Communicated on 16 September 2016
THIRD SECTION
Application no. 19980/16
N.K. and Others
against Russia
lodged on 13 April 2016
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. They are currently detained in Murmansk.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
According to the applicants, they arrived to Russia to visit their relatives who reside there as refugees. Due to the lack of knowledge of Russian, they failed to have the extension of their visa authorised to continue to stay in Russia legally.
On 25 February 2016 the Perovskiy District Court of Moscow found the applicants in violation of the visa regulations, imposed a fine on them and ordered their expulsion to Syria. The applicants did not appeal against the said decision and moved to Murmansk. The decision came into force on 10 March 2016.
On 21 March 2016 the applicants were arrested in Murmansk and on the same date the Oktyabrskiy District Court of Murmansk found that the applicants had failed to comply with the court order of 25 February 2016, imposed a fine and ordered their expulsion to Syria. The court further remanded the applicants in custody pending expulsion. The applicants appealed. They argued that they could not return to Syria in view of the ongoing military conflict there.
On 5 April 2016 the Murmansk Regional Court dismissed the applicants’ appeal. In response to the applicants’ argument that they could not go back to Syria in view of the ongoing military conflict there, the court reasoned that the applicants had not applied for asylum and that they had no ties with Russia (no family or employment there). The applicants did not attend the hearing.
On 20 May 2016 the Regional Court amended the judgment of 21 March 2016. It quashed the judgment in part ordering the applicants’ expulsion to Syria and their placement in custody. The applicants were released. They currently reside in the Moscow Region.
On an unspecified date the applicants asked for asylum in Russia. They did not inform of the outcome of the proceedings.
COMPLAINTS
On 13 April 2016 the applicants complain under Article 2 and of the Convention that in the event of their removal to Syria they would face a risk of death and/or torture there and that the domestic courts failed to examine the applicant’s arguments to that effect.
On 4 May 2016 the applicants complain under Article 5 §§ 1 and 4 of the Convention that their detention pending expulsion is unlawful and arbitrary and that there is no effective procedure which they can challenge the continuation of their detention.
On 16 May 2016 the applicants complain under Article 4 of Protocol No. 4 to the Convention and that the domestic authorities failed to examine the particular circumstances of their case.
QUESTIONS TO THE PARTIES
1. Will there be a violation of Article 2 or 3 of the Convention in the event of the applicants’ 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 widespread violence in Syria, per se, make any removal to that country incompatible with Articles 2 and 3 of the Convention?
2. Did or do the applicants have effective remedies for their complaint, as required under Article 13 of the Convention? In particular:
- In the various domestic proceedings, did the applicants adduce evidence capable of proving that there were substantial grounds for believing that they would be exposed to a real risk of death and/or ill‑treatment in Syria? In their turn, did the Russian authorities dispel any possible doubts about that risk (see Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008)? Did the applicants obtain an “independent and rigorous scrutiny” of that claim by the Russian authorities, including the courts?
- Does the Code of Administrative Offences and/or the established judicial practice in respect of it make provision for (i) the examination of arguments relating to a risk of ill-treatment in the destination State; and (ii) suspending enforcement of the penalty of administrative removal on account of such a risk, especially where that penalty was mandatory?
- Does Russian law require the automatic suspension of administrative removal during (i) examination of an application for temporary asylum, and (ii) judicial review of the refusal of temporary asylum? Do the statutory provisions on temporary asylum and the settled case-law set clear and foreseeable criteria for granting temporary asylum? Is a risk of death and/or ill-treatment among the relevant criteria and grounds?
- Does an application for refugee status constitute an effective remedy? In particular, does such application have an “automatic suspensive effect” vis‑à-vis an enforceable administrative removal order? Will the effectiveness of that procedure be adversely affected by the fact that the applicants did not apply for asylum immediately after their arrival in Russia?
The respondent Government are invited to refer to specific provisions of domestic law and to provide relevant examples from the case-law of the 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 applicants’ detention? Given that the decision of 21 March 2016 did not refer to the domestic provision on which their detention was based and did not set a time-limit for their detention, were the applicants 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 applicants’ detention and the impossibility of pursuing an application for release resulted in a violation of Article 5 § 4 of the Convention (see Azimov, cited above, §§ 150-55, and Kim v. Russia, no. 44260/13, §§ 39-45, 17 July 2014)?
APPENDIX
No.
Firstname LASTNAME
Birth year
Nationality
Representative
N.K.
1945
Syrian
R. ALIYEV
A.K.
1987
Syrian
R. ALIYEV
K.R.
1957
Syrian
R. ALIYEV
Full & Egal Universal Law Academy