Communicated on 31 March 2016
THIRD SECTION
Application no. 53980/15
H.R.
against Russia
lodged on 30 October 2015
STATEMENT OF FACTS
The applicant, a Syrian national and an ethnic Kurd, was born in Aleppo, Syria. On 12 October 2011 he went to Russia with a valid passport and a tourist visa expiring on 11 November 2011 and started working in the Moscow Region. In February 2015 he went to Makhachkala, Republic of Dagestan, in search of a new job.
On 26 February 2015 he was apprehended and placed in a detention centre for foreigners in Makhachkala, where he has remained since then.
COMPLAINTS
1. The applicant complains under Articles 2 and 3 of the Convention that his expulsion to Syria would represent a threat to his life and subject him to a real risk of ill-treatment.
2. The applicant complains under Article 5 §§ 1 (f) and 4 of the Convention that his detention pending expulsion is unlawful, owing to the absence of any time-limits and judicial review in respect of that detention.
3. The applicant also complains under Article 6 §§ 1 and 3 (c) of the Convention that he was not represented by a lawyer at the expulsion hearing on 26 February 2015.
4. The applicant alleges under Article 13 of the Convention, that he had no access to an effective domestic remedy in regard of his complaint, that his arguments were not thoroughly examined at the domestic level and that the temporary asylum procedure had no automatic suspensive effect vis‑à‑vis the expulsion order.
QUESTIONS TO THE PARTIES
1. In the light of the applicant’s claims, the documents which have been submitted, and the Court’s case-law, would the applicant risk being subjected to treatment in breach of Articles 2 and/or 3 of the Convention if his expulsion from Russia to Syria were enforced (see L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, 15 October 2015)?
2. Did or does the applicant have effective remedies in respect of the above complaint, as required under Article 13 of the Convention? If so, has the applicant complied with exhaustion of domestic remedies rule in relation to the above complaint?
(a) Noting that the expulsion order arose from the prosecution of the applicant for an administrative offence, did/does any specific provision of the CAO or other applicable legislation provide for a thorough examination of an issue of a risk of death or ill‑treatment, in line with the Court’s relevant standards and principles, and for granting adequate redress on account of substantial grounds confirming such a risk?
For instance, as to the temporary asylum procedure, was the assessment of the applicant’s situation based on sufficiently clear and foreseeable criteria that are wide enough to deal properly with the substance on an issue under Article 2 or 3 of the Convention? Did/does any specific provision of the Refugees Act or other legislation provide that a pending application for temporary asylum and a pending judicial review in respect of a refusal to grant such asylum each have an “automatic suspensive effect” vis-à-vis a final expulsion order (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 31, ECHR 2013; Tukhtamurodov v. Russia (dec.), no. 21762/14, 20 January 2015, §§ 24-27; Khamrakulov v. Russia, no. 68894/13, § 61, 16 April 2015; and L.M. and Others, cited above, §§ 67 and 100)? Do the absence of such an effect, the narrow scope of assessment, and the temporary nature of the solution arising from a refusal to grant temporary asylum make this remedy ineffective/not appropriate to be used before lodging an application before the Court?
(b) Did the domestic authorities, including courts, properly assess the Article 3 issue? Did/does the applicant have access to a lawyer in the detention centre for foreigners in Makhachkala? How did the restrictions, if any, on the contact with the representative affect the applicant’s ability to participate effectively in the proceedings against him and his ability to plead the Article 3 issue?
3. Have the absence of a periodic review of the applicant’s detention and of a possibility to take proceedings with an application for release resulted in a violation of Article 5 §§ 1 (f) and 4 of the Convention?
4. In the light of Mikhaylova v. Russia, no. 46998/08, 19 November 2015, was Article 6 of the Convention applicable to the proceedings under the Code of Administrative Offences against the applicant? If so, was the hearing in the applicant’s case on 26 February 2015 at the Sovetskiy District Court of Makhachkala held in breach of Article 6 §§ 1 and 3 (c) of the Convention?
Full & Egal Universal Law Academy