THIRD SECTION

DECISION

Application no. 3086/19 M.F. and Others against Russia

The European Court of Human Rights (Third Section), sitting on 1 September 2020 as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Gilberto Felici , judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 26 December 2018,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the third party,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants are Iranian nationals, their particulars are set out in the appendix. Under Rule 47 § 4 of the Rules of Court the Court decided that the applicants ’ names should not be disclosed to the public.

2 . The applicants were represented by Mr A. Ryzhov , a lawyer practising in Moscow

3 . The Russian Government (“the Government”) were represented by Mr M. Galperin , the Representative of the Russian Federation to the European Court of Human Rights.

4 . On 16 January 2019, the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government, under Rule 39 of the Rules of Court, that applicants should not be removed to Iran for the duration of the proceedings before the Court.

5 . On 13 September 2019 the Court has granted ADF International ’ s leave, under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, to intervene as a third party in the proceedings. They submitted their comments on 31 October 2019.

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

7 . On 30 July 2016 the applicants arrived in Moscow holding single entry tourist visas with the declared purpose of sightseeing in Moscow. According to their own subsequent admission the real purpose of their travel was transit over the land border to Norway with the view of seeking asylum.

8 . On 2 August 2016 they took a flight to Murmansk and were apprehended on arrival by the authorities for violation of migration rules, i.e. presence in the region other than the one declared for tourist travel. An administrative fine was imposed on them for the offence. The applicants were released and advised that after they had paid the fine they could travel to another country.

9 . It appears from the submissions that the applicants decided to pursue their plan and unlawfully cross the border. They buried their identity documents in order to conceal their identities.

10 . On 6 August 2016 the applicants were arrested by the border patrol during an attempted crossing of the Russian border.

11 . On 8 August 2016 the Oktyabrskiy District Court of Murmansk found the applicants guilty of violation of migration rules, fined them, ordered their involuntary removal ( принудительное выдворение ) from Russia and detained them pending enforcement of the removal order. The applicants ’ allegations concerning the risk of ill-treatment in case of return to Iran were dismissed.

12 . During their stay in the detention centre the applicants lodged temporary asylum requests. The requests were accepted for consideration and the applicants were asked to provide supporting evidence. It appears that they never did it.

13 . On 28 September 2016 the Murmansk Regional Court annulled the lower court ’ s judgments and ordered reconsideration.

14 . On 30 September 2016 the Oktyabrskiy District Court of Murmansk having reconsidered the case found the applicants guilty of violation of migration rules, i.e. loss of passports and migration cards and failure to report it, and fined them. The District Court decided not to issue the removal order.

15 . On 7 October 2016 the applicants left Murmansk for Moscow.

16 . Two months after their arrival in Moscow, on 30 November 2016 the applicants applied for a refugee status. Their applications were dismissed by the migration authorities on 31 January 2017. The applicants lodged administrative and judicial appeals.

17 . On 30 March and 18 April 2018 the Moscow City Court by a final decision dismissed the applicants ’ appeals.

18 . On 13 June 2018 the applicants applied to the migration authorities in Moscow with a temporary asylum request. The officers, having established that the applicants ’ legal stay in Russia had expired, arrested them for violation of migration rules. The administrative offence records signed by the applicants stated that they had “satisfactory command of the Russian language” and needed an interpreter and included handwritten remarks “I agree [to the content] of the record”. The written statements submitted to the arresting officer were signed by the applicants and included typed indication “satisfactory command of the Russian language, no need of an interpreter” and handwritten remarks “Recorded correctly from my own words” in the end. The formal notifications of the rights signed by the applicants contained handwritten remarks “I acknowledge [the guilt]”.

19 . On 14 June 2018 the Lyuberetskiy Town Court of the Moscow Region found the applicants guilty of violation of migration rules, i.e. overstaying the validity of their visas, and fined them. The District Court ordered the applicants to voluntarily leave ( самостоятельный контролируемый выезд ) Russia. According to the text of the judgments, the applicants had represented themselves, stated that they did not need interpreters and admitted that they had overstayed the validity of their visas. They were released on the same day.

20 . The applicants appealed. Their written statements of appeal referred to their fears of return to Iran and did not mention any point related to the absence of an interpreter in the proceedings. They also did not challenge the lawfulness of their arrest and detention between 13 and 14 June 2018.

21 . On 12 July 2018 the judgments were upheld on appeal by the Moscow Regional Court. During the appeal hearing the applicants were represented by a lawyer and were provided with an interpreter.

22 . According to the records of the hearing in respect of the first applicant, the representative orally raised the following claim: “There had been no interpreter during the administrative inquiry and drawing of the administrative offence record. [The applicant] has no command of the Russian language. I consider this to be a serious procedural violation of the rights”. The Regional Court summarily dismissed this argument.

23 . According to the records of the hearing in respect of the second applicant, he stated that he had poor command of the Russian language and needed an interpreter, while the representative made no comments in this regard.

24 . No appeal hearing records in respect of the third applicant were provided to the Court.

25 . Four months later in November 2018 the applicants applied for temporary asylum. Their applications were dismissed by the migration authorities in January 2019. On 26 February 2019 the decision was upheld by the final administrative decision of the federal migration authority. Six months later the applicants challenged the decision in courts. No information was provided to the Court on the progress of the proceedings.

26 . On 7 November 2018 the Lyuberetskiy Town Court of the Moscow Region repeatedly found the applicants guilty of violation of migration rules, i.e. overstaying the validity of their visas, and fined them. The District Court referring to the applicants ’ claims under Article 3 of the Convention decided not to issue a removal order.

COMPLAINTS

27 . The applicants complained under Article 3 of the Convention that their removal to Iran would expose them to a real risk of ill-treatment. They further complained under Article 13 in conjunction with the above complaint under Article 3 about the lack of domestic remedies in respect of their claims. Lastly, they complained under Article 5 § 2 of the Convention that after their arrest on 13 June 2018 they were not promptly informed in the language they understand of the reasons of their arrest.

THE LAW

28 . The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the destination country. In these circumstances, Article 3 implies an obligation not to deport the person in question to that country (see F.G. v. Sweden [GC], no. 43611/11, § 111, 23 March 2016 with further references).

29 . Furthermore, in cases concerning the expulsion of asylum-seekers the Court has explained that it does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement , be it direct or indirect, to the country from which he or she has fled (see F.G. , cited above, § 117).

30 . In the judgement in the case Khan v. Germany ( (striking out) [GC] , no. 38030/12, §§ 33-34, 21 September 2016) the Court confirmed that a case may be struck out of the list when an applicant no longer faces a threat of removal be it by virtue of granting a residency permit or when it was clear from the information available that, at the moment or for a considerable time to come, there has been no risk of being expelled, and that he or she had the opportunity to challenge any new expulsion order before the national authorities and if necessary before the Court.

31 . Turning to the present case the Court observes that the applicants were refused refugee status by the final decisions of the Moscow City Court on 30 March and 18 April 2018 and that apparently the administrative refusal of temporary asylum is currently being challenged in courts (see paragraphs 17 and 25 above). At the same time the Court notes that since their arrival to Russia, which had happened four years ago, the Russian authorities had not issued final and enforceable decisions ordering the applicants ’ forcible removal from the Russian territory and never stated their intention to remove them to Iran. The judgment of 8 August 2016 by the Oktyabrskiy District Court of Murmansk ordering involuntary removal ( принудительное выдворение ) was annulled on appeal by the Murmansk Regional Court on 28 September 2016 (see paragraphs 11 and 13 above). The judgment of 14 June 2018 by the Lyuberetskiy Town Court of the Moscow Region ordered the applicants to voluntarily leave ( самостоятельный контролируемый выезд ) Russia, but neither set in motion any removal procedure nor indicated to which country the applicants should travel (see paragraph 19 above). Lastly, it must not be overlooked that the most recent judgment of 7 November 2018 by the Lyuberetskiy Town Court of the Moscow Region expressly stated that no removal order was issued in the view of the applicants claims under Article 3 of the Convention (see paragraph 26 above).

32 . The Court also notes that except for the two months, which the applicants had spent in detention in 2016, they had, at least in principle, the possibility of travelling from Russia to another country of their choice.

33 . Thus it is clear from the information available that, at the present moment and for a considerable time to come, the applicants face no risk of being expelled, and that they have the opportunity to challenge any new expulsion order before the national authorities and if necessary before the Court.

34 . Accordingly, the Court concludes that, within the meaning of Article 37 § 1 (c) of the Convention, it is no longer justified to continue to examine the complaint under Article 3 of the Convention and the related complaint under Article 13 and decides to strike the case out of its list of cases in this regard.

35 . The Court discerns no special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto requiring the continued examination of the application insofar as it concerns Articles 3 and 13 of the Convention (Article 37 § 1 in fine ).

36 . The applicants complained under Article 5 § 2 of the Convention that after their arrest on 13 June 2018 they had not been promptly informed in the language they understand of the reasons of their arrest. The Convention provision reads as follows:

“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

37 . The Government challenged that argument. They essentially maintained that the applicants had sufficient command of the Russian language, which had been confirmed by the written records of the administrative arrest and the texts of the judgments of the Lyuberetskiy Town Court of the Moscow Region of 14 June 2018.

38 . In their observations the applicants maintained that they barely spoke Russian and that even if they understood the police officer, their language skills were not sufficient to understand the legal terms and extracts of the legislation in the documents they signed. They further highlighted certain spelling mistakes in the handwritten remarks on the written records of the administrative arrest. Lastly, the applicants observed that in all other proceedings they had been provided with an interpreter.

39 . It is well established that paragraph 2 of Article 5 lays down an elementary safeguard: any person who has been arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: any person who has been arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his deprivation of liberty, so as to be able to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 115, 15 December 2016 with further references).

40 . In respect of practical implementation of the above safeguards the Court had previously found that an arrested person may not claim a failure to understand the reasons for the arrest in circumstances where he was arrested immediately after the commission of a criminal and intentional act (see Dikme v. Turkey , no. 20869/92, § 54, ECHR 2000 ‑ VIII ), where he was aware of the details of alleged offences contained within previous arrest warrants and extradition requests (see Öcalan v. Turkey ( dec. ), no. 46221/99, 14 December 2000) or where the circumstances of the arrest allowed to understand that the reason for his arrest and detention was related to immigration irregularities (see Kane v. Cyprus ( dec. ), no. 33655/06, 13 September 2011).

41 . Turning to the present case the Court first highlights that the thrust of the applicants ’ arguments in their observation was that their poor command of the Russian language had prevented them from understanding the legal terms and extracts of the legislation in the documents they signed. However, as it had been reiterated above, Article 5 § 2 of the Convention requires that an arrested person be told in non-technical language that he can understand the essential legal and factual grounds for his deprivation of liberty, so as to be able to apply to a court to challenge its lawfulness.

42 . According to the applicants ’ own admission, they could speak some Russian and could understand the police officer, while not to the degree affording comprehension of legal terms and legislative provisions. Furthermore, they made several handwritten remarks in Russian, although with certain spelling mistakes, on the written records signed by them on 13 June 2018, such as “I agree [to the content] of the record”, “Recorded correctly from my own words”, “I acknowledge [the guilt]” (see paragraph 18 above). Therefore, it must be concluded that the applicants understood at least to a certain non-technical degree the grounds for their arrest. The Court also notes that the applicants ’ arrest took place directly following the lodging of the temporary asylum requests and was related to the expiry of their legal stay in Russia (ibid.). Accordingly, the circumstances of the arrest allowed them to understand that the reason for it was related to immigration irregularities (see similarly Kane , cited above).

43 . It must be stresses that the ultimate purpose of the safeguard put in place by Article 5 § 2 of the Convention is to allow an arrested person to apply to a court to challenge lawfulness of the arrest in accordance with paragraph 4 of that Article. In this connection the Court notes that the applicants have not asserted that they had encountered any difficulty in this regard or that they had attempted to challenge the lawfulness of the arrest at all. They participated in the first instance hearing on 14 June 2018 without interpreters and made no objection in this regard (see paragraph 19 above). Their written statements of appeal contained no relevant arguments. Lastly, when represented by a lawyer and provided with an interpreter during the appeal hearing on 12 July 2018, the representative only referred to the absence of an interpreter during arrest of the first applicant, while not raising any such claims in respect of the second and the third applicants (see paragraphs 21-24 above).

44 . Having regard to all of the above considerations, the Court dismisses the applicants ’ complaint under Article 5 § 2 of the Convention as manifestly ill-founded and declares it inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

45 . Considering that under Article 28 § 2 of the Convention the present decision is final, the interim measure previously indicated under Rule 39 of the Rules of Court comes to an end.

For these reasons, the Court, unanimously,

Decides to strike the application out of the list of cases in part concerning the complaints under Articles 3 and 13 of the Convention;

Declares the complaint under Article 5 § 2 of the Convention inadmissible.

Done in English and notified in writing on 24 September 2020 .

Olga Chernishova Alena Poláčková Deputy Registrar President

Appendix

No.

Applicant ’ s initials

Gender

Year of birth

1M.F.

M

1982

2K.K.

M

1982

3N.M.

M

1981