THIRD SECTION
DECISION
Application no. 8552/10
Gocha GALOGRE
against Russia
The European Court of Human Rights (Third Section), sitting on 14 November 2017 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 25 August 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Georgian Government,
Having deliberated, decides as follows:
PROCEDURE
1. The case originated in an application (no. 8552/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Gocha Galogre (“the applicant”), who was born in 1965. He was represented before the Court by Mr E. Mezak, a human-rights defender from Syktyvkar.
2. 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.
3. The Georgian Government were represented by Mr L. Meskhoradze, the Government Agent of Georgia to the European Court of Human Rights. By a letter of 29 March 2013 the Georgian Government reserved the right to present their comments to the Court at a later stage of the proceedings but failed to do so.
THE FACTS
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant arrived in Russia from Georgia in 1999. In 2001 he lost his Georgian passport and lived since without any identity documents.
6. On 27 March 2009 the Ust-Kulomskiy District Court of the Komi Republic convicted the applicant of a breach of the immigration regulations. The court ordered his removal to Georgia and his detention pending removal.
A. Conditions of detention
7. The applicant was placed in the “special detention centre” of Syktyvkar pending removal where he was detained from 27 March to 27 July 2009. In particular, from 12 April to 27 July 2009 he was detained in cell no. 6 which measured 12.2 square metres (sq.m). He shared it with two other inmates. According to the applicant, he could hear sounds from the hall; the menu was not diversified enough; the daily walks were short; the cell had no forced ventilation and was not equipped with an emergency button; during the periods of midnight twilight the cell was excessively lit during the night.
B. Removal proceedings
8. On 31 March 2009 the police department in charge of the removals asked the Russian Ministry of Foreign Affairs to issue a “nationality certificate” for the applicant as he had lost his Georgian passport. On 6 April 2009 the same police department sought assistance by the head of the special detention centre of Syktyvkar and other authorities in the preparation of documents necessary for obtaining the “nationality certificate” for the applicant. The pack of documents included: an application signed by the applicant, a filled-in questionnaire, a copy of the applicant’s military service certificate and two photographs.
9. Having received the above documents from the special detention centre the police department in charge of the removals forwarded them to the Embassy of Switzerland in the Russian Federation, Georgian Interests Section, on 24 April 2009.
10. On 27 July 2009 the applicant was removed from Russia.
С. Judicial proceedings
11. The applicant complained before the Syktyvkar Town Court, under Chapter 25 of the Civil Code, that his detention had been unlawful because the administrative removal proceedings had not been conducted with due diligence. He further complained that the conditions of his detention had been inhuman.
12. On 23 December 2009 the Syktyvkar Town Court declared the conditions of the applicant’s detention from 27 March to 11 April 2009 degrading and awarded compensation. As to the detention conditions in cell no. 6, the court found that they had been satisfactory. It further found that the applicant’s detention had been lawful and that the administrative removal proceedings had been conducted diligently.
13. On 25 February 2010 the Supreme Court of the Komi Republic upheld the judgment on appeal.
COMPLAINTS
14. The applicant complained under Article 3 of the Convention about the conditions of his detention in the special detention centre in Syktyvkar from 12 April to 27 July 2009. He further complained under Article 5 § 1 (f) that the authorities had not acted with due diligence during the removal proceedings from 27 March to 24 April 2009.
THE LAW
I. PRELIMINARY CONSIDERATIONS
15. At the outset the Court notes that the applicant sent the first letter to the Court on 8 December 2009 expressing his intention to lodge an application to the Court raising complaints under Articles 5 §§ 1, 4, 5, 6 and 13 of the Convention. The Court instructed the applicant to return the application form by 8 April 2010. It took the applicant almost a year to fill in the form which he sent to the Court on 25 August 2010.
16. In accordance with the Court’s established practice before the amendment of Rule 47 of the Rules of Court in 2014, the date of the introduction of an application was the date of the first letter indicating an intention to lodge an application and setting out, even summarily, its object. However, where a substantial interval followed before an applicant submitted further information about his proposed application or before he returned the application form, the Court could examine the particular circumstances of the case to determine what date should be regarded as the date of introduction with a view to calculating the running of the six month period imposed by Article 35 of the Convention (see Barankevich v. Russia (dec.), no. 10519/03, 20 October 2005).
17. In the present case, taking into account a substantial delay in returning the application form and the absence of any particular circumstances to justify such a delay, the Court concludes that 25 August 2010, the date when the application form was sent, should be regarded as the introduction date.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
18. The applicant complained about the detention conditions under Article 3 of the Convention which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
19. The Government argued that the applicant was no longer a victim within the meaning of Article 34 of the Convention in respect of his detention as the national authorities have acknowledged the breach of the Convention and afforded redress for it. The applicant maintained his complaint.
20. Having regard to the fact that the applicant’s detention in the special detention centre had ended more than six months before his application was lodged with the Court, the Court must first determine whether the applicant complied with the six-month requirement imposed by Article 35 of the Convention.
21. By the time the application was lodged the Court on several occasions had expressed itself about the absence of effective remedies against inadequate conditions of detention (see, in particular, Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006; and Benediktov v. Russia, no. 106/02, § 29, 10 May 2007). The Court’s case-law on the absence of an effective remedy for complaints concerning inadequate conditions of detention being sufficiently established, the applicant and his lawyer had at their disposal a period of six months following the applicant’s departure from the detention centre to submit an application to the Court. However, they failed to do so within that time period.
22. The applicant’s complaint to the domestic courts under then in force Chapter 25 of the Russian Code of Civil Procedure could not be considered an effective remedy in respect of the alleged violation (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 107-12, 10 January 2012). Even though the domestic courts in the apptlicant’s case acknowledged the inadequacy of the conditions of his detention and awarded a compensation, those acknowledgement and compensation related to a period of detention which was not subject of the applicant’s complaint to the Court. Therefore, the civil judgments in the present case cannot be viewed as an extraordinary remedy which could give any redress to the alleged violations of the applicant’s rights (see, a contrario, Sapeyan v. Armenia, no. 35738/03, § 23, 13 January 2009).
23. With a view to the above the Court finds that there is no need to examine the Government’s argument concerning the applicant’s victim status.
24. It follows that the complaint under Article 3 of the Convention is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) OF THE CONVENTION
25. The applicant complained about unlawfulness of his detention pending removal as the authorities had not acted with due diligence. Article 5, in so far as relevant, reads as follows:
Article 5
“1. Everyone 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:
...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
26. The Government argued that the complaint was manifestly ill‑founded. In particular, they sustained that the absence of any official document to confirm the applicant’s nationality interfered with the immediate enforcement of the removal order as the authorities had to obtain a “nationality certificate”. The Government submitted documents related to the removal proceedings. The applicant maintained his complaint.
27. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example, to prevent the individual from committing an offence or fleeing. It is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law (see Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996‑V; Slivenko v. Latvia [GC], no. 48321/99, § 146, ECHR 2003‑X; Sadaykov v. Bulgaria, no. 75157/01, § 21, 22 May 2008; and Raza v. Bulgaria, no. 31465/08, § 72, 11 February 2010). Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for 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 that provision (see, among other authorities, Chahal, cited above, § 113; A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 164, 19 February 2009; Mikolenko v. Estonia, no. 10664/05, § 63, 8 October 2009; and Raza, cited above, § 72).
28. In the present case the Court notes that the applicant lost his Georgian passport in 2001 and till the start of the removal proceedings in 2009 made no effort to obtain any identity documents. Therefore, the removal proceedings had to start with obtaining such documents for him which in its turn requested preparation of an application pack consisting of an application signed by the applicant, a filled-in questionnaire, a copy of the applicant’s military service certificate and two photographs. The application pack was then to be sent to the Embassy of Switzerland, Georgian Interests Section.
29. The Court notes that the proceedings with a view to obtain the identity documents started several days after the removal order had been issued. It took the authorities no more than 28 days to prepare the application pack (see, a contrario, Amie and Others v. Bulgaria, no. 58149/08, §§ 77-79, 12 February 2013). There were no considerable periods of delay (see, a contrario, Mikolenko, cited above, § 64). As soon as ready the application pack was sent to the Embassy of Switzerland, Georgian Interests Section. Having regard to the materials in its possession the Court cannot conclude that the authorities failed to conduct the removal proceedings with due diligence.
30. It follows that the complaint under Article 5 § 1 (f) is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 December 2017.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy