Communicated on 19 March 2015
FIRST SECTION
Applications nos. 29957/14 and 29961/14
M.S.A. against Russia
and R.K. against Russia
lodged on 16 April 2014 and 15 April 2014 respectively
STATEMENT OF FACTS
The applicants are Syrian nationals. They are represented before the Court by Ms O. Tseytlina, a lawyer practising in St Petersburg. The applicants are currently detained in the detention centre for aliens in St Petersburg.
1. Application no. 29957/14 lodged on 16 April 2014 by M.S.A. who was born on 11 August 1987.
2. Application no. 29961/14 lodged on 15 April 2014 by R.K. who was born on 25 November 1974.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. The applicants’ arrest and administrative proceedings
The applicants come from the city of Aleppo in Syria. They are of Kurdish ethnic origin. Prior to his departure from Syria applicant M.S.A. served in a missile unit of the Syrian army.
In February 2012 the applicants arrived in Russia from Syria with Russian tourist visas. They allege that they fled Syria because of the military conflict there and large scale violations of public order. Applicant M.S.A. also submitted that he did not want to serve in the Syrian army.
In July 2013 Russian border guards arrested the applicants when they were trying to cross the border and go to Finland.
On 20 December 2013 the Vyborgskiy District Court of the Leningrad region (“the District Court”) found the applicants guilty of attempted unlawful border crossing and sentenced them to six months’ imprisonment.
On 24 January 2014 the applicants were released. However, on the same date they were arrested on suspicion of breach of residence rules and administrative proceedings were initiated in their respect.
On the same date the District Court found the applicants guilty of breach of residence rules and ordered their administrative removal from the territory of the Russian Federation. The District Court also held that pending their removal the applicants had to be detained in the temporary detention centre for aliens.
The applicants’ counsel appealed against those decisions to the Leningrad Regional Court (“The Regional Court”). She submitted that the only state which would be ready to accept the applicants was Syria. However, it was impossible to remove the applicants to Syria for two reasons: firstly, there was an ongoing military conflict and all flights from Russia to that country had been cancelled. Secondly, even assuming that there was a means to transport them to Syria, their removal would put their lives in danger and would be in breach of Article 3 of the Convention. In support of her submissions the applicants’ counsel referred to the position of the United Nations High Commissioner for refugees who had asked the governments to freeze removals to Syria because of the military conflict there. Finally, the applicants’ counsel submitted that the District Court had not set any time-limits for the applicants’ detention pending the administrative removal and that their detention had not been amenable to judicial control.
On 12 February 2014 the Regional Court upheld the decisions of 24 January 2014.
The applicants provided the Court with a copy of the decision delivered on 13 February 2014 by the Regional Court on the appeal lodged by their compatriot Mr A. against the removal order. In that case the Regional Court quashed the removal order and ordered to release the applicant. In particular, the Regional Court had had regard to Mr A.’s submissions whereby he had not returned to Syria because of the military conflict there and to a letter of 13 February 2013 by the United Nations High Commissioner for refugees. In that letter the High Commissioner for refugees indicated that persons fleeing Syria had to be regarded as refugees and had to be granted international protection until the improvement of the situation in that country. In addition, the Regional Court noted, that according to the information provided by the Deputy Head of the Federal Bailiffs’ service, the entry to Syria was closed because of military operations on its territory.
2. Proceedings for temporary asylum
On 10 February 2014 the applicants applied for temporary asylum in Russia. It appears that those proceedings are pending.
3. Conditions of the applicants’ detention in the centre for temporary detention of aliens
Since their arrest on 14 February 2014 and until present the applicants have been detained in the temporary detention centre for aliens in St Petersburg.
The applicants are held in cell no. 511 which measures about nine square metres and accommodates six inmates. There are six beds in the cell. The detainees are not allowed to have outdoor exercise. They are not allowed to open the window in their cell. There is no dining table in the cell. The cell is not equipped with TV set.
B. Relevant information on Syria
8th report of the independent international commission of inquiry on the Syria Arab Republic (A/HRC/27/60, 13 August 2014)[1]
“The findings presented in the present report, based on 480 interviews and evidence collected between 20 January and 15 July 2014, establish that the conduct of the warring parties in the Syrian Arab Republic has caused civilians immeasurable suffering.
Government forces continued to perpetrate massacres and conduct widespread attacks on civilians, systematically committing murder, torture, rape and enforced disappearance amounting to crimes against humanity. Government forces have committed gross violations of human rights and the war crimes of murder, hostage‑taking, torture, rape and sexual violence, recruiting and using children in hostilities and targeting civilians. Government forces disregarded the special protection accorded to hospitals and medical and humanitarian personnel. Indiscriminate and disproportionate aerial bombardment and shelling led to mass civilian casualties and spread terror. Government forces used chlorine gas, an illegal weapon.
Non-State armed groups, named in the report, committed massacres and war crimes, including murder, execution without due process, torture, hostage-taking, violations of international humanitarian law tantamount to enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups besieged and indiscriminately shelled civilian neighbourhoods, in some instances spreading terror among civilians through the use of car bombings in civilian areas. Members of the Islamic State of Iraq and Al-Sham (ISIS) committed torture, murder, acts tantamount to enforced disappearance, and forcible displacement as part of an attack on the civilian population in Aleppo and Ar Raqqah governorates, amounting to crimes against humanity.”
COMPLAINTS
The applicants complain under Article 3 of the Convention that in the event of their removal to Syria they would be subjected to treatment in breach of that provision on account of the general situation of violence in Syria.
They complain under Article 3 that they are held in inhuman and degrading conditions in the temporary detention centre for aliens in St Petersburg.
They complain under Article 5 § 1 (f) that their detention pending administrative removal is unlawful.
They complain under Article 5 § 4 that Russian law does not provide for periodic review of the lawfulness of the detention following the decision on administrative removal.
QUESTIONS
1. Before deciding on the applicants’ administrative removal, did the authorities consider the applicants’ claims that they would be exposed to a risk of being subjected to treatment contrary to Article 3 of the Convention if returned to Syria or any other country? In the light of the applicants’ claims and the documents which have been submitted, would the applicants face a real risk of being subjected to treatment in breach of Article 3 of the Convention if the removal order was enforced? The Government are also required to inform the Court of the outcome of the proceedings for temporary asylum and provide copies of relevant documents.
2. Were the conditions of the applicants’ detention in the detention centre for aliens in St Petersburg compatible with Article 3 of the Convention? The Government are requested to indicate during which period the applicants were detained in that centre and in which cells. They are asked to comment on all aspects of the conditions of detention, as outlined by the applicants, with special emphasis on the overcrowding problem. They are requested to produce documents indicating the dimensions of the cells in which the applicants were detained and the number of inmates per cell.
3. Were the applicants’ arrest on 24 January 2014 and their subsequent detention in breach of Article 5 § 1 of the Convention? In particular:
(a) Did the applicants’ deprivation of liberty during the above period fall within one or more sub-paragraphs of Article 5 § 1?
(b) If so, was the deprivation of liberty during the above period “lawful” and not arbitrary?
- What was the legal basis for the applicants’ detention during that period?
- Were the provisions governing the applicants’ detention during the above period sufficiently clear and foreseeable in their application?
- Did the decisions of 24 January 2014, as upheld on 12 February 2014, specify the time-limit for the applicants’ detention? If not, until what date were the applicants deprived of their liberty on the basis of that decision?
- Has there been a realistic prospect of the applicants’ expulsion to Syria or other country? Have the administrative removal proceedings been conducted with special diligence?
4. Did the applicants have at their disposal the procedure by which the lawfulness of their detention can be examined by a court and their release be ordered, as required by Article 5 § 4 of the Convention?
[1]1. The Independent International Commission of Inquiry on the Syrian Arab Republic was established on 22 August 2011 by the Human Rights Council through resolution S-17/1 adopted at its 17th special session with a mandate to investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic.
The Commission was also tasked to establish the facts and circumstances that may amount to such violations and of the crimes perpetrated and, where possible, to identify those responsible with a view of ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable.
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