Communicated on 31 March 2016

THIRD SECTION

Application no. 61998/15 M.S. against Russia lodged on 17 December 2015

STATEMENT OF FACTS

The applicant is a Tajikistani national who was born in 1989 and is currently detained in the Special Facility for the Temporary Detention of Foreigners of Moscow Region in the village of Sakhorovo (also spelled “ Sakharovo ”), in the settlement of Vorontsovskoye (also spelled “ Voronovskoye ”. He is represented before the Court by Ms D.V. Trenina and Ms N. Yermolayeva , lawyers practising in Moscow.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that his expulsion to Tajikistan would subject him to a real risk of ill-treatment.

2. The applicant also complains under Article 5 §§ 1 and 4 of the Convention of the unlawfulness of his detention pending expulsion, owing to the absence of any time-limit in respect of that detention and the fact that there was no judicial review.

3. The applicant alleges under Article 13 of the Convention that his arguments concerning the risk of ill-treatment were not thoroughly examined by the Russian courts and that the refugee status and asylum procedure had no automatic suspensive effect vis-à-vis his expulsion as it was ordered while the proceedings were still pending.

QUESTIONS TO THE PARTIES

1. In the light of the applicant ’ s claims and the documents that have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced?

In particular, the parties are requested to make submissions regarding the following issues:

- In various domestic proceedings and before the Court, did the applicant adduce evidence capable of proving that there were substantial grounds for fearing a real and imminent threat to life and/or ill-treatment? In their turn, did the national authorities dispel the doubts that might exist about such a risk (see Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008)? Did the applicant obtain an “independent and rigorous scrutiny” of this claim?

2. Does the applicant have at his disposal an effective domestic remedy for the complaints under Article 3, as required by Article 13 of the Convention?

In particular:

(a) Did/does any specific Article of the Code of Administrative Offences make provision for ( i ) a thorough examination of the risk of potential ill ‑ treatment, in line with the Court ’ s relevant standards and principles, and (ii) granting adequate redress in the case of substantial grounds being found to confirm such a risk, given that Article 18.8 § 3 of the Code of Administrative Offences provides for expulsion in all cases ?

(b) As to the temporary asylum procedure and that of the refugee status, has the assessment of the applicant ’ s situation been based on clearly predictable criteria that are broad enough to accommodate the substance of an issue under Article 3 of the Convention? Did/does any specific provision of the domestic legislation provide that a pending application for temporary asylum and refugee status and a pending judicial review in respect of a refusal to grant such asylum or status each have an “automatic suspensive effect” vis-à-vis a final expulsion order (see Savriddin Dzhurayev v. Russia , no. 71386/10, § 31, ECHR 2013; Tukhtamurodov v. Russia ( dec. ), no. 21762/14, 20 January 2015, §§ 24-27; Khamrakulov v. Russia , no. 68894/13, § 61, 16 April 2015; and L.M. and Others v. Russia , §§ 67 and 100 ) ? Does the absence of such an effect, the narrow scope of assessment and the temporary nature of the solution arising from a refusal to grant temporary asylum or refugee status render this remedy ineffective or mean that it need not be exhausted before an application is lodged with the Court?

The respondent Government are invited to refer to specific provisions of domestic law and to provide relevant examples of the case ‑ law of domestic courts in this respect.

3. Was there a violation of Article 5 § 1 (f) of the Convention in respect of the applicant ’ s detention pending expulsion? Were the proceedings relating to the detained applicant ’ s removal been conducted with special diligence (see Kim v. Russia , no. 44260/13, § 56, 17 July 2014)? Did the court decisions ordering the applicant ’ s detention specify the time-limit for such detention? If not, until what date may the applicant be deprived of his liberty on the basis of those decisions?

4. Was there a violation of Article 5 § 4 of the Convention? In particular, did the applicant have at his disposal a procedure for a periodic judicial review of the lawfulness of his detention?