Information Note on the Court’s case-law 204

February 2017

S.K. v. Russia - 52722/15

Judgment 14.2.2017 [Section III]

Article 13

Effective remedy

Lack of effective remedy in respect of both administrative and temporary asylum proceedings: violation

Article 2

Expulsion

Proposed deportation to Syria: deportation would constitute a violation

Article 3

Expulsion

Proposed deportation to Syria: deportatio n would constitute a violation

Facts – The applicant, a Syrian national, arrived in Russia in October 2011. In February 2013 he was found guilty of an administrative offence of remaining in Russia after the expiry of his visa and sentenced to a penalty of forcible administrative removal. In March 2015 the Supreme Court of the Dagestan Republic upheld that judgment and the applicant was placed in immigration detention. The administrative removal was not enforced and in May 2015 he applied for temporary asylu m. His application was dismissed and that decision was upheld on review. He sought judicial review of the decision which was refused and his appeal against that refusal was dismissed in June 2016.

On 26 October and 12 November 2015 the Court decided to indicate to the Russian Government, under Rule 39 of the Rules of Court that the applicant should not be expelled to Syria for the duration of the proceedings before the Court.

In the Convention proceedings the applicant complained, inter alia , that his administrative removal to Syria would entail a violation of Articles 2 and 3 and that he had no effective remedy under Article 13.

Law

Articles 2 and 3: The applicant’s complaint had been made in the context of the continuing hostilities in Syria, and in particular in his home town of Aleppo, as well as on account of the possibility that he would be drafted into active military servic e, thus intensifying the risks to his life and limb. The security and humanitarian situation and the type and extent of hostilities in Syria had deteriorated dramatically between the applicant’s arrival in Russia and the refusal of his temporary asylum app lication. The available information contained indications that, despite the agreement on the cessation of hostilities signed in February 2016, various parties to the aggressions were employing methods and tactics of warfare that increased the risk of civil ian casualties. The available material disclosed reports of indiscriminate use of force and attacks against civilians.

Conclusion : deportation would constitute a violation (unanimously).

Article 13 in conjunction with Articles 2 and 3: Any claim that there existed substantial grounds for fearing a real risk of treatment contrary to Articles 2 and 3 required that the person concerned should have access to a remedy with automatic suspensive effect and that there should be independent and rigorous scrutiny.

( a) Administrative proceedings – An ordinary appeal against a removal imposed by a first-instance court had an automatic suspensive effect, in the sense that by operation of the law the removal was not to be carried out until the statutory time-limit for a ppeal had expired or until the appeal decision had been delivered. The applicant was therefore protected from removal until March 2015, when the Supreme Court of the Dagestan Republic upheld the administrative removal. Although Article 13 did not compel Co ntracting States to set up a further level of appeal in this type of case, Russian domestic law provided for review of final judgments. In such a case, suspension was not automatic since only a prosecutor could request it. Consequently, the review procedur e was not an effective remedy for the purposes of Article 13 in the context of a complaint arising under Articles 2 and 3. Moreover, independent and thorough scrutiny required under Article 13 implied that the remedy was capable of offering protection agai nst removal where such scrutiny disclosed substantial grounds to believe that there was a real risk of ill-treatment in the case of the penalty of removal being imposed and enforced. At the time the applicant was found guilty of the offence, the domestic c ourts had no choice but to impose the mandatory penalty of administrative removal, irrespective of the validity of the arguments relating to Article 2 or 3 of the Convention.

(b) Temporary asylum procedure – While a successful application for temporary a sylum would be capable of suspending enforcement of a penalty of administrative removal, in the present case the applicant had been refused temporary asylum and thus there was no suspensive effect. The Court did not rule out that the temporary asylum proce dure was, in theory, capable of ensuring a thorough assessment of the risks arising under Articles 2 and 3 and noted that the granting of temporary asylum prevented a foreigner’s removal from Russia, albeit for a limited period of time. However, in the pre sent case, the national authorities had considered without any justification that the situation of ongoing hostilities in Syria did not justify temporary asylum and had based their decision on considerations that fell outside the scope of the thorough scru tiny required.

Conclusion : violation (unanimously).

The Court also held, unanimously, that there had been a breach of Article 5 § 1 (applicant’s removal was not practicable) and Article 5 § 4 (no procedure at the applicant’s disposal for judicial review of the lawfulness of his detention).

Article 46: The applicant’s continued detention did not comply with Article 5 § 1 and was not accompanied by the requisite procedural guarantees. General measures were expected from the respondent State in order to correc t the situation (see Kim v. Russia , 44260/13, 17 July 2014, Information Note 176 ). The appropriate way to deal with the matter would be to release the applicant without delay and no later than on the day following notification that the present judgment had become final.

Article 41: EUR 7,500 in respect of non-pecuniary damage.

(See L.M. and Others v. Russia , 40081/14, 40088/14 and 40127/14, 15 October 2015, Information Note 189 ; and Allanazarova v. Russia , 46721/15, 14 February 2017, Information Note 204 , summary above, page XX)

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