THIRD SECTION
DECISION
Applications nos. 43638/18 and 45099/18
Vladimir Bagdasarovich OGANEZOV against Russia
and Vladimir Vladimirovich OZHERELYEV against Russia
The European Court of Human Rights (Third Section), sitting on 12 November 2019 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above applications lodged on 29 August 2018 and 8 September 2018 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants’ personal details, the information concerning their applications, and the particulars of the domestic proceedings are set out in the Appendix.
2. The applicants were represented by Ms Y.Y. Drozdova, a lawyer practising in Georgiyevsk, the Stavropol Region. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. The facts of the case may be summarised as follows.
4. The Russian authorities issued decisions that declared the stay of the applicants in Russia “undesirable” (“the exclusion order”) and ordered their deportation. Soon after that, they were detained pursuant to provisions of the Code of Administrative Procedure of 2015 (“CAP”). The applicants were not deported because the authorities of the countries of their alleged destination (Georgia and Ukraine) informed the Russian migration service that the applicants were not nationals of their respective countries (see Appendix for details).
5. On 17 October 2017 the domestic court ordered the detention of Mr Oganezov pending deportation. He did not appeal against it. The term of his detention has since been extended four times. He lodged an appeal against the last two orders of extension of detention (see Appendix for details).
6. On 24 November 2017 the domestic court ordered the detention of Mr Ozherelyev pending deportation. He did not appeal against it. The term of his detention has since been extended at least three times. Mr Ozherelyev appealed only against the last order of extension of his detention (see Appendix for details).
7. Neither of the applicants lodged a cassation or supervisory review appeal against any of the decisions issued in their cases by the domestic courts.
COMPLAINTS
8. The applicants complained about the alleged unlawfulness of their detention, in breach of Article 5 § 1 (f) of the Convention.
THE LAW
9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
10. The Government submitted that the applicants had not appealed either against the decisions that their stay in Russia was undesirable or against the decisions of deportation. Furthermore, Mr Oganezov appealed against only two orders of extension of his detention and Mr Ozherelyev appealed against only one such order.
11. The applicants submitted that they had exhausted available domestic remedies in respect of their complaints.
12. The Court notes the provisions of Chapter 35 the Code of Administrative Procedure of 2015, which lay down the rules for cassation appeal review of final and enforceable judicial decisions and which were previously reproduced in the case Chigirinova v. Russia (dec.), no. 28448/16, §§ 9-23, 13 December 2016. Chapter 28 of the Code provides specific rules for placement in specialised centres for aliens of persons facing deportation or readmission. It does not provide any special rules or exceptions to the above procedure of cassation appeal review in cases falling under it.
13. The Court reiterates that any person who intends to lodge an application in respect of a violation of the rights under the Convention has to first use the remedies offered by the two-layer cassation procedure, since it constitutes an effective remedy capable of providing redress in cases examined under the Code of Administrative Procedure of 2015 (see Chigirinova, cited above, §§ 28-29 and see specifically, in the context of deportations, Pantsulai v. Russia, 34275/19, 8 October 2019).
14. The Court observes from the documents in the applicants’ case-files that not only neither of them has appealed against original order of detention but they also did not lodge a cassation appeal against appeal courts’ judgments that confirmed the extensions of the term of their detention by the first-instance courts (see paragraphs 5, 6 and 7 above and Appendix). It also does not follow from their submissions that they intended to do so, or were in any way prevented from lodging such appeal.
15. Given that Chapter 28 of the Code of Administrative Procedure of 2015 does not provide any special rules or exceptions to the above procedure of cassation appeal review for persons detained pending deportation, the Court concludes that the applicants did not exhaust the effective domestic remedies available to them. It therefore follows that this applications must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 5 December 2019.
Stephen PhillipsAlena Poláčková
RegistrarPresident
APPENDIX
No.
Application no./
Lodged on/
Applicant/
Date of birth/
Nationality/
Represented by
Detention
Removal proceedings
Other relevant information
1
43638/18
29/08/2018
Vladimir Bagdasarovich OGANEZOV
12/12/1985
Stateless (allegedly, born in Georgia)
Yelena Yevgenyevna DROZDOVA
Detention pending deportation
13 October 2017 – currently.
Deportation proceedings
14 March 2017 – decision declaring the applicant’s presence in Russia “undesirable” issued by the Ministry of Justice of Russia;
12 October 2017 – deportation ordered by the migration authorities of Stavropol Region;
13 October 2017 – detained for 48 hours with the view of deportation.
17 October 2017 - detention ordered pending deportation by the Georgievskiy Town Court; No appeal lodged.
20 December 2017 extension of detention ordered by the Georgievskiy Town Court. No appeal lodged.
21 February 2018 – extension of detention (until 19 May 2018) ordered by the Georgievskiy Town Court. No appeal lodged.
22 May 2018 - extension of detention (until 19 July 2018) by the Georgievskiy Town Court. The applicant appealed.
10 July 2018 - upheld by the Stavropol Regional Court.
20 July 2018 - extension of detention (until 19 October 2018) by the Georgievskiy Town Court.
The applicant appealed.
24 August 2018 - upheld by the Stavropol Regional Court.
23 January 2018 –Section of Georgia at the Swiss Embassy in Russia issued a letter stating that “it is not possible to issue [to the applicant] a certificate of return to Georgia because he is not a national of Georgia.”
2
45099/18
08/09/2018
Vladimir Vladimirovich OZHERELYEV
08/10/1966
Stateless (allegedly, born in Ukraine)
Yelena Yevgenyevna DROZDOVA
Detention pending expulsion
20 November 2017 – currently.
Deportation proceedings
13 March 2017 – decision declaring the applicant’s presence in Russia “undesirable” issued by the Ministry of Justice of Russia;
20 November 2017 – deportation ordered by the migration authorities of Stavropol Region; the applicant detained for 48 hours pending deportation.
24 November 2017 – detention pending deportation ordered by the Georgievskiy Town Court; No appeal lodged.
19 January, 20 March 2018 - extension of detention ordered by the Georgievskiy Town Court; No appeal lodged.
25 June 2018 - extension of detention ordered by the Georgievskiy Town Court; The applicant appealed.
2 August 2018 - last extension (until 20 September 2018) upheld by the Stavropol Regional Court.
No further information provided about the proceedings.
9 February 2018 – Consulate Section of the Embassy of Ukraine in Russia issued a letter stating that “... [the applicant] is not a national of Ukraine...”
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