Communicated on 12 November 2015

THIRD SECTION

Application no . 52722/15 S .K . against Russia lodged on 2 3 October 2015

STATEMENT OF FACTS

The applicant, a Syrian national, arrived in Russia in October 2011 under a visa. He started to live together with Ms B., a Russian national. The applicant ’ s visa expired in February 2012. In November 2013 they had a child together. In April 2014 they got married.

On 4 March 2015 the appeal court upheld the first-instance judgment by which the applicant had been found guilty of the offence under Article 18.8 § 1.1 of the Code of Administrative Offences (CAO) for overstay in Russia after the expiry of the visa and had been sentenced to a fine and the mandatory penalty of administrative expulsion from Russia.

In August 2015 the local migration authority dismissed the applicant ’ s application for temporary asylum. In September 2015 the Federal Migration Service upheld this decision.

T he applicant has been kept in a detention centre since February 2015 .

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that the expulsion order exposes him to a risk of ill-treatment and a risk of death, on account of the continuously aggravating situation of violence in Syria and also taking into account the fact that he will be called for active military service. The applicant also argues in substance under Article 13 of the Convention that his arguments were not thoroughly examined at the domestic level and that the temporary asylum procedure had no automatic suspensive effect vis-à-vis the expulsion order.

The applicant also alleges under Article 5 of the Convention that his detention with a view to expulsion was not and is not subject to any (maximum) time-limit and was arbitrary; that his continuous detention has not been subject to any periodic review nor does he have a possibility to take proceedings on an application for release.

Lastly, the applicant complains that the decision to expel him from Russia and the enforcement of this decision constitute/will constitute a disproportionate interference with his “family life”.

QUESTIONS

1. Will there be a violation of Article 2 or 3 of the Convention on account 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)? Does the current situation of generalised violence in Syria , per se , make any removal to this country incompatible with Articles 2 and 3 of the Convention?

2.1. Did or does the applicant have effective remedies for his above complaint, as required under Article 13 of the Convention? In particular:

- Did/does any specific Article of the Code of Administrative Offences make provision for ( i ) a thorough examination of an issue of a risk of death or ill-treatment, in line with the Court ’ s relevant standards and principles, and ( i ) granting adequate redress on account of substantial grounds confirming such a risk?

- As to the temporary asylum procedure, has the assessment of the applicant ’ s situation been based on sufficiently clear and foreseeable criteria that are wide enough to deal properly with the substance on an issue under Article 2 or 3 of the Convention? Did/does any specific provision of the Refugees Act or other legislation provide that a pending application for temporary asylum and a pending judicial review in respect of a refusal to grant such asylum 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 , cited above, §§ 67 and 100)? Do the absence of such an effect, the narrow scope of assessment and the temporary nature of the solution arising from a grant of temporary asylum make this remedy ineffective/not to be exhausted before lodging an application before the Court?

2.2. The respondent Government is 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. Has there been a violation of Article 5 § 1 of the Convention, in particular because no proceedings relating to expulsion have been “in progress” between March and August 2015 and later on, if the temporary asylum procedure is not to be taken into consideration for this purpose?

4. Have the absence of a periodic review of the detention matter and of a possibility to take proceedings with an application for release resulted in a violation of Article 5 § 4 of the Convention?

5. Has there been/will there be a violation of Article 8 of the Convention on account of the decision to remove the applicant from Russia, on account of the enforcement of this decision and the automatically ensuing 5-year ban on reentry to Russia? Noting the mandatory penalty of expulsion under Article 18.8 § 1.1 of the CAO, were the courts deprived of a margin of appreciation necessary for a proper proportionality assessment of the Article 8 issue?