore, serious human rights violations derive from detention conditions in cramped cells with inadequate water; sanitation and hygiene; the denial of access to recreation; forced labour in dangerous conditions; and grossly inadequate food and healthcare ...
FN 42 ... Article 63 [of the Criminal Law of the Democratic People’s Republic of Korea] states: “A citizen who defects to a foreign country in betrayal of the country, or commits such a traitorous act as betraying secret shall be committed to more than five years of reform through labour. In case of an extremely grave crime, he or she shall be given the penalty of reform through labour for an indefinite period or the death penalty and the penalty of confiscation of property.”
According to the Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, delivered by the UN Secretary General to the General Assembly on 18 September 2017 (A/72/394) and covering the period between October 2016 and 31 August 2017[2]:
“... Some of the input for the present report has been provided through interviews with people who left the Democratic People’s Republic of Korea in late 2016 and in 2017. Although the Government has accused its nationals abroad of giving false testimonies, the information received has been cross-checked with other independent sources, making it difficult to invalidate. The Special Rapporteur would have preferred to receive and analyse those testimonies in the Democratic People’s Republic of Korea, including the views of the authorities. However, the Government rejected his requests to carry out a country visit ...
31. ... [a footnote] The 2014 report by the Commission of Inquiry and subsequent United Nations monitoring established that returnees to the Democratic People’s Republic of Korea are systematically subjected to torture and ill-treatment, regardless of the reason for which they leave the country...
44. The situation of human rights in the Democratic People’s Republic of Korea is complex and changing in some respects. Patterns of grave violations continue to be observed, despite limitations on access to independent human rights monitors. The situation of detainees is of particular concern, as is the condition of citizens abroad who are forcibly repatriated ...”
According to the Resolution 37/28, named “Situation of human rights in Democratic People’s Republic of Korea” (A/HRC/37/L.29)[3], adopted on 23 March 2018 by the UN Human Rights Council:
“... The Human Rights Council ...
1. Condemns in the strongest terms the long-standing and ongoing systematic, widespread and gross human rights violations and other human rights abuses committed in and by the Democratic People’s Republic of Korea, and expresses its grave concern at the detailed findings made by the commission of inquiry in its report, including:
...
(e) Violations of the right to life and acts of extermination, murder, enslavement, torture, imprisonment, rape and other grave forms of sexual violence and persecution on political, religious and gender grounds in political prison camps and ordinary prisons, and the widespread practice of collective punishment with harsh sentences imposed on innocent individuals;
f) Systematic abduction, denial of repatriation and subsequent enforced disappearance of persons, including those from other countries, on a large scale and as a matter of State policy...
6. Reiterates its deep concern at the commission’s [of inquiry on human rights in the Democratic People’s Republic of Korea] findings concerning the situation of refugees and asylum seekers returned to the Democratic People’s Republic of Korea, and other citizens of the Democratic People’s Republic of Korea who have been repatriated from abroad and made subject to sanctions, including internment, torture, cruel, inhumane and degrading treatment, sexual violence, enforced disappearance or the death penalty...”.The application of the interim measures by the Court
On various dates the Court decided, at the applicants’ requests, to indicate to the Russian Government, under Rule 39 of the Rules of Court, that the applicants should not be expelled to North Korea for the duration of the proceedings before the Court. The applicants’ cases were also granted priority (under Rule 41) and confidentiality (under Rule 33), and the applicants were granted anonymity (under Rule 47 § 4).
COMPLAINTS
The applicants complain under Article 2 and 3 of the Convention about the risk of death, torture and/or ill-treatment in case of their forced return to North Korea. They also complain, under Article 13 of the Convention, about the lack of effective domestic remedies in respect of their complaints under Articles 2 and 3.
The applicant M.L. (application no. 25079/19) also complains that his detention pending expulsion is incompatible with the requirements of Article 5 § 1 (f) of the Convention in terms of the foreseeability of the length of such detention and that he does not have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention.
COMMON QUESTIONS
1. Would the applicants face a real risk of being subjected to death and/or torture or ill-treatment in breach of Articles 2 and 3 of the Convention in the event of their removal to North Korea?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 2 and 3, as required by Article 13 of the Convention?
CASE SPECIFIC QUESTIONS
1. Having regard to the Court’s conclusion in the case of Azimov v. Russia (Azimov v. Russia, no. 67474/11, 18 April 2013), was the M.L.’s (application no. 25079/19) detention compatible with the requirements of Article 5 § 1 (f) of the Convention in terms of the foreseeability of the length of such detention?
2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
APPENDIX (anonymity has been granted)
No..
Application no./
Lodged on/
Applicant/
Date of Birth/
Residence
Nationality/
Represented by
by
Detention
ID-verification procedures
Removal Proceedings
Temporary asylum/Refugee status proceedings
Other relevant information provided by the applicants by the applicants
1
18570/19
05/04/2019
F. and Z. v. Russia
26/02/1956
02/07/1957
Mezhdurechensk
Kemerovo
North Korean
Daria Vladimirovna TRENINA
Not detained
ID-verification procedures:
November 2016 - the police report issued that it was not possible to verify Z.’s identity;
December 2015 - the police report issued that it was not possible to verify F.’s;
21 November & 1 December 2019 Z. and F. re-applied for ID procedure;
20 & 28 February 2019 - police reports that it was not possible to verify their identity;
Temporary asylum proceedings in respect of F.:
October 2015 - the request with the FMS Kemerovo lodged; was interviewed and sent to the police to verify his identity;
11 January 2016 the temporary asylum granted; prolonged by annual decisions until 8 January 2019;
Refugee status proceedings:
11 January 2016 - request denied;
Temporary asylum proceedings in respect of Z.:
September -October 2016 - the request for temporary asylum lodged with the FMS Kemerovo;
9 December 2016 interviewed in respect of his request;
7 March 2017 - the temporary asylum granted; prolonged until 5 March 2019;
12 October 2018 the FMS quashed the decision to grant temporary asylum in respect of both applicants;
5 December 2019 the Central District Court of Kemerovo granted the applicants’ requests to suspend revocation of the applicants’ temporary asylum for the duration of the proceedings before the court;
14 January 2019 the Central District Court of Kemerovo agreed with the assessment of the risks by the FMS but confirmed the decision of the FMS of 12 October 2019 in respect of Z.;
28 January 2019he Central District Court of Kemerovo agreed with the assessment of the risks by the FMS but confirmed the decision of the FMS of 12 October 2019 in respect of FAN;
2 March 2019 F. appealed to the Kemerovo Regional Court but the appeal was returned to him as time-barred. On 12 March 2019 F. lodged another appeal
25 March 2019 the Kemerovo Regional Court refused to reopen the F.’s case; on 3 April 2019 F. appealed, the proceedings are pending.
24 April 2019 the Kemerovo Regional Court confirmed the judgment of 14 January 2019 in respect of Z.
Passport of F. seized by his employer upon arrival and then by migration officers in 2009 during an identity check.
Passport of Z. stayed with the North Korean authorities.
2
19115/19
09/04/2019
S.L. and C.C. v. Russia
02/07/1954
15/01/1955
Abakan
Kolpino
Eleonora DAVIDYAN
Not detained
Temporary asylum proceedings in respect of S.L.:
15 June 2016 - granted temporary asylum, prolonged annually, last time until 7 June 2019;
4 December 2018 - decision to revoke temporary asylum as the identity of the applicant was not confirmed.
Temporary asylum proceedings in respect of C.C.:
12 July 2016 granted temporary asylum, prolonged annually, last time until 7 June 2019;
3 December 2018 - decision to revoke temporary asylum as the identity of the applicant was not confirmed.
6 March 2019 the Abakan City Court refused their appeal against revocation, as "it was not established that they are the nationals of North Korea and that they would deported there."
appeal to the Supreme Court of Khakassiya pending.
Passports of both applicants seized by their employer upon their arrival to Russia and never returned to them;
Work permit of C.C. was seized by the migration officers in 1998; S.L. lost his work permit
3
25079/19
13/05/2019
M.L. v. Russia
15/08/1955
Novosibirsk
North Korean
Kirill ZHARINOV
Detention pending expulsion
26 April 2019 - currently
Expulsion proceedings
26 April 2019 the Oktyabrskiy District Court of the Novosibirsk Region found the applicant guilty of violation of migration regulation, ordered the applicant’s expulsion and his detention pending expulsion;
14 May 2019 the Novosibirsk Regional Court refused to open the proceedings in the applicant’s case as time-barred.
27 May 2019 - appeal of 14 May 2019 rejected by the Novosibirsk Regional Court (unsubstantiated allegations & authenticity of the ECHR’s letter not confirmed)
11 June 2019 - hearing on suspension of the expulsion.
Refugee status proceedings
10 May 2019 and 13 May 2019 the applicant requested a refugee status in Russia;
23 May 2019 the FMS Novosibirsk replied that he could only make his request once his identity is verified.
Passport of M.L. seized by his employer upon arrival and never returned to him.
In December 2003 issued temporary “ID card for foreigner” by the Russian Ministry of Internal Affairs in the Novosibirsk Region. The document seized by his new employer and never returned (a copy is provided by the applicant to the Court).
4
27909/19
27/05/2019
G.C. and others v. Russia
01/05/1953
21/07/1967
21/03/1975
Kirill ZHARINOV
Ulan-Ude
The detention of all three applicants ordered since 29 March 2019 by the Sovetskiy District Court of Ulan-Ude on charges of attempted illegal border crossing, detention prolonged until 29 July 2019.
ID identification procedure
In respect of G.C.: Witnesses were questioned, official enquires made. On 20 December 2017 the police report issued that it was not possible to verify G.C.’s identity.
29 March 2019 – the identities of all three applicants established by the investigator on the basis of the report from the Federal Security Service of Russia.
Refugee/Temporary asylum proceedings
1) in respect of G.C.:
11 October 2017 applied for temporary asylum status; request not accepted as no ID provided, advised to apply for ID-verification procedure.
2) in respect of J.S.:
In December 2018 applied for refugee status, the same as in G.S.’s case above; In March 2019, his request was denied (informed about it orally, a copy of the decision not received).
3) in respect of P.G.:
4 July 2018 applied for refugee status, same as above but was not informed about the outcome.
Passport of G.C., J.S., and P.G. were seized by their employer, respectively, in 1995, 2013 and 2016.
The applicants’ attempt to leave Russia
In March 2019 the applicants decided to cross on foot from Russia into Mongolia where they would apply for resettlement at the embassy of South Korea.
On 24 March 2019 they were arrested by the Russian border patrol officers.
On 29 March 2019 the applicants were charged with attempted illegal border crossing. The North Korean embassy was informed of their arrest and their identities were established by an investigator in the case.
The intervention by the North Korean authorities
On unspecified date in April 2019 a group of North Korean officials arrived to Ulan-Ude and brought the applicants’ identification documents and discussed the date of the applicants’ expected release into their custody, pursuant to re‑admission procedure. They were not allowed to visit the applicants in detention.
[1] Available at the website of the UN High Commissioner For Human Rights (Latest Reports): https://www.ohchr.org/EN/HRBodies/SP/CountriesMandates/KP/Pages/SRDPRKorea.aspx
[2] Ibid (Documents): http://ap.ohchr.org/documents/dpage_e.aspx?m=142
[3] Ibid (HRC sessions/37th session of the Human Rights Council (26 February to 23 March 2018) https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session37/Pages/ResDecStat.aspx
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