FIRST SECTION

DECISION

Application no . 78386/14 David SAAKYAN against Russia

The European Court of Human Rights ( First Section ), sitting on 15 September 2015 as a Chamber composed of:

András Sajó , President, Elisabeth Steiner , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Erik Møse , Dmitry Dedov , judges, and André Wampach , Deputy Section Registrar ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr David Saakyan , was born in 1987 . He was represented before the Court by Ms O. Plykina , a lawyer practising in Moscow .

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant was born in Yerevan, the capital of the Armenian SSR of the Soviet Union. Since the age of three he has been living with his parents in the Russian Federation, first in Belgorod and later in Moscow. The applicant ’ s mother, brother and sister are Russian nationals; his father died in 2006. In his application form, the applicant indicated that he was a stateless person.

5 . On 18 September 2013 the police apprehended the applicant because he did not have identity documents . As he could not show that his residence in Russia was legal , t he police charged him with a breach of residence regulations committed in Moscow, an offence under Article 18.8 § 3 of the Code of Administrative Offences.

6 . On 20 September 2013 the Savelovskiy District Court of Moscow found the applicant guilty as charged and sentenced him to a fine of 7,000 Russian roubles and administrative removal from Russia. The judge described the applicant as an Armenian national and ruled that he should be detained in the Moscow detention centre for aliens until expulsion.

7 . By a letter of 11 March 2014, the consular section of the Embassy of Armenia in Russia informed the Federal Migration Service that the applicant ’ s name was not listed in the Armenian passports database, that an Armenian passport had never been issued to him, and that he had never had a registered place of residence in Armenia. Having regard to these elements, the consulate stated that it was unable to issue a travel document for him.

8 . On 14 August 2014 the Moscow City Court heard an appeal against the expulsion order and dismissed it. The City Court held that the applicant ’ s placement in the detention centre had been lawful and that there were no grounds to “recognise, in accordance with the established procedure, that the [applicant] was a stateless person”.

9 . On 13 October 2014 the applicant asked the Savelovskiy District Court to discontinue enforcement of the removal order and to release him from custody. He pointed out that he was not an Armenian national and that he had spent more than twelve months in custody. He relied on the Kim v. Russia judgment ( no. 44260/13 , 17 July 2014) and alleged violations of Articles 3 and 5 §§ 1 and 4 of the Convention.

10 . In their reply to the applicant ’ s petition, dated 15 October 2014, the Federal Migration Service acknowledged that, owing to the applicant ’ s statelessness, the removal order of 20 September 2013 was unenforceable and that the applicant ’ s further detention was “devoid of purpose”.

11 . On 16 October 2014 the District Court rejected his petition, holding that there were no legal grounds for discontinuing the enforcement. It noted that the judgment of 20 September 2013 had not been quashed, that the time-limit for its execution had not expired and that the Code of Administrative Offences did not provide for a possibility to discontinue enforcement of a removal order. The court did not address the applicant ’ s factual submissions or Convention arguments.

B . The proceedings before the Court

12. O n 24 March 2015 the application was communicated to the respondent Government.

13. On 19 May 2015 the Government submitted their observations, from which it transpired that on 6 March 2015 the Armenian Embassy had issued a temporary one-way travel document (“return certificate”) allowing the applicant to return to Armenia. On 11 March 2015 the applicant had been deported from Russia.

14. As it appeared that the applicant was of Armenian nationality rather than a stateless person, as he had originally stated , on 22 May 2015 the Court invited the Armenian Government to indicate their preference, before 24 July 2015, whether or not they proposed to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention). No response from the Armenian Government has been received.

15. By letter of 25 June 2015, the applicant ’ s representative informed the Court that the applicant had decided to withdraw his application on 2 February 2015 and that she had had no contact with him since that date. She enclosed a copy of the withdrawal request signed by the applicant.

16. On 22 July 2015 the Government asked the Court to strike the application out of its list of cases.

C. Relevant domestic law

17 . On 15 September 2015 a new Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015) entered into force. Chapter 28 governs the proceedings for placement of an alien into a special-purpose facility pending his or her deportation or re-admission. Article 269 § 2 requires the courts deciding on the detention of an alien to set a “reasonable time-limit” for such detention and to justify its duration.

COMPLAINTS

18 . The applicant complain ed under Article 5 §§ 1 and 4 of the Convention that he continue d to be detained “with a view to deportation”, although no State was ready to accept him, and that the Russian law ma d e no provision for a periodic review of his detention.

19 . The applicant complain ed under Article 8 of the Convention that, in issuing the removal order, the Russian courts had not take n into account his family connections in Russia.

THE LAW

20. The applicant ’ s representative informed the Court of the applicant ’ s intention to withdraw his complaints. According to the Court ’ s case-law, an applicant ’ s undertaking to withdraw from proceedings which he or she has initiated before the Court is capable of justifying the striking out of that application, in accordance with Article 37 § 1 (a) of the Convention, but such a waiver, in order to be valid, must be unequivocal (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 3 0 , ECHR 2006 ‑ XIV , and Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 57 , ECHR 2000 ‑ VII ).

21. In the instant case, the statement indicating the applicant ’ s desire to discontinue the proceedings bears the signature of the applicant and his representative. It is unequivocal in its terms and must therefore be considered valid. It remains to be verified whether or not respect for human rights require s the continued examination of the application (Article 37 § 1 in fine of the Convention)

22. On the latter point, the Court makes the following observations. By the time the application was lodged, the applicant had been detained in Moscow for more than eighteen months without any apparent prospect of release. On 11 March 2015 he was deported to Armenia and he must now be presumed to be at liberty. There was no apparent impediment which could have prevented him from contacting the Court from his current location, had he wished to continue the proceedings. Lacking his current contact details, the Court has no means to contact him, whereas the Armenian Government chose not to exercise its right to intervene in the proceedings.

23. On a general level, the main issue in the present case related to a recurrent problem in applications against Russia, that of an inordinately lengthy detention of aliens with a view to their deportation and a lack of regular judicial review of their situation. S tarting with the Azimov judgment, the Court has found a violation of Article 5 § 4 on account of the absence of any domestic legal provision which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion in the light of new factors which emerged subsequent to the decision on his initial placement in custody (see Azimov v. Russia , no. 67474/11, §§ 153-54, 18 April 2013; Ismailov v. Russia , no. 20110/13, §§ 96-102, 17 April 2014; Akram Karimov v. Russia , no. 62892/12, §§ 199 ‑ 204, 28 May 2014; Egamberdiyev v. Russia , no. 34742/13, § 64, 26 June 2014; Rakhimov v. Russia , no. 50552/13, §§ 148-150, 10 July 2014 , and Eshonkulov v. Russia , no. 68900/13, § 59, 15 January 2015 ).

24 . In the most recent case of Mr Kim, a stateless person who had spent more than two years in custody on the basis of an expulsion order, the Court indicated to the Russian Government under Article 46 of the Convention the general measures required to prevent similar violations. It considered that the respondent State should secure in its domestic legal order a mechanism which allows individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings and also envisage taking the necessary general measures to limit detention periods so that they remain connected to the ground of detention applicable in an immigration context (see Kim , cited above, §§ 71-72 ). It falls to t he Committee of Ministers, acting under Article 46 of the Convention, to supervise, in the light of the information provided by the respondent State, the execution of the Court ’ s judgment and to follow up on the implementation of general measures and evolution of administrative and judicial practice in line with the Convention requirements.

25. The Court finally notes that, starting from 15 September 2015, a new Code of Administrative Procedure requires Russian courts to set a specific time-limit for detention pending deportation which must remain “reasonable” and to give a justification for their decision (see paragraph 17 above). In the light of this evolution of the legislative framework, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 8 October 2015 .

André Wampach András Sajó Deputy Registrar President