Communicated on 30 March 2016
THIRD SECTION
Application no 10796/16
H.D.
against Russia
lodged on 24 February 2016
STATEMENT OF FACTS
The applicant is a Syrian national born in Aleppo. He arrived in Russia illegally in September 2013 in search of work. Since September 2013 he was illegally residing in Russia, using his brother’s passport.
In July 2015 the applicant was convicted of illegal residence in Russia and sentenced to administrative removal from Russia. He was placed in custody where he remains to date.
In December 2015 the migration authorities rejected the applicant’s application for temporary asylum, finding that the applicant had entered Russia illegally from Turkey, where he had had a possibility to apply for asylum but had not done so. Moreover, the only reason for his application for temporary asylum was the ongoing military conflict and the ensuing humanitarian crisis in Syria. His situation was not any worse than the situation of the general Syrian population. The applicant would be removed to Damascus which was controlled by the Government forces and was therefore safe. There were no grounds for temporary asylum.
In February 2016 the applicant’s representative lodged an appeal against the administrative removal order. He asked for an extension of the time-limit for appeal, claiming that it had been missed because the applicant had not been represented at the time and had insufficient command of Russian to understand the procedure. In March 2016 the appeal court rejected the request for an extension of the time-limit. The administrative removal order is enforceable.
In February 2016 the applicant lodged a new application for asylum. The proceedings are pending.
In March 2016 the applicant challenged the decision refusing temporary asylum before the higher-level migration authority. Relying on the UN reports, he claimed that in case of his deportation to Syria he would run a high risk of death due the generalised violence prevailing in all Syrian regions because of the ongoing military conflict there.
COMPLAINTS
1. The applicant complains under Articles 2, 3 and Article 4 of Protocol No. 4 that in case of his removal to Syria he will face a risk of death and/or torture there and that the domestic authorities did not examine his claims about the existence of such risk with the requisite thoroughness.
2. The applicant complains under Article 5 §§ 1 and 4 that his detention pending administrative removal has been unlawful and arbitrary and that there is no effective procedure by which he can challenge his continued detention.
3. The applicant complains that his representative is not allowed to visit him in detention and has had difficulties passing him documents, including the power of authority and the application form, for signature.
QUESTIONS
1. Will there be a violation of Article 2 or 3 of the Convention on account of the applicant’s removal from Russia to Syria (see L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, 15 October 2015)? Does the current situation of generalised violence in Syria, per se, make any removal to this country incompatible with Articles 2 and 3 of the Convention? Before deciding on his administrative removal, did the authorities consider the applicant’s claim that he would be exposed to a risk of death and torture if returned to Syria?
2. Did or does the applicant have effective remedies for his above complaint, as required under Article 13 of the Convention? In particular:
- In various domestic proceedings did the applicant adduce evidence capable of proving that there were substantial grounds for a risk of death and/or ill-treatment in Syria? In their turn, did the Russian authorities dispel the doubts that could exist about this risk (see Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008)? Did the applicant obtain an “independent and rigorous scrutiny” of this claim by the Russian authorities, including courts?
- Did the Code of Administrative Offence and/or the established judicial practice concerning it make provision for (i) examination of arguments relating to a risk of ill-treatment in the destination State and (ii) for blocking (enforcement of) the penalty of administrative removal because of such a risk, especially where this penalty was a mandatory one?
- Did Russian law require an automatic suspension of administrative removal (i) during examination of an application for temporary asylum, and (ii) during judicial review of the refusal of temporary asylum? Did the statutory provisions on temporary asylum and the settled case-law set clear and foreseeable criteria for granting temporary asylum? Was a risk of death and/or ill-treatment among the relevant criteria and grounds?
The respondent Government is invited to refer to specific provisions of domestic law and to provide relevant examples of the case-law of domestic courts in this respect.
3. Has there been a violation of Article 5 § 1 of the Convention? In particular, what is the legal basis for the detention? Given that the decision of 3 June 2015 did not refer to the domestic provision on which the detention was based and did not set a time-limit for the detention, was the applicant afforded adequate protection from arbitrariness (see Azimov v. Russia, no. 67474/11, § 171, 18 April 2013; and, mutatis mutandis, Nakhmanovich v. Russia, no. 55669/00, § 71, 2 March 2006)?
4. Have the absence of a periodic review of the detention matter and of a possibility to take proceedings with an application for release resulted in a violation of Article 5 § 4 of the Convention (see Azimov, cited above, §§ 150-155, and Kim v. Russia, no. 44260/13, §§ 39-45, 17 July 2014)?
5. Taking into account the representative’s inability to visit the applicant in the detention facility, has there been any hindrance by the State with the effective exercise of the applicant’s right of application, guaranteed by Article 34 of the Convention?
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