Communicated on 6 September 2016
THIRD SECTION
Application no. 10803/16
S.W.
against Russia
lodged on 24 February 2016
STATEMENT OF FACTS
The applicant, Mr S.W., is a Syrian national who was born in 1997 in Alleppo. He is currently detained in Makhachkala. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Mr S. Magomedov, a lawyer practising in Makhachkala.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in Russia in March 2013. After his visa expired, he remained in Russia illegally.
In August 2015 the Sovetsky District Court of Makhachkala convicted the applicant of residing in Russia illegally and ordered his administrative removal to Syria. On the same day the applicant was placed in custody, and remains so to date.
Later the same month the Dagestan Supreme Court upheld the administrative removal order on appeal. It held, in particular, that under domestic law judges had no discretion as to whether to impose the penalty of administrative removal; that penalty was to be imposed automatically.
In September 2015 the applicant applied for temporary asylum.
In December 2015 the Dagestan Republic migration authority rejected the applicant’s application for temporary asylum, finding that there was no evidence that he had been persecuted or personally targeted in any other way. The only reason for his application for temporary asylum was the ongoing military conflict and the ensuing humanitarian crisis in Syria. His situation was no worse than that of the general Syrian population. Moreover, the applicant would be removed to Damascus, which was controlled by Government forces and was therefore safe. There were no grounds for granting temporary asylum.
In February 2016 the applicant applied for refugee status.
In March 2016 the applicant challenged the December 2015 decision refusing temporary asylum before the Federal Migration Authority of the Russian Federation. Relying on United Nations reports, he claimed that if he were deported to Syria he would run a high risk of death owing to the widespread violence prevailing in all Syrian regions because of the ongoing military conflict there.
COMPLAINTS
1. The applicant complains under Articles 2, 3 and Article 4 of Protocol No. 4 that in the event of his removal to Syria he would face a risk of death and/or torture there and that the domestic authorities did not examine his claims about the existence of such risk with the requisite thoroughness.
2. The applicant complains under Article 5 §§ 1 and 4 that his detention pending administrative removal is unlawful and arbitrary and that there is no effective procedure by which he can challenge the continuation of his detention.
3. The applicant complains that his representative is not allowed to visit him in detention and has had difficulties in passing documents to him for signature, including powers of attorney and application forms.
QUESTIONS TO THE PARTIES
1. Will there be a violation of Article 2 or 3 of the Convention in the event of the applicant’s removal from Russia to Syria (see L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, 15 October 2015)?
2. Did or does the applicant have effective remedies for his complaint, as required under Article 13 of the Convention? In particular, did or does he have access to a remedy which could grant appropriate relief (see Tselovalnik v. Russia, no. 28333/13, § 64, 8 October 2015), and would provide independent and rigorous scrutiny and have suspensive effect (see De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012)?
3. Has there been a violation of Article 5 § 1 of the Convention? In particular, what is the legal basis for the applicant’s detention? Given that the August 2015 decision did not refer to the domestic provision on which his detention was based and did not set a time-limit for his detention, was the applicant 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 applicant’s 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)?
5. Taking into account the inability of the applicant’s legal representative to visit him in the detention facility, has there been any hindrance by the State with the effective exercise of the applicant’s right of application, guaranteed by Article 34 of the Convention?
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