Communicated on 11 July 2017
THIRD SECTION
Application no. 30261/17
R.K.
against Russia
lodged on 24 April 2017
STATEMENT OF FACTS
The applicant, Mr R.K., is a national of the Democratic Republic of the Congo (“the DRC”), who was born in 1990. He is currently detained in a detention centre for aliens in Russia. The President granted a request from the applicant for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Mr M. Abdul Gani, a lawyer practising in Moscow.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows. In 2015 the applicant, wanted in the DRC on State security-related charges, arrived in Russia. In March 2016 he applied for temporary asylum. The migration authorities rejected his application as unsubstantiated, and in March 2017 a domestic court upheld the refusal in the first instance. In April 2017 he lodged a new request for temporary asylum. The proceedings are currently pending.
In March 2017 the applicant was arrested. In April 2017 domestic courts found the applicant guilty of breaching the rules governing the stay of foreign nationals in Russia and ordered his administrative removal and the payment of an administrative fine. The courts ordered that the applicant was to be held at the centre for the temporary detention of aliens until his removal.
COMPLAINTS
The applicant complains that if removed to the Democratic Republic of the Congo he faces a risk of being subjected to treatment in breach of Articles 2 and 3 of the Convention in order to make him confess to a crime which he has not committed.
He complains under Article 13 of the Convention of a failure by the domestic courts to give due consideration to the above-mentioned risks, thereby depriving him of an opportunity to effectively challenge the decision on his administrative removal.
The applicant further challenges the lawfulness of his detention pending administrative removal under Article 5 § 1 (f) of the Convention.
Lastly, he complains under Article 5 § 4 of the Convention that the Russian law governing detention pending administrative removal is not clear and foreseeable in its application as it does not oblige the courts to give reasons for decisions to detain a person or to determine specific time‑limits for such detention, and does not provide for periodic review of the lawfulness of detention following a decision on administrative removal.
QUESTIONS TO THE PARTIES
1. Having regard to the enforceable administrative removal order, as upheld on appeal, will there be a violation of Article 2 and/or 3 of the Convention in the event of the applicant’s removal from Russia to the Democratic Republic of the Congo?
The respondent Government are invited to submit copies of the courts’ decisions.
2. Did or does the applicant have effective remedies for his complaint, as required under Article 13 of the Convention? In particular:
- In the various domestic proceedings, did the applicant adduce evidence capable of proving that there were substantial grounds for believing that he would be exposed to a real risk of death and/or ill‑treatment in the Democratic Republic of the Congo? In 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 applicant 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 an 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 applicant did not apply for asylum immediately after his 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 (f) of the Convention on account of the applicant’s detention with a view to his administrative removal? In particular:
(a) What was the legal basis for the applicant’s detention pending administrative removal?
(b) Were the provisions governing the applicant’s detention pending administrative removal sufficiently clear and foreseeable in their application?
(c) Did the court decisions specify a time-limit for the applicant’s detention? If not, until what date was the applicant deprived of his liberty on the basis of that decision?
4. Did the applicant have at his disposal a procedure by which the lawfulness of his detention could be examined by a court and his release ordered, as required by Article 5 § 4 of the Convention (see L.M. and Others v. Russia, nos. 40081/14 and 2 others, §§ 140-42, 15 October 2015; with further references)?
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