Information Note on the Court’s case-law 234

November 2019

Z.A. and Others v. Russia [GC] - 61411/15, 61420/15, 61427/15 et al.

Judgment 21.11.2019 [GC]

Article 5

Article 5-1

Deprivation of liberty

Asylum-seekers held for lengthy periods in airport transit zone: violation

Article 3

Degrading treatment

Conditions in which asylum-seekers were held in airport transit zone: violation

Facts – The four applicants, who were asylum-seekers, were held in the international transit zone of Sheremetyevo Airport in Russia for periods ranging from five months to one year and ten months after being refused entry into Russia. They had to sleep on a mattress on the floor in the bo arding area of the airport, which was constantly lit, crowded and noisy, and were sustained by emergency rations provided by the Russian office of UNHCR. There were no showers. In the Convention proceedings, they complained that they had been unlawfully de prived of their liberty (Article 5 § 1 of the Convention) and of the conditions in which they were held (Article 3).

In a judgment of 28 March 2017 (see Information Note 205 ), a Chamber of the Court held, by six votes to one, that there had been a violation of Article 5 § 1 of the Convention. The confinement of the applicant asylum-seekers for lengthy periods in the airport transit zone without the possibility to enter Russian territory or a State ot her than that which they had left amounted to a de facto deprivation of liberty for which there was no legal basis in Russian law. The Chamber also found, by six votes to one, a violation of Article 3 on account of the conditions the applicants were forced to endure in the transit zone over extended periods.

On 18 September 2017 the case was referred to the Grand Chamber at the Government’s request.

Law

Preliminary considerations – The right to have one’s liberty restricted only in accordance with the law and the right to humane conditions, if detained under State control, were minimum guarantees that had to be available to those under the jurisdiction of all member States, despite t he mounting “migration crisis” in Europe.

Article 5 § 1

(a) Applicability

In drawing the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of asylum-seekers, the Court’s approach had be practi cal and realistic, having regard to the present-day conditions and challenges. It was important in particular to recognise the States’ right, subject to their international obligations, to control their borders and to take measures against foreigners circu mventing restrictions on immigration.

In determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in airport transit zones and reception centres for the identification a nd registration of migrants, the factors taken into consideration by the Court might be summarised as follows: (i) the applicants’ individual situation and their choices; (ii) the applicable legal regime of the respective country and its purpose; (iii) the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events; and (iv) the nature and degree of the actual restrictions imposed on or experienced by the applicants

In the present case, ha ving regard to the known facts about the applicants and their respective journeys and, notably, the fact that they had not arrived in Russia because of a direct and immediate danger to their life or health but rather due to specific circumstances of their travel routes, there had been no doubt that they had entered the airport involuntarily, but without the Russian authorities being involved. It was therefore clear that, in any event, the Russian authorities had been entitled to carry out the necessary veri fications and examine their claims before deciding whether or not to admit them.

The Russian authorities had not sought to deprive the applicants of their liberty and they had denied them entry at once. The applicants had remained in the transit zone essen tially because they had been awaiting the outcome of their asylum proceedings.

The right of States to control the entry of foreigners onto their territory necessarily implied that admission authorisation might be conditional on compliance with relevant req uirements. Therefore, in the absence of other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter could not be described as deprivation of liberty imputable to the State, since in such cases the State authorities had taken vis-à-vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications

It was further relevant whether, in line with the purpose of th e applicable legal regime, procedural guarantees concerning the processing of the applicants’ asylum claims and domestic provisions fixing the maximum duration of their stay in the transit zone had existed and whether they had been applied in the present c ase.

On the facts, the respondent Government had been unable to refer to any domestic provisions fixing the maximum duration of the applicants’ stay in the transit zone. Furthermore, in disregard of the Russian domestic rules granting every asylum-seeker t he right to be issued with an examination certificate and to be placed in temporary accommodation facilities pending examination of the asylum application, the applicants had been essentially left to their own devices in the transit zone. The Russian autho rities had not acknowledged that they had been in any manner responsible for the applicants, thereby leaving the latter in a legal limbo without any possibility of challenging the measures restricting their liberty. While in the transit zone, all four appl icants had little information regarding the outcome of their respective applications for refugee status and temporary asylum.

As long as the applicant’s stay in the transit zone did not exceed significantly the time needed for the examination of an asylum request and there were no exceptional circumstances, the duration in itself was not likely to affect the Court’s analysis on the applicability of Article 5 in a decisive manner. That was particularly so where the individuals, while waiting for the processi ng of their asylum claims, had benefited from procedural rights and safeguards against excessive waiting periods. The fact that domestic regulation existed limiting the length of stay in the transit zone was of significant importance in this regard.

The ap plicants’ situation had been very seriously influenced by delays and inaction on the part of the Russian authorities which had been clearly attributable to them and had been not justified by any legitimate reasons.

The case file contained no indication tha t the applicants had failed to comply with the legal regulations in place or had not acted in good faith at any time during their confinement in the transit zone or at any stage of the domestic legal proceedings by, for instance, complicating the examinati on of their asylum cases.

Even though the applicants had been largely left to their own devices within the perimeter of the transit zone, the size of the area and the manner in which it had been controlled had been such that the applicants’ freedom of move ment had been restricted to a very significant degree, in a manner similar to that characteristic of certain types of light regime detention facilities.

Leaving the airport transit zone in a direction other than the territory of Russia would have required planning, contacting airlines, purchasing tickets and possibly applying for a visa depending on the destination. The Government had failed to substantiate their assertion that despite these obstacles “the applicants had been free to leave Russia at any tim e and go wherever they wished”. The practical and real possibility for the applicants to leave the airport transit zone and do so without any direct threat to their life or health, as known by or brought to the attention of the authorities at the relevant time, had to be convincingly shown to exist.

Having regard to various factors – in particular the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the largely irregular character of the applicants’ stay in the airp ort transit zone, the excessive duration of such stay and considerable delays in domestic examination of the applicants’ asylum claims, the characteristics of the area in which the applicants had been held and the control to which they had been subjected d uring the relevant period of time and the fact that the applicants had no practical possibility of leaving the zone – it was concluded that the applicants had been deprived of their liberty within the meaning of Article 5 of the Convention.

Article 5 § 1 was therefore applicable.

(b) Merits

The Court was fully conscious of the difficulties that member States might face during periods when asylum-seekers arrived in large numbers at their borders. Subject to the prohibition of arbitrariness, the lawfulness r equirement of that provision might be considered generally satisfied by a domestic legal regime that provided, for example, for no more than the name of the authority competent to order deprivation of liberty in a transit zone, the form of the order, its p ossible grounds and limits, the maximum duration of the confinement and, as required by Article 5 § 4, the applicable avenue of judicial appeal.

Furthermore, Article 5 § 1 (f) did not prevent States from enacting domestic law provisions that formulated the grounds on which such confinement could be ordered with due regard to the practical realities of a massive influx of asylum-seekers. In particular, paragraph 1 (f) did not prohibit deprivation of liberty in a transit zone for a limited period on grounds t hat such confinement was generally necessary to ensure the asylum seekers’ presence pending the examination of their asylum claims or, moreover, on grounds that there was a need to examine the admissibility of asylum applications speedily and that, to that end, a structure and adapted procedures had been put in place at the transit zone.

There had been no strictly defined statutory basis in Russian law capable of serving as grounds for justifying the applicants’ deprivation of liberty.

This in itself would have been sufficient to find a violation of Article 5 § 1. However, there were additional factors worsening the applicants’ respective situations.

The applicants’ access to the asylum procedure had been considerably impeded as a result of their detention, as there had been no information available on asylum procedures in Russia in the transit zone and their access to legal assistance had been severely restricted.

The applicants had experienced serious delays when attempting to submit and register their asy lum applications and, despite their written requests, had not been issued and served with examination certificates as required by the domestic law.

There had been delays communicating to the applicants some of the decisions taken by the Russian administra tive and judicial bodies.

Moreover, the applicants had been confined in a place which had been clearly inappropriate for any long-term stay.

Lastly, the duration of each applicant’s stay in the airport transit zone had been considerable and clearly excessi ve in view of the nature and purpose of the procedure concerned, ranging from five months to over a year and nine months.

The applicants’ detention for the purposes of the first limb of paragraph 1 (f) of Article 5 had fallen short of the Convention standards.

Conclusion : violation (unanimously).

Article 3: On the basis of the available material, the Court could clearly see that the conditions of the applicants’ stay in the airport transit zone had been unsuitable for an enforced long-term stay. In its view, a situation where a person not only had to sleep for months at a stretch on the floor in a constantly lit, crowded and noisy airport transit zone without unimpeded access to shower or cooking facilities and without outdoor exercise, but also had no access to medical or social assistance, fell short of the minimum standards of respect for human dignity.

This situation had b een aggravated by the fact that the applicants had been left to their own devices in the transit zone, in disregard of the Russian domestic rules granting every asylum-seeker the right to be issued with an examination certificate and to be placed in tempor ary accommodation facilities pending examination of the asylum application.

Three of the applicants had been eventually recognised by the UNHCR as being in need of international protection, which had suggested that their distress had been accentuated on ac count of the events that they had been through during their migration.

Lastly, the detention had been of extremely long duration for each of the applicants. The applicants’ detention had lasted for many months in a row (between nearly five and twenty-two m onths).

Taken together, the appalling material conditions which the applicants had to endure for such long periods of time and the complete failure of the authorities to take care of the applicants constituted degrading treatment contrary to Article 3.

The applicants had been under the respondent State’s control and in their custody throughout the relevant period of time.

Conclusion : violation (unanimously).

Article 41: sums ranging from EUR 15,000 to EUR 26,000 each in respect of non-pecuniary damage.

(See the Factsheet on Detention conditions and treatment of prisoners ; see also Amuur v. France , 19776/92 , 25 June 1996 ; Shamsa v. Poland , 45355/99 and 45357/99, 27 November 2003, Information Note 58 ; Mogoş v. Romania (dec.), 20420/02, 6 May 2004, Information Note 79 ; Mahdid and Haddar v. Austria (dec.), 74762/01, 8 December 2005, Information Note 81 ; Riad and Idiab v. Belgium , 29787/03 and 29810/03, 24 January 2008, Information Note 104 ; Nolan and K. v. Russia , 2512/04, 12 February 2009, Information Note 116 ; M.S.S. v. Belgium and Greece [GC], 30696/09, 21 January 2011, Information Note 137 ; Kanagaratnam v. Belgium , 15297/09, 13 December 2011, Information Note 147 ; Ananyev and Others v. Russia , 42525/07 and 60800/08, 10 Ja nuary 2012, Information Note 148 ; Suso Musa v. Malta , 42337/12, 23 July 2013, Information Note 165 ; Gahramanov v. Azerbaijan (dec.), 26291/06, 1 5 October 2013, Information Note 168 ; Muršić v. Croatia [GC], 7334/13, 20 December 2016, Information Note 200 ; and Khlaifia and Others v. Ita ly [GC], 16483/12, 15 December 2016, Information Note 202 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes