Communicated on 24 March 2015

FIRST SECTION

Application no. 78386/14 David Borisovich SAAKYAN against Russia lodged on 11 December 2014

STATEMENT OF FACTS

1 . The applicant, Mr David Borisovich Saakyan , is a stateless person, who was born in 1987 and is currently detained in Moscow. He is represented before the Court by Ms O. Plykina , a lawyer practising in Moscow.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . 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. He appears to have no identity documents. The applicant ’ s mother, brother and sister are Russian nationals; his father died in 2006.

4 . On 18 September 2013 the police apprehended the applicant during an identity check on the Moscow underground because he did not have identity documents and could not show that his residence in Russia was legal. The 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.

5 . 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 (RUB) and forcible administrative removal from Russia. The judge described the applicant as an Armenian national and justified the sentence as follows:

“In deciding on the appropriate sentence, I take into account the nature of the administrative offence and the information about the character of the defendant who has pleaded guilty but who has a criminal record, has lived in the Russian territory and in particular in the city of Moscow for a long time without legal grounds or identity documents and who is also a fugitive from justice in Armenia.”

The court ruled that the applicant should be detained in the Moscow detention centre for aliens until his expulsion.

6 . By 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 indicated that it was unable to issue a travel document for him.

7 . On 14 August 2014 the Moscow City Court heard an appeal against the expulsion order and dismissed it. In so far as the applicant sought to rely on Article 8 of the Convention, indicating that his elderly mother needed his assistance, the City Court rejected his arguments as follows:

“It follows from the submitted documents that the defendant ’ s mother lives in the Belgorod Region. There is no indication that the defendant lives with her under the same roof. Accordingly, the court does not consider that the punishment in the form of administrative removal from Russia interferes with the right to respect for private or family life or home. Besides, the defendant was apprehended in Moscow where he had committed the administrative offence; in his statement [to the police] he did not mention that he lived with his mother in the Belgorod Region or that she needed his assistance; he did not list any employment and produced a release certificate, according to which he had served a criminal sentence from 30 August 2006 to 29 August 2008.”

The City Court also 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”.

8 . 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.

9 . 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”.

10 . 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. Relevant domestic law

11 . Article 18.8 of the Code of Administrative Offences provides as follows:

“1. An infringement by a foreign national or a stateless person of the procedure for entry to the Russian Federation or the regulations on stay or residence in the Russian Federation, including ... a breach of the regulations on migration, travel or choice of permanent or temporary residence ... shall be punishable by an administrative fine ... and by possible administrative removal from the Russian Federation.

1.1. A breach of the regulations on stay or residence in the Russian Federation committed by a foreign national or a stateless person who has no document confirming the right to reside or stay in the Russian Federation ... shall be punishable by an administrative fine of between RUB 2,000 and 5,000 and by administrative removal from the Russian Federation.

...

3. The offences described in paragraphs 1, 1.1 ... above, if committed in the federal-level cities of Moscow and St Petersburg or in the Moscow or Leningrad Regions, shall be punishable by an administrative fine of between RUB 5,000 and 7,000 and by administrative removal from the Russian Federation.”

12 . Articles 3.10 (5) and 27.19 (3) of the same Code allow courts to remand a foreign national or a stateless person in custody pending his or her administrative removal.

COMPLAINTS

13 . The applicant complains under Article 5 §§ 1 and 4 of the Convention that he continues to be detained “with a view to deportation” , although no State is ready to accept him, and that the Russian law makes no provision for a periodic review of his detention.

14 . The applicant complains under Article 8 of the Convention that, in issuing the removal order, the Russian courts did not take into account his family connections in Russia or the fact that his mother, sister and brother were all Russian nationals.

QUESTIONS TO THE PARTIES

1. Were the proceedings in which the applicant ’ s expulsion from Russia was ordered compatible with the requirements of Article 8 of the Convention ? In particular, did the provision under with the applicant was charged (Article 18.8 § 3 of the Code of Administrative Offence) allow the domestic courts to assess the proportionality of the interference and to waive, if necessary, the application of the expulsion measure (see Gablishvili v. Russia , no. 39428/12 , §§ 47, 51-53 and 60, 26 June 2014)? The Government are requested to submit the relevant case-law of the Russian courts in the form of full judgments (as opposed to partial citations or extracts).

2. Was there a violation of Article 5 § 1 (f) of the Convention? In particular, were the expulsion proceedings prosecuted with due diligence? When did the Russian authorities first contacted the Armenian consulate in Moscow with a request for a travel document for the applicant? Could the detention be said to have been effected with a view to the applicant ’ s deportation even after this was no longer feasible (see Mikolenko v. Estonia , no. 10664/05, §§ 64-65, 8 October 2009)?

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

4. Having regard to the applicant ’ s situation in the instant case and to the Court ’ s findings in previous cases that the detention pending expulsion is excessive in its duration or is not prosecuted with due diligence or continues even after the expulsion has ceased to be a realistic prospect and that there is no judicial control over the length of such detention (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; Rakhimov v. Russia , no. 50552/13 , §§ 148-150, 10 July 2014; Egamberdiyev v. Russia , no. 34742/13 , § 64, 26 June 2014; Kim , cited above, and Eshonkulov v. Russia , no. 68900/13 , § 59, 15 January 2015 ), are these shortcomings indicative of a systemic problem or a structural deficiency of the Russian law? Is the present case suitable for the pilot-judgment procedure?

QUESTIONS TO THE RESPONDENT GOVERNMENT

5. Have the Government complied with the Court ’ s indication of general measures given in the Kim judgment under Article 46 of the Convention (see Kim v. Russia , no. 44260/13 , §§ 71-72, 17 July 2014) , and, if so, how did this affect the applicant ’ s situation in the present case?

6. How many persons are currently in custody pending their administrative removal from Russia? Of those, how many persons have been identified as being stateless or otherwise ineligible for removal from Russia (for instance, there is no possibility to obtain a travel document or a laissez-passer)?

7. Is there any procedure for a review of the detention pending expulsion which is capable of ensuring that the detention remains connected to the ground of detention relied upon by the domestic authorities, that the place and conditions of detention are appropriate, and that the length of the detention has not exceeded that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009)?