FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46183/06
by Zakhra Makhtab KAMALFAR
against Russia
The European Court of Human Rights (First Section), sitting on 17 January 2008 as a Chamber composed of:
Christos Rozakis, President,
Anatoli Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 20 November 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the comments from the applicant’s representatives,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Zakhra Makhtab Kamalfar, is an Iranian national who was born in 1962 and lives in Canada. She was represented before the Court by Ms O. Anisimova, a partner of the Moscow office of the Orrick, Herrington and Sutcliffe LLP. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
The applicant is married and has two children, Anna, born in 1989, and David, born in 1994. She comes from a family that opposed the Islamic revolution in Iran from the outset. According to her, one of her brothers was killed in 1982 whilst the other brother fled Iran in 1995, as he was threatened for his political views, and was granted asylum in Canada.
The applicant’s husband was an active member of the Sultanat Talab, an underground organisation which opposed the current regime and sought the restoration of the monarchy in Iran. According to the applicant, the Iranian authorities persecuted her husband for his political activities. In particular, he was kept in detention between 1986 and 1988 as well as between 2001 and 2003, even though no formal charges were ever brought against him.
In 2001 the Vezarat-e Sepah Pasdaran-e Enqelab-e Islamic (the Islamic Revolutionary Guards, “the Sepah Pasdaran”) arrested the applicant in the street for the breach of the Islamic dress code, and namely because her hair was visible and her shirt had a V-neck and “showed too much of her skin”. In the applicant’s submission, she was kept in detention for three days and then condemned to 64 lashes with a whip and warned that her anti-Islamic dress would not be tolerated. After the punishment the applicant was released.
Following this incident the applicant joined her husband in his political activities and was entrusted with distributing of anti-governmental written materials.
In July 2004 the applicant and her husband took part in a demonstration commemorating the anniversary of the Kooy-e-Daneshgah (students’ protest) at the Tehran University. They were arrested by members of the Sepah Pasdaran on the spot and taken to a detention centre in separate cells. The applicant submitted that she has never seen her husband since. In January 2005 she learnt from some of her fellow-inmates that he had been executed.
The applicant remained imprisoned until March 2005. According to her, she was repeatedly beaten and raped while in custody.
On 4 April 2005, on the occasion of the Iranian religious holiday Norooz, the applicant’s next-of-kin managed to arrange for her a 48 hour leave from the detention centre. According to the applicant, in the absence of any news about her husband since his arrest and fearing for her safety, her family members insisted on her escaping to Canada, where her brother was living. The necessary arrangements were made by her sister’s acquaintance, who prepared the travel documents and fake identity papers for the applicant and her two children.
2. Events after the applicant’s departure from Iran
On 8 or 12 April 2005 the applicant and her children left Iran and on 12 April 2005 they arrived in Istanbul, Turkey. The applicant did not apply for asylum there, as she intended to go further to Canada.
On 19 April 2005 the applicant and her children left for Moscow, where they stayed for 24 hours in the transit zone, and then flew further to Frankfurt. Upon her arrival at the Frankfurt airport, the applicant was found to be in possession of forged identity documents and detained at the border. Her identity documents were seized. On 3 May 2005 the applicant and her children were sent back to Moscow and handed over to the security service of the Aeroflot Russian Airlines company.
According to the applicant, she immediately notified the Aeroflot personnel of her intention to apply for political asylum in Russia. In her submission, the Aeroflot representatives informed her that the Russian authorities did not usually grant asylum and that she would risk being placed in detention instead. They also allegedly tried to convince her to contact the Iranian authorities and arrange for her and her children’s return to Iran, which the applicant bluntly refused to do.
In the applicant’s submission, she was not aware of the procedure for applying for an asylum in Russia until 24 May 2005, when a staff member of the Moscow branch of the United Nations High Commissioner for Refugees (“the UNHCR”) contacted her. The staff member apprised the applicant of the procedure and retained a lawyer for her.
On 27 May 2005 the applicant lodged an asylum application with the Migration Department of the Main Department of the Interior of the Moscow Region (Управление по делам миграции Главного управления внутренних дел Московской области – “the Migration Department”).
By a decision of 31 May 2005 the Migration Department, referring to the relevant provisions of the Russian Law on Refugees, refused to examine the merits of the applicant’s asylum application. The decision stated, firstly, that the applicant had had an opportunity to seek asylum in Turkey and Germany before coming to Russia, but had failed to do so. Secondly, according to the decision, the applicant first arrived in Russia on 19 April 2005 and stayed until 20 April 2005, but failed to submit her asylum application within the statutory time-limit of 24 hours upon her crossing the Russian border.
The applicant challenged the administrative decision of 31 May 2005 before a court.
On 10 August 2005 the Zamoskvoretskiy District Court rejected the applicant’s complaint and upheld the decision of the Migration Department, with reference to the same provision of the Law on Refugees. The applicant was absent but her representative attended the hearing.
According to the applicant, her lawyer refused to represent her interests after the above judgment was rendered, as the UNCHR stopped paying her fees. In her submission, the court never notified her of the outcome of the proceedings and did not furnish her with a copy of the aforementioned judgment before 11 December 2006, following a request from her new representatives. On 12 December 2006 the latter lodged an appeal against the judgment of 10 August 2005 as well as a request to have the time-limit for appeal restored. The applicant’s representatives also requested the court to order the competent authorities to refrain from taking any steps with a view to her deportation. At the time when of the introduction of the present application in the Court, the proceedings were pending.
In November 2006 the applicant was granted refugee status by the UNHCR under 1951 Geneva Convention relating to the Status of Refugees, following which the UNHCR commenced negotiations with embassies of a number of countries with a view to relocating the applicant and her children.
On 21 November 2006 the authorities attempted to expel the applicant and her children in Iran. On the same date the President of the Chamber of the European Court of Human Rights to which the case had been allocated indicated to the Russian Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court that the applicant should not be expelled until further notice. The deportation was stayed following this decision.
3. Conditions in which the applicant was kept in the transit zone
On 3 May 2005, upon her arrival at the Sheremetyevo-2 international airport in Moscow, the applicant and her children were placed under surveillance at an airport hotel in a room for those awaiting deportation.
According to the applicant, the room was equipped with a bed and a table and had no sanitary facilities. The applicant and her children had no access to books, newspapers, television or any other recreational facilities.
The conditions deteriorated significantly in August 2006 when, allegedly due to renovation works at the airport hotel, the applicant and her children were transferred to the transit hall of the airport terminal, in which they remained on the date of the introduction of the present applicant in the Court. They had to live in a public area and to sleep on the concrete floor or plastic chairs. They had no access to showers or baths and had to wash themselves in the public toilets. They were not provided with toiletries or items of personal hygiene, or even drinking water and had to drink water from the toilets. The Aeroflot company provided the applicant and her children with food designed for passengers during flights. The meals were very scarce and of poor quality.
Throughout the period during which the applicant and her children were kept in Russia, they were not allowed to take outside exercise and had to remain in premises lacking the natural light and fresh air. The applicant, who suffered from a nervous breakdown, was visited once by a doctor who prescribed her some medicines. No other medical assistance was provided to the applicant or her children.
According to the applicant, on 21 November 2005, during an attempt to expel the applicant, her belongings were sent to Iran and she was proscribed from receiving any support from humanitarian organisations and private donors.
Between 3 May 2005 and 1 January 2007 the applicant and her children subsisted at the expense of the Aeroflot company. According to the applicant, on the last mentioned date the company stopped financial support, stating that the expenses should be now borne by whoever had initiated the stay of deportation.
COMPLAINTS
The applicant complained that her removal to Iran would breach Article 3 of the Convention, as she would be exposed to a real risk of torture or inhuman and degrading treatment, given that she had left the country when temporarily released from detention in which she had been placed for her political views. She also complained that the Russian authorities had refused to examine her application for a political asylum on formal grounds and, in particular, in view of her failure to meet the very tight time-limit for such an application. The applicant claimed that the conditions in which she has been kept since her arrival in Russia amount to inhuman and degrading treatment, in breach of Article 3 of the Convention.
The applicant further complained that she had been kept at the Sheremetyevo-2 airport for 20 months, which constituted a deprivation of liberty in violation of Article 5 § 1 (f) of the Convention.
The applicant relied on Article 13 of the Convention, stating that she had no effective remedies in respect of her complaint regarding the conditions in which she was kept at the Sheremetyevo-2 airport.
The applicant also complained, without referring to any Convention provision, that she had no opportunity to challenge effectively the Russian authorities’ refusal to examine the merits of her asylum application. She submitted in this respect that she had been unable to attend the court hearing, as she had never been allowed outside the transit zone. Moreover, when her lawyer had refused to represent her interests after the first instance judgment had been rendered, she had not been provided with legal assistance, had not been notified of that judgment and had been unable to appeal against it in time.
THE LAW
In a letter of 22 March 2007 the applicant’s representative informed the Court that the applicant had been granted asylum in Canada with the result that she had left Moscow and settled in Vancouver. The letter also stated that the applicant did not intend to pursue her application before the Court and requested that the Strasbourg proceedings be discontinued and the applicant be struck out of the Court’s list of cases, in accordance with Article 37 § 1 of the Convention.
The Court observes that the applicant expressly stated that she no longer wished to pursue her application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case(see, by contrast, Karner v. Austria, judgment of 24 July 2003, Reports of Judgments and Decisions 2003 - IX, § 28). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 as well as Rule 39, and to strike the case out of the list, in accordance with Article 37 § 1 (a) of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy